Nominal Insurer v Hansson
[1989] TASSC 95
•12 May 1989
Serial No. B17/1989
List “B”
COURT: SUPREME COURT OF TASMANIA
CITATION: Nominal Insurer v Hansson [1989] TASSC 95; B17/1989
PARTIES: NOMINAL INSURER
v
HANSSON
FILE NO: 67/1989
DELIVERED ON: 12 May 1989
JUDGMENT OF: Crawford J
Judgment Number: B17/1989
Number of paragraphs: 12
Serial No B17/1989
File No 67/1989
THE NOMINAL INSURER v HANSSON
REASONS FOR JUDGMENT CRAWFORD J
12 May 1989
I have come to the conclusion that the motion for judgment should be dismissed, on the ground that the plaintiff's claim is for a debt only and, accordingly, judgment should be obtained for default of defence pursuant to O30, r2 and not by way of motion for judgment pursuant to O30, r11.
Rule 11 provides that in all other actions than those referred to in the preceding rules of O30, if the defendant makes default in delivering a defence, the plaintiff may set down the action on motion for judgment, and such judgment shall be given as upon the statement of claim the court or a judge shall consider the plaintiff to be entitled. It is therefore necessary to consider what other actions are referred to in the preceding rules.
It is sufficient to look at r2. It provides that if the plaintiff's claim is for a debt or liquidated demand only, and the defendant does not deliver a defence within time, the plaintiff may, at the expiration of such time, enter final judgment for the amount claimed, together with interest at the rate agreed upon, if any, or (if no rate is claimed to have been agreed upon) at the rate of 10% per annum, to and including the date of the judgment, and costs.
The statement of claim alleges that the plaintiff is and was at all material times the person appointed pursuant to the Workers' Compensation Act 1927 to be the nominal insurer for the purposes of the Act. By judgment dated 18 October 1988 in Workers' Compensation proceedings, Robert Charles Gordon became entitled to recover from the defendant $2,828.00 plus costs to be taxed. The action and judgment were brought and obtained in respect of a liability in respect of which the defendant was required to maintain a policy of insurance by s34 of the Act. On 12 December 1988 this court directed, pursuant to s16C(1) of the Act, that the judgment referred to above be entered against the plaintiff in this action, the nominal insurer. On about 12 December 1988 the plaintiff paid to Robert Charles Gordon the sum of $2,828.00 in satisfaction of the judgment sum, and on 22 December 1988 the plaintiff paid to him the agreed sum of $5,500.00 as and for the party and party legal costs payable pursuant to the judgment.
The statement of claim further alleges in par7 that the plaintiff "incurred certain costs of and incidental to the proceedings in which the judgment was obtained". It then states that particulars will be supplied. It appears that they have not been supplied yet.
This action has been brought by the plaintiff against the defendant pursuant to s16E(a) of the Workers' Compensation Act 1927, which is in the following terms:
"16E An amount that is paid by the nominal insurer in satisfaction of a claim made, or judgment obtained, against him pursuant to this Act, together with his costs of and incidental to the claim or the proceedings in which the judgment was obtained, may be recovered by the nominal insurer as a debt due to him by action in a court of competent jurisdiction against–
(a) the employer of the worker by or on behalf of whom, or by or on behalf of whose dependants, the claim was made or the proceedings were instituted, except where the employer has maintained with an approved insurer a policy of insurance or indemnity under section 34; or;
(b) the approved insurer from whom or from which that employer obtained a policy of insurance or indemnity that was in force on the date when the injury by reason of which the claim arose or in respect of which the judgment was obtained was sustained. "
It is to be noted that the amount paid by the nominal insurer in satisfaction of a claim or judgment, together with his costs of and incidental to the claim or the proceedings in which the judgment was obtained, may be recovered by him as a debt due to him against the employer. Accordingly the claim of the plaintiff against the defendant is for a debt, and for nothing else, and in default of defence the plaintiff should have proceeded pursuant to O30, r2, to obtain final judgment for the amount claimed together with the interest referred to in r2. It of course so happens that the plaintiff's claim for his costs of and incidental to the proceedings in which the judgment was obtained, has not been quantified in the statement of claim. It should have been. Because it has not it would appear that the plaintiff's choice is to abandon the claim for those costs and proceed to final judgment for the sum of $8,328.00 plus interest, or alternatively to amend the statement of claim so as to quantify the amount of the claim for such costs, serve the amended statement of claim and thereafter proceed as circumstances dictate.
In Motor Accidents Insurance Board v O'Neill Serial No 30/1981 Neasey J considered the meaning of the term "debt or liquidated demand" and reviewed a number of authorities and the history behind the expression. In that case there was being considered whether the plaintiff was entitled to a final judgment in default of defence, pursuant to O30, r2, in circumstances where the action was brought by the Motor Accidents Insurance Board against the driver of a motor vehicle for amounts paid out by the Board in settlement of a claim for damages by an injured person for personal injuries suffered in an accident. The Board's entitlement to recover from the driver was based on s18(3) of the Motor Accidents (Liabilities & Compensation) Act 1973 which enabled it to recover from the driver in certain circumstances. After setting out those circumstances the subsection simply said that "the Board may recover the amount of those payments from that person". Neasey J held that the Board's claim was not for a debt or liquidated demand. The driver had no means of knowing whether the sum had been properly paid by the Board in discharge of its obligations under the Act in respect of a claim or threatened claim for damages against him, unless and until the Board explained and justified to him the payment of the particular sum or sums, the amount and purpose of which were often within its own decision and discretion. But there is an important difference between s18(3) of the Motor Accidents (Liabilities & Compensation) Act 1973 and s16E of the Workers' Compensation Act 1927. The difference is that whereas s18(3) simply entitles the Board to recover the amount of payments from the other person, s16E entitles the nominal insurer to recover the amount he has paid, together with the costs referred to in the section, "as a debt due to him by action in a court of competent jurisdiction". Section 16E expressly states that the moneys may be recovered as a debt.
In Motor Accidents Insurance Board v O'Neill (supra) Neasey J at p13 drew attention to the difference between s18(3) of the Motor Accidents (Liabilities & Compensation) Act 1973 and s65F(1) of the Traffic Act 1925 which applied before the 1973 Act was passed. Section 65F(1) was in terms very similar to s16E of the Workers' Compensation Act 1927. It provided as follows:
"65(1) Any amount paid by the nominal defendant in satisfaction of a claim made, or judgment obtained, against him pursuant to this part, together with his costs of and incidental to the claim or the proceedings in which the judgment was obtained, may be recovered by the nominal defendant as a debt due to the nominal defendant by action in a court of competent jurisdiction against –
(a) the person who, at the time of the accident out of which the claim arose or in respect of which the judgment was obtained, was the owner of the motor vehicle concerned; or
(b) the owner and driver jointly, or either of them severally, where, at that time, any other person was driving the motor vehicle."
Neasey J at p14 of his judgment said:
"The difference between the two provisions speaks for itself, and indicates that where the legislature desires to make the amount recoverable as a debt or liquidated demand it makes a special provision to that end."
Because s16E states that the moneys claimed by the plaintiff are recoverable as a debt, I hold that the claim of the plaintiff in this action is for a debt. The plaintiff should seek judgment pursuant to O30, r2, if he wishes to proceed. In default of a defence r11 does not apply in this case.
The motion will be dismissed.
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