Grills v Leighton Contractors Pty Limited (No 2)

[2015] NSWCA 348

Court of Appeal

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:

Grills v Leighton Contractors Pty Limited (No 2) [2015] NSWCA 348

Hearing dates:

On the papers

Decision date:

13 November 2015

Before:

Beazley P;
Gleeson JA

Decision:

(1)   Set aside order 2 made by the Court of Appeal on 27 March 2015 and in lieu thereof, make the following orders:

 

2A.   Set aside orders 1, 2 and 3 made by the trial judge on 23 April 2014 and in lieu thereof substitute the following orders, with effect from 23 April 2014:

 

(a)   Verdict and judgment for the appellant against Leighton Contractors Pty Limited for $1,475,805;
(b)   Verdict and judgment for the appellant against the State for $1,225,647;
(c)   Leighton Contractors Pty Limited and the State will in respect of the judgment amounts specified in (a) and (b) discharge the judgments against them by making payments in the following amounts, less any deductions which are required by law and less any payments already made:

 

(i)   Leighton Contractors Pty Ltd: $826,212;
(ii)   The State: $649,593.

 

2B.   Order that Leighton and the State pay interest only on those portions of the judgment sums particularised in order 2A(c) above.

 

(2)   Set aside order 3 of the Court of Appeal on 27 March 2015 and in lieu thereof, make the following order:

 

3.   Leighton Contractors Pty Limited to pay 11.75 per cent of the appellant’s costs of the appeal, and the parties otherwise to bear their own costs of the appeal.

 

(3)   The appellant to pay Leighton Contractors Pty Limited’s costs of the appellant’s notice of motion, and the appellant and the State to bear his and its own costs of that notice of motion.

 (4)   No order as to costs of the State’s notice of motion, with the intent that each party pay his and its own costs.

Catchwords:

PROCEDURE – civil – application to amend orders – slip rule – UCPR, r 36.17 – exercise of discretion – role of delay

 

APPEALS – date from which appellate judgment has effect

 

INTEREST – post-judgment interest – date from which interest runs – Civil Procedure Act 2005 (NSW), s 101

 

INTEREST – post-judgment interest – whether parties liable for interest on total amount of liability or alternatively on lesser sum calculated having regard to apportionment between tortfeasors

COSTS – costs in workplace injury proceedings – Workplace Injury Management and Workers Compensation Act 1998 (NSW), s 346

Legislation Cited:

Uniform Civil Procedure Rules 2005 (NSW)

Cases Cited:

Erect Safe Scaffolding (Australia) Pty Ltd v Sutton (No 2) [2008] NSWCA 289
Najdovski v Crnojlovic (No 2) [2008] NSWCA 281
Newmont Yandal Operations Pty Limited v The J Aron Corporation and the Goldman Sachs Group [2007] NSWCA 195; 70 NSWLR 411
Nichol v Allyacht Spars Pty Ltd [1988] HCA 48; 165 CLR 306
Smith v Sydney West Area Health Service (No 2) [2009] NSWCA 62
Sneddon v The Speaker of the Legislative Assembly [2011] NSWSC 842
Storey & Keers Pty Ltd v Johnstone (1987) 9 NSWLR 446
Wardle v Agricultural & Rural Financers Pty Ltd (No 3) [2013] NSWCA 207; 303 ALR 298

Category:

Consequential orders (other than Costs)

Parties:

Adam Lee Grills (Appellant)
Leighton Contractors Pty Limited (First Respondent)
State of New South Wales (Second Respondent)

Representation:

Counsel:
B J Gross QC; K Earl (Appellant)
M Windsor SC; K Young (First Respondent)
G Parker SC (Second Respondent)

Solicitors:
Baker & Edmunds Solicitors (Appellant)
Thompson Cooper Lawyers (First Respondent)
Turks Legal (Second Respondent)

File Number(s):

CA 2014/127274

 Decision under appeal 

Court or tribunal:

Supreme Court

Jurisdiction:

Common Law

Citation:

Grills v Leighton Contractors Limited (No 2) [2013] NSWSC 1951; Grills v Leighton Contractors Limited Pty Ltd (No 3) [2014] NSWSC 349

Date of Decision:

23 April 2014

Before:

Schmidt J

File Number(s):

SC 2008/317603

HEADNOTE

[This headnote is not to be read as part of the judgment]

The principal judgment in this matter was given by the Court of Appeal in Grills v Leighton Contractors Pty Limited [2015] NSWCA 72. The appellant was, relevantly, successful in setting aside a finding of contributory negligence as against him, with the effect that judgment sums which had been awarded in his favour in the court below required adjustment. By notices of motion filed some months after the Court gave judgment, the appellant and the State of New South Wales (the State) applied for a number of variations to the orders made.

