Optus Administration Pty Limited v Glenn Wright by his tutor James Stuart Wright (No 2) - [2017] NSWCA 154

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Optus Administration Pty Limited v Glenn Wright by his tutor James Stuart Wright (No 2) [2017] NSWCA 154
Hearing dates: On the papers
Decision date: 23 June 2017
Before: Basten JA at [1];
Hoeben JA at [2];
Gleeson JA at [3]
Decision:
(1) Judgment for the appellant against the second respondent for $94,431.03 with effect from 24 May 2017.
(2) Each party to pay its costs of the motion of 9 March 2017.
Catchwords:
RESTITUTION – other matters – recovery of money paid under judgment or order – where money paid by appellant pursuant to declaration by primary judge that appellant must indemnify second respondent under Workers Compensation Act 1987 (NSW), s 151Z(1)(d) – where declaration is set aside on appeal – where restitution not sought in notice of appeal or at the hearing – whether appropriate to deny interest in the present case.

PROCEDURE – where appellant seeks a further order for restitution of moneys paid under a declaration which is set aside on appeal – where appellant failed to claim restitution in the notice of appeal or at the hearing of the appeal – where omission to claim restitution was an oversight by the appellant’s lawyers – Uniform Civil Procedure Rules 2005 (NSW), r 51.19.
COSTS – restitution and interest on moneys paid under a judgment later set aside – where relief not sought in notice of appeal or at the hearing – appropriate order for costs of later application for restitution – where appellant seeks an indulgence and respondent to motion had no basis to oppose the making of an order for restitution.
Legislation Cited: Civil Procedure Act 2005 (NSW), s 56
Supreme Court Act 1970 (NSW), s 75A(10)
Uniform Civil Procedure Rules 2005 (NSW), rr 36.7(1), 42.1, 51.19, 51.54
Workers Compensation Act 1987 (NSW), s 151Z(1)(d)
Cases Cited: Barrak Corporation Pty Ltd v Jaswil Properties Pty Ltd (No 2) [2016] NSWCA 149
Boral Limited v Foley & Bear Pty Ltd t/as J&R Industries (No 2) [2017] NSWCA 108
Cai v Zheng (No 2) [2009] NSWCA 317
Heydon v NRMA Ltd (No 2) (2001) 53 NSWLR 600; [2001] NSWCA 445
Optus Administration Pty Limited v Glenn Wright by his tutor James Stuart Wright [2017] NSWCA 21
Perisher Blue Pty Ltd v Vidakovic (No 2) [2006] NSWCA 326
Production Spray Painting & Panel Beating Pty Ltd v Newnham (No 2) (1992) 27 NSWLR 659
TCN Channel 9 Pty Ltd v Antoniadis (No 2) (1999) 48 NSWLR 381; [1999] NSWCA 104
Woolworths Limited v Strong (No 2) (2011) 80 NSWLR 445; [2011] NSWCA 72
Category: Procedural and other rulings
Parties: Optus Administration Pty Limited (Appellant)
Glenn Wright by his tutor James Stuart Wright (First Respondent)
IPA Personnel Pty Limited (Second Respondent)
Representation:
Counsel:
GM Watson SC / DF Villa (Appellant)
L Morgan (Second Respondent)
Solicitors:
Hunt and Hunt Lawyers (Appellant)
Sparke Helmore (Second Respondent)

File Number(s): 2015/115083
Decision under appeal

Court or tribunal:

Supreme Court…

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: [2017] NSWCA 154
Decision Date: 23 June 2017

CaseChat Overview and Summary

Optus Administration Pty Limited (the appellant) sought restitution of moneys paid to Glenn Wright (the second respondent) pursuant to a declaration made by a primary judge. This declaration, made under section 151Z(1)(d) of the *Workers Compensation Act 1987* (NSW), required the appellant to indemnify the second respondent. However, this declaration was subsequently set aside on appeal. The appellant sought further orders for restitution of these moneys, but had not sought such restitution in its notice of appeal or at the hearing of the appeal. The matter came before the Court of Appeal of New South Wales, comprising Basten, Hoeben and Gleeson JJA.

The central legal issues before the Court of Appeal were whether it was appropriate to grant the appellant restitution of the moneys paid under the set-aside declaration, and whether interest should be awarded on those moneys. A further issue concerned the appropriate costs order for the application for restitution, given that the appellant had failed to seek this relief earlier. The Court also considered the application of rule 51.19 of the *Uniform Civil Procedure Rules 2005* (NSW) in relation to the appellant's failure to include the claim for restitution in its original appeal documents.

