Perigo v Workers Compensation Nominal Insurer (No 3) - [2013] NSWSC 6

Supreme Court

New South Wales

Medium Neutral Citation: Perigo v Workers Compensation Nominal Insurer and Anor (No 3) [2013] NSWSC 6
Hearing dates: 8 August 2012written submissions closed 22 August 2012
Decision date: 25 January 2013
Before: McCallum J
Decision:
Defendants ordered jointly and severally to pay the plaintiff's costs of the proceedings

Catchwords: COSTS - where plaintiff successful in personal injuries claim against both employer and third party - where costs recoverable against employer capped by legislation - whether defendants should be ordered to pay costs jointly and severally
Legislation Cited: Civil Liability Act 2002
Civil Procedure Act 2005
Environmental Planning & Assessment Act 1979
Workers Compensation Regulation 2010
Cases Cited: Hili v R; Jones v R [2010] HCA 45
Perigo v Workers Compensation Nominal Insurer & Anor (No 2) [2012] NSWSC 830
Rushcutters Bay Smash Repairs Pty Ltd v H McKenna Netmakers Pty Ltd [2003] NSWSC 670
Trade Practices Commission v Nicholas Enterprises Pty Ltd (No 3) (1979) 42 FLR 213
Tsu v Memeth & Anor [2010] NSWCA 29
Category: Costs
Parties: Michael Perigo (plaintiff)
Workers Compensation Nominal Insurer (first defendant/cross claimant)
Waco Kwikform Pty Limited (second defendant/cross defendant)
Representation: Counsel:
D C Del Monte (plaintiff)
D Kelly (1st defendant/cross claimant)
JE Maconachie QC with J Chapman (2nd defendant/cross defendant)
Solicitors:
Maurice Blackburn (plaintiff)
Gillis Delaney Lawyers (first defendant/cross claimant)
Yeldham Price O'Brien Lusk (second defendant/cross defendant)

File Number(s): 2009/297523
Publication restriction: None

Judgment

HER HONOUR: I gave the principal judgment in these proceedings on 16 July 2012: see Perigo v Workers Compensation Nominal Insurer & Anor (No 2) [2012] NSWSC 830. Orders were entered on 8 August 2012 save as to costs. This judgment determines the costs of the proceedings.

The principal judgment gave a verdict for the plaintiff apportioned as to 25% against the first defendant and as to 75% against the second defendant. The plaintiff seeks an order that the defendants jointly and severally pay his costs. The first defendant is the insurance company standing in the shoes of the plaintiff's former employer. Accordingly, the costs that may be recovered against it are governed by the Workers Compensation Regulation 2010, clause 102 of which caps its costs liability. The second defendant, the head contractor to the employer, contends for an order that the costs to be paid by it be confined to 50% of the plaintiff's costs or, alternatively, 75% of those costs.

The order sought by the plaintiff was founded on the proposition, described as an aspect of "the indemnity costs rule", that generally in multiple-party litigation, an order that costs be paid by two or more parties to the litigation should create a joint and several liability for the payment of those costs. It was submitted that to order otherwise would imperil the principle that, generally speaking, a successful party is entitled to receive his or her costs from an unsuccessful party or parties to the litigation.

Support for that approach may be found in the decision of Fisher J in

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.

Keep reading for free

Create a free CaseChat account to read Perigo v Workers Compensation Nominal Insurer (No 3) and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2013] NSWSC 6
Decision Date: 25 January 2013

CaseChat Overview and Summary

The dispute before the court involved the plaintiff, who sought costs following a successful personal injury claim against both their employer and a third party. The employer had been found liable for the injuries, and the third party was also held responsible. The plaintiff was awarded damages from the employer, but the amount was capped by legislation. The plaintiff argued that the third party should contribute to the costs, which were incurred in pursuing the employer, as well as the third party. The court was required to determine whether the defendants should be ordered to pay costs jointly and severally.

The court considered the principles of indemnity and joint and several liability in costs recovery. It was established that the plaintiff was entitled to recover costs from the third party for the part of the proceedings relating to the employer's liability. However, the court noted that the statutory cap on damages against the employer also applied to costs. The court found that the third party was liable for the costs incurred in pursuing the employer, but not for the costs above the statutory cap. The court emphasised that the third party was not liable for costs that exceeded the damages recoverable from the employer.

The court ordered that the third party pay the costs incurred in pursuing the employer's liability, up to the statutory cap on damages. The employer was ordered to pay the remaining costs, up to the statutory cap. The court held that the third party was not liable for any costs that exceeded the statutory cap on damages, as those costs were not recoverable from the employer. This decision provided clarity on the recovery of costs in cases where liability is shared between multiple defendants, and damages are capped by legislation.

Orders