The appellant, in relation to his notice of motion, contended:

(1)   That the Court, by its judgment of 27 March 2015, failed to set aside orders (1) and (2) made by the trial judge or to make new orders for the appropriate judgment sums; and

(2)   That he was entitled to an order for interest, as from the date of the judgment below, on the total amount of damages to which he was entitled from each of the Leighton Contractors Pty Limited (Leighton) and the State, rather than on the amounts apportioned between them.

The State, in relation to its notice of motion, contended:

(1)   That the order of the Court by which it was made liable for a portion of the appellant’s costs of the appeal should be set aside as being wrong in law, having regard to the Workplace Injury Management and Workers Compensation Act 1998 (NSW), s 346.

Held by the Court:

In relation to the appellant’s notice of motion:

(i) The Court’s omission to make the orders required to give effect to its judgment was a clerical mistake requiring correction, and the Court’s power to make such correction pursuant to UCPR, r 36.17 was enlivened. [11]

(ii)   Although there is no settled convention as to the date on which an appellate judgment takes effect, there are significant practical advantages to it doing so from the date of the first instance judgment. As the parties appeared to accept, the appellant should have interest from that date. [13], [21]-[23]

Erect Safe Scaffolding (Australia) Pty Ltd v Sutton (No 2) [2008] NSWCA 289; Nichol v Allyacht Spars Pty Ltd [1988] HCA 48; 165 CLR 306; Najdovski v Crnojlovic (No 2) [2008] NSWCA 281

(iii)   The State’s liability to pay interest (as opposed to the amount of interest payable and whether any amount remained due) was unaffected by the fact that it may have overpaid the appellant. [30]-[31]

(iv)   It was not appropriate that Leighton be embroiled in a dispute between the appellant and the State, or that as a result of that dispute it be required to pay interest on a greater sum that that which it was obliged to pay the appellant. In those circumstances, an order should be made pursuant to the Civil Procedure Act 2005 (NSW), s 101 that interest be calculated only on the portions of the judgment sum by which it was ordered that each of Leighton and the State could discharge their liability to the appellant. [32]

In relation to the State’s notice of motion:

(i)   The Workplace Injury Management and Workers Compensation Act 1998 (NSW), s 346 applies such that the Court was in error in ordering that the State pay a portion of the appellant’s costs of the appeal. [46]

(ii)   The Court did not intend that Leighton be liable for all of the appellant’s costs of the appeal for which costs orders were made. The appellant must therefore bear that portion of his costs for which the State was erroneously made liable. [50]

(iii) It is appropriate, notwithstanding the State’s delay in making an application to the Court, that the Court exercise its discretion to vary its orders pursuant to UCPR, r 36.17, in the circumstance that had the matter been brought to the Court’s attention at an earlier time, it would have made the correction at once; that the State’s liability to pay costs was not a matter of discretion; and that no prejudice to any of the parties was established. [48]-[51].

Storey & Keers Pty Ltd v Johnstone (1987) 9 NSWLR 446; Newmont Yandal Operations Pty Limited v The J Aron Corporation and the Goldman Sachs Group [2007] NSWCA 195; 70 NSWLR 411; Wardle v Agricultural & Rural Financers Pty Ltd (No 3) [2013] NSWCA 207; 303 ALR 298

Judgment

1. THE COURT: This Court gave judgment in this matter on 27 March 2015: Grills v Leighton Contractors Pty Limited [2015] NSWCA 72. The appellant was successful in setting aside a finding of contributory negligence against him in relation to an accident that occurred when the motorcycle he was riding in the course of his employment as a police officer collided with a boom gate. He also appealed, unsuccessfully, against a finding of liability as against the State of New South Wales (the State). The State and Leighton Contractors Pty Limited (Leighton), the controller of the motorway on which the accident occurred, each cross-appealed against findings of liability as against them, the apportionment of liability as between them, and her Honour’s assessment of contributory negligence, each seeking an increase in the trial judge’s determination of contributory negligence for which the appellant was liable. The cross-appeals were dismissed.

