El Tarraf v Linknarf Limited - [2004] NSWSC 244

CITATION: El Tarraf v Linknarf Limited [2004] NSWSC 244

HEARING DATE(S): 19 December 2003, 20, 27 February 2004

JUDGMENT DATE:
1 April 2004

JURISDICTION:
Common Law Division

JUDGMENT OF: Studdert J

DECISION: (1) Judgment for the plaintiff in the sum of $122,680.65. (2) Order that the defendant pay fifty percent of the plaintiff's costs of the proceedings before this Court, excluding the plaintiff's costs for the time lost, the subject of order 3, and that the defendant also pay fifty percent of the plaintiff's costs of the hearing before Newman AJ. (3) Order that the plaintiff pay the defendant's costs thrown away by reason of the disruptions of the hearing before me on 10, 12, 13 and 14 February 2003.

LEGISLATION CITED: Workers' Compensation Act, ss 63, 151B, 151Z
Motor Accidents Compensation Act, ss 50, 130
Supreme Court Act, s 76
Supreme Court Rules, Pt 52A rr 4,33

CASES CITED: Berrico Estate Pty Limited v Andersen [2003] NSWCA 23
Connors v Simplot Pty Limited [2001] NSWCA 205
Danby v BBC Hardware Limited [2001] NSWCA 89
El Tarraf v Linknarf [2003] NSWSC 1144
Quach v Mustafa (unreported) NSWCA, 15 June 1995
Tabvena v Oag [2002] NSWCA 61

PARTIES :
Joe El Tarraf (Plaintiff)
Linknarf Limited (Defendant)

FILE NUMBER(S): SC 20162/99

COUNSEL: A.J. Bartley SC (Plaintiff) 19.12.03
K. Rewell SC/C. Thompson (Plaintiff) 20.2.04
C. Hoeben SC/C. Thompson (Plaintiff) 27.2.04
P. Deakin QC/G. Nolan (Defendant)

SOLICITORS: Carroll & O'Dea (Plaintiff)
Sparke Helmore (Sydney (Defendant)

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

STUDDERT J

Thursday 1 April 2004

20162/99 JOE EL TARRAF v LINKNARF LIMITED
JUDGMENT

1 HIS HONOUR: On 8 December 2003 I published my assessment of damages in this matter (El Tarraf v Linknarf [2003] NSWSC 1144) and directed that the matter be relisted to address the issues of interest, judgment and costs.

2 On 20 February 2004 Mr Rewell of Senior Counsel appeared with Mr Thompson for the plaintiff. The Court was then advised that no claim for interest was being pursued. This left the issues of judgment and costs.

3 On 20 February 2004 Mr Rewell submitted that judgment was to be entered for the gross amount of the damages I assessed and that no deduction should be made for workers’ compensation payments that had been made. On an earlier occasion Mr Bartley had submitted that the amount of the “payback” was, in any event, challenged. On 20 February 2004 Mr Deakin tendered two affidavits by Mark Nelson sworn 18 December 2003 and 19 February 2004. Mr Nelson was not required for cross examination but Mr Rewell submitted that the amount of the “payback” was irrelevant for present purposes since it should not be deducted from the damages assessed in determining the proper amount for which judgment was to be entered.

4 Mr Deakin was not in a position to argue this, not having realised previously that the plaintiff challenged the defendant’s contention that the plaintiff was only entitled to judgment for the…

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.

Continue reading El Tarraf v Linknarf Limited

Details

AGLC: El Tarraf v Linknarf Limited [2004] NSWSC 244
Case: [2004] NSWSC 244
Decision Date: 1 April 2004

CaseChat Overview and Summary

This case involved a dispute between Joe El Tarraf (the plaintiff) and Linknarf Limited (the defendant) over the amount of damages to be awarded to the plaintiff for an injury sustained during his employment. The plaintiff had previously received workers' compensation payments for the injury and argued that these should not be deducted from the damages awarded. The court had to decide whether the workers' compensation payments should be deducted from the damages and, if so, at what point in time the obligation to repay the compensation should be recognised. The court also had to decide on the issue of costs between the parties.

The court found that under the Workers' Compensation Act 1987, the damages recovered were the gross damages assessed, that is before bringing into account any "payback" figure. However, the court determined that the obligation to repay the compensation benefits should be recognised before judgment was entered. The court reached this conclusion based on the decisions of the Court of Appeal in Danby v BBC Hardware Limited, Connors v Simplot Pty Limited, and Tabvena v Oag, where the Court of Appeal had deducted the workers' compensation benefits from the damages assessed to determine the amount for which judgment was to be entered.

As for the issue of costs, the plaintiff argued that he had sufficient reason to commence and continue the proceedings in the Supreme Court and that he should therefore be awarded costs. The court agreed with the plaintiff's submission, finding that the plaintiff had reasonable grounds for expecting that he would recover an amount in excess of the threshold for automatic entitlement to costs under the Supreme Court Rules. However, the court also ordered that the plaintiff pay the defendant's costs thrown away by reason of the disruptions of the hearing before the court on 10, 12, 13 and 14 February 2003.

Final orders:
1. Judgment for the plaintiff in the sum of $122,680.65.
2. Order that the defendant pay fifty percent of the plaintiff's costs of the proceedings before this Court, excluding the plaintiff's costs for the time lost, the subject of order 3, and that the defendant also pay fifty percent of the plaintiff's costs of the hearing before Newman AJ.
3. Order that the plaintiff pay the defendant's costs thrown away by reason of the disruptions of the hearing before me on 10, 12, 13 and 14 February 2003.

Orders