Dyktynski v BHP - [2001] NSWCA 54

Reported Decision:
(2001) 50 NSWLR 710
(2001) 21 NSWCCR 581

New South Wales

Court of Appeal

CITATION: Dyktynski v BHP [2001] NSWCA 54

FILE NUMBER(S): CA 40894/99

HEARING DATE(S): 14/02/01

JUDGMENT DATE:
14 February 2001

PARTIES :

Samuel Scott Dyktynski
v
BHP Titanium Minerals Pty Ltd

JUDGMENT OF: Spigelman CJ at 15; Meagher JA at 2; Powell JA at 16

LOWER COURT JURISDICTION : Compensation Court

LOWER COURT
FILE NUMBER(S) : 3969/96

LOWER COURT
JUDICIAL OFFICER : O'Toole CCJ

COUNSEL: Appellant: McManamey
Respondent: J Hislop QC & P Perry
Appellant: McManamey
Respondent: J Hislop QC & P Perry

SOLICITORS: Appellant: Stacks The Law Firm
Respondent: Sparke Helmore

CATCHWORDS: Workers Compensation - Costs - s110 Workplace Injury Management and Workers Compensation Act 1998 - interest payable on costs not quantified at time order is made - date from which costs order operates - court's discretion to award interest.

LEGISLATION CITED: Workplace Injury Management and Workers Compensation Act 1998, s110

CASES CITED:
Minister Administering the Environmental Planning and Assessment Act, 1979 v Carson (1994) 35 NSWLR 342
Magick v Department of Health (1998)
Taylor v TNT Australia Limited (1999) 18 NSW Comp CR 6

DECISION: 1) Judgment below set aside; in lieu thereof a declaration that the appellant is entitled to interest on the full amount of costs;; 2) Respondent to pay the appellant's costs of the appeal and in the court below.

THE SUPREME COURT

OF NEW SOUTH WALES

COURT OF APPEAL

CA: 40894/99

SPIGELMAN CJ

MEAGHER JA

POWELL JA

Wednesday 14 February 2001

SAMUEL SCOTT DYKTYNSKI v BHP TITANIUM MINERALS PTY LTD

JUDGMENT

1 SPIGELMAN CJ: I invite Meagher JA to deliver the first judgment.

2 MEAGHER JA: This is an appeal from her Honour Judge O'Toole. It concerns the question of when interest runs on a costs order.

3 The position is that on 3 October 1997 her Honour made orders in favour of a worker which included the order that the respondent (that is the employer) pay the applicant's costs. The costs were never assessed but they were eventually agreed by the solicitors for the parties and payment was made fairly soon after that agreement, on 15 September 1998.

4 The solicitors for the worker, the present appellant, then sought interest on the costs. This request was refused by the employer, which led to the present application.

5 The application is a notice of motion whereby the worker seeks orders for interest on his costs calculated at various different dates. Her Honour dismissed the application and I shall come to her reasons in a moment. Before I do so I think it is necessary to set out briefly the statutory provisions governing the matter.

6 There is only one section of one Act which seems to me of any significance; namely, s 110 of the Workplace Injury Management and Workers Compensation Act (1998). It provides in sub-s (1):

"(1) Unless the Compensation Court orders in any particular case that interest be not payable, interest is payable on so…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2001] NSWCA 54
Decision Date: 14 February 2001

CaseChat Overview and Summary

The appellant, Dyktynski, appealed to the Court of Appeal of New South Wales against a decision concerning the award of interest on costs. The dispute centred on whether interest was payable on a costs order made in favour of the appellant, and if so, from what date.

The primary legal issue before the Court of Appeal was the interpretation of section 110 of the *Workplace Injury Management and Workers Compensation Act 1998* (NSW) concerning the entitlement to interest on costs that had not been quantified at the time the costs order was made. The court was required to determine the date from which such interest should commence to accrue and the extent of the court's discretion in awarding interest.

The Court of Appeal, comprising Spigelman CJ, Meagher and Powell JJA, held that section 110 of the Act entitled the appellant to interest on the full amount of costs, even though those costs were not quantified at the time the initial order was made. The court reasoned that the purpose of the section was to compensate for the delay in payment of costs. Consequently, the judgment below was set aside, and in its place, a declaration was made that the appellant was entitled to interest on the full amount of costs. The respondent was ordered to pay the appellant's costs of the appeal and in the court below.

Orders

Orders of the court

1) Judgment below set aside; in lieu thereof a declaration that the appellant is entitled to interest on the full amount of costs;; 2) Respondent to pay the appellant's costs of the appeal and in the court below.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Dyktynski v BHP [2001] NSWCA 54
FILE NUMBER(S):	CA 40894/99
HEARING DATE(S):	14/02/01
JUDGMENT DATE:	14 February 2001
PARTIES :	Samuel Scott Dyktynski v BHP Titanium Minerals Pty Ltd
JUDGMENT OF:	Spigelman CJ at 15; Meagher JA at 2; Powell JA at 16

LOWER COURT JURISDICTION :	Compensation Court
LOWER COURT FILE NUMBER(S) :	3969/96
LOWER COURT JUDICIAL OFFICER :	O'Toole CCJ

COUNSEL:	Appellant: McManamey Respondent: J Hislop QC & P Perry Appellant: McManamey Respondent: J Hislop QC & P Perry
SOLICITORS:	Appellant: Stacks The Law Firm Respondent: Sparke Helmore
CATCHWORDS:	Workers Compensation - Costs - s110 Workplace Injury Management and Workers Compensation Act 1998 - interest payable on costs not quantified at time order is made - date from which costs order operates - court's discretion to award interest.
LEGISLATION CITED:	Workplace Injury Management and Workers Compensation Act 1998, s110
CASES CITED:	Minister Administering the Environmental Planning and Assessment Act, 1979 v Carson (1994) 35 NSWLR 342 Magick v Department of Health (1998) Taylor v TNT Australia Limited (1999) 18 NSW Comp CR 6
DECISION:	1) Judgment below set aside; in lieu thereof a declaration that the appellant is entitled to interest on the full amount of costs;; 2) Respondent to pay the appellant's costs of the appeal and in the court below.