2. By notices of motion filed 29 July 2015 and 5 August 2015 respectively, the appellant and the State sought variations of the orders made in the principal judgment. The parties consented to the notices of motion being dealt with on the papers. One of the judges who sat on the primary matter, Barrett JA, having since retired, the parties also consented to the notices being dealt with by the remaining two members of the bench in accordance with the Supreme Court Act 1970 (NSW), s 45AA(1).

3. In order to explain what is sought in the two notices of motion, it is necessary to set out the orders made in this matter at trial and on appeal. On 23 April 2014, the trial judge made orders, including the following:

“(1)   Verdict and Judgment for the [appellant] against [Leighton] for $1,254,433.

(2)   Verdict and Judgment for the [appellant] against [the State] for $1,041,799.

(3)   [Leighton] and [the State] will discharge the [appellant’s] judgments against them by payments in the following amounts, less any deductions which are required by law:

(a)   [Leighton] $702,280

(b)   [The State] $552,153

(4)   [Leighton] to pay [the appellant’s] costs.

(5)   As between [the appellant] and [the State], each party to pay his and its own costs.

…”

4. The sums specified in order 3 were calculated having regard to the total amounts for which the State and Leighton was liable, the apportionment of damages as between them and the fact that payments to the appellant by either Leighton or the State would operate as a pro tanto discharge of the obligations of the other.

5. This Court, on 27 March 2015, made the following orders:

“(1)   Appeal allowed in part.

(2)   Set aside order 3 made by the trial judge on 23 April 2014.

(3)   The respondents to pay to the appellant 25 per cent of his costs of the appeal, such costs to be borne by the respondents in the proportions of their respective liability to the appellant.

(4)   Leighton Contractors Pty Limited to pay the appellant’s costs as cross-respondent to the first cross-appeal.

(5)   There be no order as to costs as between the State and the appellant in respect of the State’s cross-appeal.

(6)   Leighton Contractors Pty Limited as first cross-appellant to bear its own costs of the first cross-appeal as against the State as a cross-respondent to the first cross-appeal.

(7)   The State as second cross-appellant to bear its own costs of the second cross-appeal as against Leighton Contractors Pty Limited as a cross-respondent to the second cross-appeal.”

6. It will be immediately apparent from the above that in setting aside order 3, it was also necessary for the Court to set aside orders 1 and 2 and to substitute for orders 1, 2 and 3 the appropriate money judgment in favour of the appellant against the respondents. The Court omitted to do so.

7. Orders of the Court may be set aside or varied pursuant to the Uniform Civil Procedure Rules 2005 (NSW) (UCPR), rr 36.15-36.18. Rules 36.15 and 36.17 are relevant in the present case. Those rules provide:

“36.15   General power to set aside judgment or order

(1)   A judgment or order of the court in any proceedings may, on sufficient cause being shown, be set aside by order of the court if the judgment was given or entered, or the order was made, irregularly, illegally or against good faith.

(2)   A judgment or order of the court in any proceedings may be set aside by order of the court if the parties to the proceedings consent.

36.17   Correction of judgment or order (‘slip rule’)

If there is a clerical mistake, or an error arising from an accidental slip or omission, in a judgment or order, or in a certificate, the court, on the application of any party or of its own motion, may, at any time, correct the mistake or error.”

The appellant’s notice of motion

8. The appellant’s notice of motion of 29 July 2015 sought the following orders:

“(1)   Judgment/Orders of the Court of Appeal dated 27 March to be set aside, and the following Judgment/Orders be substituted:

(2)   Appeal allowed in part.

(3)   Set aside orders 1, 2 and 3 made by the trial judge on 23 April 2014 and in lieu thereof the following orders are substituted, with effect from 23 April 2014:

a.   Verdict and judgment for the appellant against Leighton Contractors for $1,475,805

b.   Verdict and judgment for the appellant against the State of NSW for $1,225,647

c.   Leighton Contractors and the State of NSW will discharge the appellant’s judgments against them by payments in the following amounts, less any deductions which are required by law and less any payments already made:

i.   Leighton Contractors Pty Ltd: $826,212;

ii.   The State of NSW: $649,593.

(4)   The respondents to pay to the appellant 25 per cent of his costs of the appeal, such costs to be borne by the respondents in the proportions of their respective liability to the appellant.

