Optus Administration Pty Limited v Glenn Wright by his tutor James Stuart Wright (No 2)

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.