Kabic v Workers Compensation Nominal Insurer (No. 5) - [2018] NSWSC 1070

Supreme Court

New South Wales

Medium Neutral Citation: Kabic v Workers Compensation Nominal Insurer (No. 5) [2018] NSWSC 1070
Hearing dates: 26 February 2018
Decision date: 11 July 2018
Jurisdiction: Common Law
Before: Button J
Decision:
(1) Judgment for the first defendant against the third defendant on the third cross claim filed 25 August 2014 pursuant to s 151Z(1)(d) of the Workers Compensation Act 1987 (NSW) in the amount of $452,395.18.
(2) In relation to the judgment entered in favour of the plaintiff on 16 March 2018 in the sum of $452,395.18 and the judgment entered in favour of the first defendant by Order 1, above, note:
(a) payment of the amount of $452,395.18 is to be made to the first defendant by the third defendant;
(b) payment of the above amount of $452,395.18 to the first defendant satisfies and discharges the plaintiff’s obligation, pursuant to s151Z(1)(b) of the Workers Compensation Act 1987 (NSW), to repay workers compensation payments made to him by the first defendant in the agreed amount of $318,952.71;
(c) payment of the above amount of $452,395.18 to the first defendant, pursuant to s151Z(1)(e1) of the Workers Compensation Act 1987 (NSW), satisfies and discharges the third defendant’s obligation to the plaintiff, pursuant to the judgment entered against it and in favour of the plaintiff on 16 March 2018.
(3) The third defendant must pay the first defendant interest on the judgment sum in order 1 above, in the amount of $117,441.68, pursuant to s 100 of the Civil Procedure Act 2005 (NSW), with such interest accruing at a daily rate of $53.34 and $14.79 respectively, in accordance with the schedule annexed and marked “A”.
(4) The first cross claim filed 25 August 2014 is dismissed.
(5) The second cross claim filed 25 August 2014 is dismissed.
(6) The third cross claim filed 25 August 214 is dismissed, subject to order 1.
(7) The third defendant must pay the first defendant’s costs of these proceedings.
(8) The third defendant must pay the first defendant’s costs of the third cross claim.
(9) No order as to costs as between the first defendant and second defendant on the first cross claim with the intention that each party pay its own costs of the first cross claim.
(10) No order as to costs as between the first defendant and second defendant in respect of the second cross claim with the intention that each party pay its own costs of the second cross claim.
(11) The third defendant must pay the plaintiff’s costs of these proceedings.
(12) The plaintiff must pay the second defendant’s costs of these proceedings.

Catchwords: COSTS – costs following personal injury claim – number of undisputed draft orders – three remaining areas of dispute – whether plaintiff should pay costs of successful second defendant, after representation shared with unsuccessful third defendant – whether unsuccessful third defendant should pay costs of plaintiff – whether plaintiff or unsuccessful third defendant should pay costs of successful first defendant – orders made

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: [2018] NSWSC 1070
Decision Date: 11 July 2018

CaseChat Overview and Summary

The parties involved in this case were Kabic, the plaintiff, and the Workers Compensation Nominal Insurer (No. 5), the defendant. Kabic had brought a personal injury claim against the insurer. The dispute centered on the costs incurred during the litigation. The case was heard in the Supreme Court of New South Wales. The court had to determine several legal issues, including whether Kabic, the plaintiff, should pay the costs of the successful second defendant, given that they shared representation with the unsuccessful third defendant. Another issue was whether the unsuccessful third defendant should pay the costs of the plaintiff. Additionally, the court had to decide whether either Kabic or the unsuccessful third defendant should pay the costs of the successful first defendant.

The court began by examining the number of undisputed draft orders and the three remaining areas of dispute. It considered the relationship between the parties and the nature of the shared representation. The court noted that the second defendant, who was successful, and the third defendant, who was unsuccessful, had shared legal representation with the plaintiff. This shared representation was a key factor in determining the allocation of costs. The court concluded that the plaintiff should bear the costs of the successful second defendant due to the shared representation. It also ruled that the unsuccessful third defendant should pay the costs of the plaintiff. Furthermore, the court determined that neither the plaintiff nor the unsuccessful third defendant should pay the costs of the successful first defendant.

Following its reasoning, the court made several orders. Kabic, the plaintiff, was ordered to pay the costs of the successful second defendant. The unsuccessful third defendant was ordered to pay the costs of the plaintiff. No party was ordered to pay the costs of the successful first defendant. These orders reflected the court's assessment of the legal issues and the shared representation among the parties.

Orders