(5)   Leighton Contractors Pty Limited to pay the appellant’s costs as cross-respondent to the first cross-appeal.

(6)   There be no order as to costs as between the State and the appellant in respect of the State’s cross-appeal.

(7)   Leighton Contractors Pty Limited as first cross-appellant to bear its own costs of the first cross-appeal as against the State as a cross-respondent to the first cross-appeal.

(8)   The State as second cross-appellant to bear its own costs of the second cross-appeal as against Leighton Contractors Pty Limited as a cross-respondent to the second cross-appeal.

(9)   Second respondent to pay the Appellant’s costs of this Notice of Motion.”

9. By submissions filed 1 October 2015, the appellant submitted that he had formulated proposed orders 3 and 9 erroneously in his notice of motion. He sought that those orders instead be made in the following form (bolded phrases are those that differ from the orders sought in the notice of motion):

“(3)   Set aside orders 1, 2 and 3 made by the trial judge on 23 April 2014 and in lieu thereof the following orders are substituted, with effect from 23 April 2014:

a.   Verdict and judgment for the appellant against Leighton Contractors for $1,475,805

b.   Verdict and judgment for the appellant against the State of NSW for $1,225,647

c.   Leighton Contractors and the State of NSW will in respect of the judgment amounts in (a) and (b) make payments in the following amounts, less any deductions which are required by law and less any payments already made:

i.   Leighton Contractors Pty Ltd: $826,212;

ii.   The State of NSW: $649,593.

and in addition, Leighton Contractors and the State will pay interest on the respective amounts of the judgments against them pursuant to s 101 of the Civil Procedure Act from 23 April 2014 at the rate of 8.5% per annum, with the respondents to have credit for amounts already paid.

(9)   Respondents to pay the appellant’s costs of this Notice of Motion.”

10. In his submissions of 1 October, the appellant also sought that the order relating to his costs of the appeal be varied. That submission was made in support of the State’s notice of motion and will be dealt with below.

11. There is no dispute that, in order to give effect to the judgment of this Court, orders 1 and 2 made by the trial judge need to be set aside. This Court’s initial failure to do so was a clerical error such as to enliven the power to set aside orders pursuant to UCPR, r 36.17. There is also no dispute, as we understand it, in relation to the calculation of the specific sums referred to in the appellant’s proposed order 3. Orders as proposed by the appellant in his original notice of motion should therefore be made.

12. Leaving aside the amendment to the costs order made in the proposed amended notice of motion, the appellant also sought an order for interest in the terms proposed. The parties engaged in considerable correspondence and filed written submissions as to the appropriate outcome in respect of interest. In essence, the appellant submitted that he was entitled to interest on the sums of $1,475,805 from Leighton and $1,225,625 from the State, being the total amount of damages that he is entitled to receive from each, subject to any amounts paid by either discharging, to the extent of the payment, the liability of the other. He also sought that the interest was to be calculated from the date of the trial judge’s orders.

13. The respondents do not contest the appellant’s entitlement to interest, nor as we understand it, the date from which interest should be calculated. Rather, their respective contentions are, in the case of Leighton, that it has paid the damages for which it is liable including interest and in the case of the State, that it has paid directly or indirectly, more than the sum it is liable to pay.

14. Notwithstanding these areas of consensus, the parties have been unable to agree on the interest, if any, to which the appellant is or remains entitled. They filed written submissions, parts of which were misconceived. That circumstance has substantially inhibited the resolution of the dispute.

15. The entitlement of a party to post-judgment interest is contained in the Civil Procedure Act 2005 (NSW), s 101 which provides, relevantly:

“101   Interest after judgment

(1)   Unless the court orders otherwise, interest is payable on so much of the amount of a judgment (exclusive of any order for costs) as is from time to time unpaid.

(2)   Interest under subsection (1) is to be calculated, at the prescribed rate or at such other rate as the court may order, as from:

(a)   the date on which the judgment takes effect, or

(b)   such later date as the court may order.

…”

16. Section 3 defines “judgment” as including “any order for the payment of money, including any order for the payment of costs”.

17. The entitlement to post-judgment interest under s 101 is not discretionary. Rather, the section, by its terms, provides that interest is payable on so much of the judgment sum as is from time to time unpaid. No order of the court is required. If a party wishes to contest the entitlement to interest, or there are reasons why the Court considers that the entitlement to interest for which the section provides is not appropriate, there is a discretion in the Court to make a different order. In that case, the terms of any such different order need to be stated by the Court.