The Court determined that the appellant was entitled to restitution of the moneys paid. It acknowledged that the omission to claim restitution in the notice of appeal or at the hearing was an oversight by the appellant's lawyers. Despite this oversight, the Court found that it was appropriate to grant the relief sought, effectively ordering the repayment of the sum paid under the now-invalid declaration. The Court also ordered that judgment be entered for the appellant against the second respondent for the principal sum of $94,431.03, with effect from 24 May 2017. Regarding the costs of the motion for restitution, the Court ordered that each party bear its own costs, recognising that the appellant sought an indulgence and the respondent had no basis to oppose the making of the restitution order.

Orders

Orders of the court

(1) Judgment for the appellant against the second respondent for $94,431.03 with effect from 24 May 2017.

(2) Each party to pay its costs of the motion of 9 March 2017.

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.

Medium Neutral Citation:	Optus Administration Pty Limited v Glenn Wright by his tutor James Stuart Wright (No 2) [2017] NSWCA 154
Hearing dates:	On the papers
Decision date:	23 June 2017
Before:	Basten JA at [1]; Hoeben JA at [2]; Gleeson JA at [3]
Decision:	(1) Judgment for the appellant against the second respondent for $94,431.03 with effect from 24 May 2017. (2) Each party to pay its costs of the motion of 9 March 2017.
Catchwords:	RESTITUTION – other matters – recovery of money paid under judgment or order – where money paid by appellant pursuant to declaration by primary judge that appellant must indemnify second respondent under Workers Compensation Act 1987 (NSW), s 151Z(1)(d) – where declaration is set aside on appeal – where restitution not sought in notice of appeal or at the hearing – whether appropriate to deny interest in the present case. PROCEDURE – where appellant seeks a further order for restitution of moneys paid under a declaration which is set aside on appeal – where appellant failed to claim restitution in the notice of appeal or at the hearing of the appeal – where omission to claim restitution was an oversight by the appellant’s lawyers – Uniform Civil Procedure Rules 2005 (NSW), r 51.19. COSTS – restitution and interest on moneys paid under a judgment later set aside – where relief not sought in notice of appeal or at the hearing – appropriate order for costs of later application for restitution – where appellant seeks an indulgence and respondent to motion had no basis to oppose the making of an order for restitution.
Legislation Cited:	Civil Procedure Act 2005 (NSW), s 56 Supreme Court Act 1970 (NSW), s 75A(10) Uniform Civil Procedure Rules 2005 (NSW), rr 36.7(1), 42.1, 51.19, 51.54 Workers Compensation Act 1987 (NSW), s 151Z(1)(d)
Cases Cited:	Barrak Corporation Pty Ltd v Jaswil Properties Pty Ltd (No 2) [2016] NSWCA 149 Boral Limited v Foley & Bear Pty Ltd t/as J&R Industries (No 2) [2017] NSWCA 108 Cai v Zheng (No 2) [2009] NSWCA 317 Heydon v NRMA Ltd (No 2) (2001) 53 NSWLR 600; [2001] NSWCA 445 Optus Administration Pty Limited v Glenn Wright by his tutor James Stuart Wright [2017] NSWCA 21 Perisher Blue Pty Ltd v Vidakovic (No 2) [2006] NSWCA 326 Production Spray Painting & Panel Beating Pty Ltd v Newnham (No 2) (1992) 27 NSWLR 659 TCN Channel 9 Pty Ltd v Antoniadis (No 2) (1999) 48 NSWLR 381; [1999] NSWCA 104 Woolworths Limited v Strong (No 2) (2011) 80 NSWLR 445; [2011] NSWCA 72
Category:	Procedural and other rulings
Parties:	Optus Administration Pty Limited (Appellant) Glenn Wright by his tutor James Stuart Wright (First Respondent) IPA Personnel Pty Limited (Second Respondent)
Representation:	Counsel: GM Watson SC / DF Villa (Appellant) L Morgan (Second Respondent) Solicitors: Hunt and Hunt Lawyers (Appellant) Sparke Helmore (Second Respondent)
File Number(s):	2015/115083
Decision under appeal	Court or tribunal: Supreme Court…