18. The section also provides for the date from which interest is calculated, namely, the date on which judgment takes effect: subs 2(a), or such later date as the court determines: subs 2(b).

19. UCPR, r 36.4(1) provides that a judgment or order takes effect, relevantly, as at the date on which it is given or made. UCPR, r 36.4(3) provides that the court may order that a judgment or order is to take effect as of a date earlier or later than the date fixed by subr (1).

20. The position in respect of a first instance judgment is that post-judgment interest would almost invariably be calculated from the date that judgment is given, although there may be instances where the court makes an order under UCPR, r 36.4(3). Should that occur, interest will be payable from the date on which the judgment is ordered to take effect, unless the court, in the exercise of the discretion conferred by the opening words of s 101, makes some other order.

16. In the case where there is an appeal from a judgment involving a money sum on which interest is payable pursuant to s 101, there is no fixed convention or practice as to the date from which the orders of the appellate court take effect: see the discussion in Erect Safe Scaffolding (Australia) Pty Ltd v Sutton (No 2) [2008] NSWCA 289; see also Nichol v Allyacht Spars Pty Ltd [1988] HCA 48; 165 CLR 306; Najdovski v Crnojlovic (No 2) [2008] NSWCA 281. As the High Court pointed out in Nichol v Allyacht Spars, if the date the appellate judgment takes effect is the date of delivery, then the plaintiff’s position is protected by the availability of an award of pre-judgment interest up to the date of the appellate judgment.

17. Although there is no convention or settled practice, it can be said that it is not unusual for the appellate court to order that the judgment is to take effect from the date of the first instance judgment. There are significant practical advantages in doing so, not the least of which is in respect of the calculation of the post-judgment interest payable.

18. In the present case, the appellant seeks and as we understand it, it is not contested by Leighton or the State, that interest should be calculated from the date of the first instance judgment, being 23 April 2104. We consider that is the appropriate date from which the Court’s principal judgment should take effect and that will be stated within the body of the amended orders we propose to make.

19. The contest between the parties, as indicated above, appears to be twofold:

First, whether interest should be calculated on the sum of $1,475,805 or on the respective sums that Leighton and the State have been found liable to pay; and

Secondly, whether the State ought to be liable to pay any interest.

25. Leighton also submitted that as it has in any event paid interest, no order for interest ought to be made.

26. It is apparent from the terms of the orders that the appellant seeks that it accepts that the respondents are to have credit for interest already paid. The disagreement between the appellant and Leighton essentially arises because of the stance taken by the State, that it ought not to be subject to any obligation to pay interest because it has paid, directly or indirectly, more than the amount of damages apportioned to it. We return to the State’s position below.

27. The first observation to make is that the effect of the Court’s judgment was to find that Leighton and the State were jointly and severally liable. Had it been otherwise, it would not have been necessary to engage in the task of apportioning liability. It follows that, in the ordinary course, interest would be calculated on the judgment sum of $1,475,805.

28. Leighton has satisfied its portion of the judgment and has paid interest on that sum. It contends that it ought not to be further liable. The State contends it ought to pay no interest. Although none of the parties, in terms, sought that the Court exercise its discretion to “order otherwise” pursuant to s 101 and certainly none filed a notice of motion to that effect, the position taken by Leighton and the State, if accepted, would require this Court to do so. The question is whether that course is appropriate.

29. It is convenient to consider first the position taken by the State. It contends it should pay no interest, having made the following payments directly or indirectly to the appellant to satisfy its apportioned amount of the judgment sum:

(a)   Past weekly compensation         $216,638.20

(b)   Medicare advance payment      $033,551.48

(c)   Past medical and other expenses paid   $131,024.75

(d)   Net damages paid at first instance   $301,963.32

Subtotal                  $683,177.75

30. The amounts paid particularised in (a), (b) and (c), of their nature, would have been paid prior to judgment. No interest would thereby be payable on those amounts. That left an amount of $268,378.57 payable by way of damages. Whilst the State overpaid the appellant by an amount of $33,584.75 (a matter which has been settled with the appellant), it was nonetheless liable under s 101 to pay interest on the amount of $268,378.57, or so much of that sum as was outstanding from time to time, until it was paid.

31. Save for having paid the sums specified and having made an overpayment, the State advanced no argument as to why it should not be liable for interest on the sum of $268,378.57. Nor was the Court advised when the sum specified in (d) above was paid. However, we can see no reason why the State ought not to pay interest. If it turns out that the overpayment was greater than the interest payable, no interest would remain owing, subject to the manner in which the question of over payment was settled between the parties. That is different from saying there was no liability for interest. It is not for the Court, however, to do the necessary calculation. If there is an amount owing, the parties should be able to calculate it.

32. We have come to the conclusion that Leighton ought not be embroiled in the dispute between the appellant and the State. Leaving aside its obligations as a joint and several tortfeasor, it has paid the apportioned judgment amount for which it was liable and the interest payable on that. For the reasons we have given, the Court does not know whether the State presently owes any sum by way of interest. To require Leighton to pay interest on the sum of $1,475,805 would involve it in a seemingly petty dispute over which it has no control. For that reason, the Court proposes to “order otherwise” pursuant to s 101 so that liability to pay interest will only attach to the apportioned sums for which Leighton and the State were found to be respectively liable.

The State’s notice of motion

33. The State’s notice of motion filed 5 August 2015 sought the following orders:

(1)   That order 3 of the Court of Appeal dated 27 March 2015 be set aside and in its place the following orders be made:

(a)   [Leighton] to pay to the appellant 25% of his costs of the appeal.

(b) That the appellant pay to [the State] $35,585.75 being a refund of compensation payments pursuant to Section 151A of the Workers Compensation Act 1987, plus interest from the date of judgment calculated at 8.5% per annum.

(2)   That the appellant pay the costs of this motion.”

34. By its submissions filed 17 September 2015, the State informed the Court that its proposed order (1)(b) was not pressed, the parties having resolved the underlying dispute, a matter to which we have referred above. The State also submitted that, instead of an order in the form of proposed order (1)(a), an order in the following form should be made:

“As between [the appellant] and the State each party to pay his or its own costs of the appeal. As between [the appellant] and [Leighton], [Leighton] to pay 25% of [the appellant’s] costs of the appeal against [Leighton].”

35. The appellant supported the making of an order in the terms proposed by the State. Leighton opposed an order in either of the forms proposed.

36. As the Court understands it, the position of the parties is as follows:

1. The State and the appellant submit that the Court erred in making a costs order against the State: see Workplace Injury Management and Workers Compensation Act 1998 (NSW) (the Act), s 346 and the Workers Compensation Regulation (2010) (the Regulation), reg 106. Pursuant to that regulation, the State and the appellant are to bear their own costs of the proceedings. Leighton is equivocal as to whether reg 106 applies.

2. The State submits that Leighton alone should bear the burden of the costs ordered in order 3 made by the Court of Appeal, that is, Leighton should pay 25 per cent of the appellant’s costs of the appeal. The appellant supports that submission. Leighton submits that it ought to be liable for no more than was envisaged by the terms of order 3, that is, for 47 per cent of 25 per cent of the appellant’s costs of the appeal.

3. The State contends that order 3 should be amended pursuant to the slip rule in UCPR, r 36.17. The appellant contends that the Court has power to amend order 3 pursuant to UCPR, r 36.15, in that the costs order was made irregularly. Leighton contends that the slip rule does not apply, as there was no clerical mistake or error arising from an accidental slip or admission. It further contends that there is no evidence that the costs order was made irregularly or against good faith as was required to be established if UCPR, r 36.15 was to apply.

4. Leighton further submits that the Court should not entertain the State’s notice of motion because of the delay in bringing the matter back to the Court, some six months after the principal decision was delivered.

37. It is not in dispute that the appellant suffered an injury caused by the negligence of his employer, the State, and thus suffered work injury damages within the meaning of s 250 of the Act. Costs in relation to a claim for work injury damages are governed by s 346. That section provides that a party is not entitled to costs and a court may not order costs except as prescribed by the regulations made under the Act or by the rules of court.

38. It was also not in dispute that the Act and the Regulation apply to orders made by the Court of Appeal in determining an appeal from a determination by a first instance court of a claim for work injury damages: see Smith v Sydney West Area Health Service (No 2) [2009] NSWCA 62 at [16]. The parties accepted, as we understand their respective positions, that the costs scheme for which the Act provides does not alter the position in respect of costs as against Leighton: see Sneddon v The Speaker of the Legislative Assembly [2011] NSWSC 842 at [15].

39. The State and the appellant submit that the costs in this case fell to be governed by reg 106, which provides:

“106   Costs in other cases

Except as provided by this Subdivision, the parties to court proceedings for work injury damages are to bear their own costs.”

40. Leighton did not argue definitively that reg 106 did not apply. Rather, in support of its submission that the State’s application to amend order 3 did not fall within the ambit of UCPR, r 36.17, it suggested that regs 104 or 107 might apply such that the Court would be required to exercise a discretion as to which regulation applied. Regulation 104 applies where a party is no less successful than a claimant’s final offer made in mediation under the Act. In that case, the court is to order the insurer to pay the claimant’s costs.

41. Regulation 107 applies in circumstances where the insurer denies liability and there is no mediation. If, within a month of the issuance of a certificate to that effect, the claimant makes an offer of settlement, an offer of that amount is deemed to have been made in mediation under the Act. In any other case, an offer is deemed to have been made by the claimant for the amount of damages specified in the pre-filing statement served under s 315 of the Act. In both cases, the insurer is deemed to have made an offer of settlement in mediation of $0.

42. It was common ground amongst the parties, as we understand it, that reg 109, relating to offers made in cases where there are multiple parties, did not apply.

43. In support of its argument that the relief claimed by the State in its notice of motion did not come within UCPR, r 36.17, Leighton advanced three possible scenarios. One scenario was consistent with reg 106 applying. Another scenario was based on the possibility that an offer of settlement had been made within a month of the issue of a certificate referred to in reg 107, so that that regulation arguably applied. The appellant denied that any such offer had been made and submitted that to the extent that there had been some confusion about the making of an offer, it had been clarified at the time the costs were argued before the trial judge, as Leighton well knew.

44. Another scenario involved the possibility that the amount of damages awarded by the trial judge was greater than the amount claimed. A basis of that assertion seemed to be that the amount ordered exceeded the jurisdictional limit of the District Court and that this was a case where a filing statement had been provided under s 315. The difficulty with this suggested scenario was that the proceedings had been transferred to the Supreme Court, where there is no jurisdictional limit.

45. It is appropriate that the Court records at this point that submissions which are known to the parties to have no basis in fact are of no assistance to the Court.

46. The Court is satisfied not only that it erred in making an order for costs against the State, but that the matter is governed by reg 106. Regulation 104 has no application as, on the material before the Court, no offer of settlement was made. Regulation 107 does not apply, as no offer of settlement was made within the terms of that section and there was no material before the Court to suggest that the amount claimed in the s 315 filing statement was less than the damages awarded.

47. That raises the question whether the Court should accede to the order sought by the State, either as a matter of power or discretion.

48. In order for the slip rule to apply, the Court must be satisfied that had the matter been drawn to its attention it would have made the correction at once: Storey & Keers Pty Ltd v Johnstone (1987) 9 NSWLR 446 at 453; Newmont Yandal Operations Pty Limited v The J Aron Corporation and the Goldman Sachs Group [2007] NSWCA 195; 70 NSWLR 411 at [137]; Wardle v Agricultural & Rural Financers Pty Ltd (No 3) [2013] NSWCA 207; 303 ALR 298 at [61].

49. The Court accepts that it made a mistake in ordering the State to pay in accordance with order 3. Had the matter been brought to its attention at an earlier point of time, the Court would have accepted that it had no power to make order 3 insofar as it applied to the State. We consider that in that circumstance, UCPR, r 36.17 applies, notwithstanding that it may have been necessary for the parties to explain to the Court as to why reg 106 applied.

50. The Court does not accept that it either made a mistake or otherwise intended that Leighton should bear the entirety of the costs burden for which order 3 provides. Subject only to making the appropriate amendment so that no order is made against the State, the order as against Leighton will be amended only so far as is necessary to reflect the Court’s intention that it bear the same apportionment of the costs orders as it bore liability on the claim. That would amount to a payment of 47 per cent of 25 per cent of the appellant’s costs of the appeal, being 11.75 per cent. The appellant must otherwise bear his own costs of the appeal.

51. That leaves, however, the question whether the Court should refuse the application because of the State’s delay in bringing the matter to its attention. Had the State’s liability as to costs been a matter of the Court’s discretion, the question of delay would most likely have been of significance. However, in circumstances where a costs order was precluded by statute, we have come to the conclusion that the delay was not such as to cause the Court to refuse the relief claimed. The matter may have been different had some prejudice to any of the parties been established. However, none was asserted, save for the appellant’s concern with being deprived of portion of the costs originally ordered in its favour. In circumstances where he had no entitlement to those costs, the Court does not consider that to be a relevant prejudice.

Costs of the notices of motion

52. The appellant has been partially successful on his notice of motion in that it is necessary for the Court to make orders in respect of the judgment sums to which he is entitled. That aspect of the notice of motion was not in dispute. However, the appellant has been largely unsuccessful in the contentious aspect of his notice of motion, being the determination of the sums on which interest is to be paid.

53. The appellant’s submissions filed in support of his notice of motion recorded in part matters of historical disputation between the parties as to the orders that were necessary for the proper disposition of the matter, much of which had been resolved and to that extent was irrelevant. Further, in raising the question of interest only in his additional submissions of 1 October 2015, Leighton, which had already filed submissions, was required to file additional submissions in response. The State at that time had not filed submissions in response to the appellant’s notice of motion but subsequently did so.

54. The appellant sought an order that the respondents pay his costs of the notice of motion. Neither the appellant nor the State advanced any submission as to whether an order for costs was precluded by s 346 and the Regulations discussed above. The Court was minded in any event to order that the appellant bear a substantial portion of the costs of his submissions, given their irrelevance. In those circumstances, and as the appellant was unsuccessful in having the Court make the order sought as to interest, we consider that he should bear his own costs of the motion. It is not necessary, therefore, for the Court to resolve the costs question raised at the commencement of this paragraph.

55. The State, for its part, failed to persuade the Court that it should not be liable to pay interest. We have determined as a matter of principle that it is so liable. Accordingly, it has not been successful resisting the appellant’s claim for interest. For that reason, leaving aside the question as to whether a costs order is precluded by the statue, we would not order costs in its favour.

56. Leighton did not resist its liability for interest but contended that it should be liable only on the sum of its apportioned liability and that it had paid interest on that sum. As it was successful in that contention, we consider that the appellant should pay Leighton’s costs of the notice of motion.

57. The State has also been partially successful on its notice of motion. However, the State and the appellant failed in what appeared to be their joint purpose, which was to make Leighton liable for that portion of the appellant’s costs of the appeal which was to be paid by the State. The appellant and the State should bear his and its own costs.

58. That leaves the question of Leighton’s costs of the State’s notice of motion. In circumstances where the substantial portion of costs would have been in the preparation of the written submissions, which, as we have indicated were not of assistance to the Court, we have determined that Leighton should not have its costs of the State’s notice of motion.

Orders

59. The Court makes the following orders:

1. Set aside order 2 made by the Court of Appeal on 27 March 2015 and in lieu thereof, make the following orders:

2A.   Set aside orders 1, 2 and 3 made by the trial judge on 23 April 2014 and in lieu thereof substitute the following orders, with effect from 23 April 2014:

(a)   Verdict and judgment for the appellant against Leighton Contractors Pty Limited for $1,475,805;

(b)   Verdict and judgment for the appellant against the State for $1,225,647;

(c)   Leighton Contractors Pty Limited and the State will in respect of the judgment amounts specified in (a) and (b) discharge the judgments against them by making payments in the following amounts, less any deductions which are required by law and less any payments already made:

(i)   Leighton Contractors Pty Ltd: $826,212;

(ii)   The State: $649,593.

2B.   Order that Leighton and the State pay interest only on those portions of the judgment sums particularised in order 2A(c) above.

2. Set aside order 3 of the Court of Appeal on 27 March 2015 and in lieu thereof, make the following order:

3.   Leighton Contractors Pty Limited to pay 11.75 per cent of the appellant’s costs of the appeal, and the parties otherwise to bear their own costs of the appeal.

3. The appellant to pay Leighton Contractors Pty Limited’s costs of the appellant’s notice of motion, and the appellant and the State to bear his and its own costs of that notice of motion.

3. No order as to costs of the State’s notice of motion, with the intent that each party pay his and its own costs.

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Amendments

13 November 2015 - Typographical corrections at [41], [45] and [50]

Decision last updated: 13 November 2015