Ritson v State of New South Wales

[2023] NSWCA 226

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

Ritson v State of New South Wales [2023] NSWCA 226

Hearing dates:

25 May 2023

Date of orders:

27 September 2023

Decision date:

27 September 2023

Before:

Meagher JA at [1],
Simpson AJA at [2],
Griffiths AJA at [74]

Decision:

1. Summons seeking leave to appeal is dismissed.

2. Notice of appeal filed on 28 November 2022 is dismissed.

3. Applicant is to pay the respondent’s costs of the proceedings.

Catchwords:

APPEALS – leave to appeal – Workers Compensation Act 1987 (NSW) s 151A – whether payment made under a deed of settlement recovered in respect of an injury – whether payment inclusive of costs constituted “damages” under Workers Compensation Act 1987 (NSW) s 149 – appeal filed as of right – amount in issue $825 – appeal incompetent – leave to appeal refused

Legislation Cited:

Civil Procedure Act 2005 (NSW) s 98

District Court Act 1973 (NSW) s 127
Legal Profession Act 2004 (NSW) s 338

Personal Injury Commission Act 2020 (NSW) ss 26, 27, 28, 54

Personal Injury Commission Rules 2021 (NSW) r 77

Supreme Court Act 1970 (NSW) s 48

Workers Compensation Act 1987 (NSW) ss 60, 66, 67, 149, 151A

Uniform Civil Procedure Rules 2005 (NSW) rr 13.4, 28.2, 42.1, 51.12

Cases Cited:

AAI Ltd Trading as GIO as Agent for the Nominal Defendant v McGiffen [2016] NSWCA 229

Attorney General for NSW v Gatsby (2018) 99 NSWLR 1; [2018] NSWCA 254

Burns v Corbett (2018) 265 CLR 304; [2018] HCA 15

Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26; 77 ALJR 1088

Gardiner v Laing O’Rourke Australia Construction Pty Ltd (2020) 102 NSWLR 599; [2020] NSWCA 151

JC Equipment Hire Pty Ltd v The Registrar of the Workers Compensation Commission of NSW (2008) 70 NSWLR 704; [2008] NSWCA 43

New South Wales Fire Brigades v Newman [2008] NSWCA 82

Ritson v State of New South Wales [2021] NSWPIC 409

Ritson v State of New South Wales [2022] NSWDC 133

Ritson v State of New South Wales (No 1) [2022] NSWDC 345

Ritson v State of New South Wales (No 2) [2022] NSWDC 347

State of New South Wales v Williamson [2011] NSWCA 183

Tarrant v Statewide Secured Investments Ltd [2011] NSWCA 248

The Age Company Ltd v Liu (2013) 82 NSWLR 268; [2013] NSWCA 26

Category:

Principal judgment

Parties:

Brendan Ritson (Applicant)
State of New South Wales (Respondent)

Representation:

Counsel:
In person (Applicant)
T J Dixon/L D Robison (Respondent)

Solicitors:
In person (Applicant)
HWL Ebsworth Lawyers (Respondent)

File Number(s):

2022/187065, 2022/362424

Publication restriction:

Nil

 Decision under appeal 

Court or tribunal:

District Court of NSW

Jurisdiction:

Civil

Citation:

[2022] NSWDC 345

Date of Decision:

27 May 2022

Before:

Neilson DCJ

File Number(s):

2021/341566

HEADNOTE

[This headnote is not to be read as part of the judgment]

On 22 January 2006, the applicant, Mr Ritson, suffered an injury to his right thumb in the course of his employment by the State of New South Wales (“the State”) as a police officer. He made a claim under the Workers Compensation Act 1987 (NSW) (“the WC Act”) and received compensation. On 10 March 2011, Mr Ritson was medically discharged from the New South Wales Police Force (“NSWPF”).

On 22 November 2011, Mr Ritson and NSWPF executed a Deed of Release (“the Deed”). A “Background” clause to the Deed identified several injuries sustained by Mr Ritson in the course of his employment with NSWPF. One of those injuries was the right thumb injury. By cl 3.1(b) of the Deed, NSWPF agreed to pay to Mr Ritson, amongst other sums, “an amount of five hundred thousand dollars ($500,000) for damages (clear of workers compensation payments made to date and inclusive of costs)”. That payment was expressed to be “in full and final satisfaction of the injuries as set out in this document”. The payment of $500,000 was in fact paid, although a minor deduction was made to take account of “wage payments” that had been made.

From August 2021, Mr Ritson began receiving further treatment on his right thumb. By Application for Expedited Assessment filed in the Personal Injury Commission (“PIC”) in September 2021, Mr Ritson sought, pursuant to s 60 of the WC Act, reimbursement of those medical expenses, which totalled $825. NSWPF disputed that it was liable for the claim, citing the Deed, and relying on s 151A(1)(a) of the WC Act, which relevantly provides:

“(1)   If a person recovers damages in respect of an injury from the employer liable to pay compensation under this Act then …

(a)   the person ceases to be entitled to any further compensation under this Act in respect of the injury concerned …”

Section 149 of the WC Act provides that “damages”, as that term is used in s 151A:

“… includes:

(a)   any form of monetary compensation, and

(b)   without limiting paragraph (a), any amount paid under a compromise or settlement of a claim for damages (whether or not legal proceedings have been instituted),

but does not include—

(c)   compensation under this Act, or

…

(h)   any amount paid in respect of costs incurred in connection with legal proceedings …”

As Mr Ritson was, at all relevant times, a resident of Queensland, his claim against the State involved an exercise of federal jurisdiction. Accordingly, PIC dismissed Mr Ritson’s Application for Expedited Assessment for want of jurisdiction. Mr Ritson obtained leave to make his application in the District Court, and the application was heard in May 2022. The primary judge dismissed the application, on the basis that s 151A precluded Mr Ritson’s claim.

In June 2022, Mr Ritson filed a summons in this Court seeking leave to appeal. The summons attached a draft notice of appeal, which proposed three grounds of appeal. The proposed grounds contended that the payment under cl 3.1(b) of the Deed was neither “damages” (ground 1), nor was it recovered “in respect of” Mr Ritson’s right thumb injury (ground 2), and that the primary judge denied Mr Ritson “natural justice” by failing to address his argument that the State’s conduct created an estoppel by convention (ground 3).

In November 2022, Mr Ritson filed a notice of appeal, purportedly as of right, which identified the same three grounds.

The State opposed the application for leave to appeal and, by notice of motion, sought orders that the purported appeal be dismissed as incompetent, on the basis that it did not satisfy the financial threshold ($100,000) prescribed by s 127(2)(c) of the District Court Act 1973 (NSW) for an appeal as of right.

On appeal, the issues were:

(i)    Whether Mr Ritson’s appeal was competent;

1. If Mr Ritson’s appeal was not competent, whether he should be granted leave to appeal against the order of the primary judge; and

2. If – and only if – Mr Ritson’s appeal was competent, or he was granted leave to appeal, whether his appeal should be allowed.

The Court (Simpson AJA, Meagher JA and Griffiths AJA agreeing) held, dismissing the application for leave to appeal and the purported appeal:

As to issue (i) (the competence of Mr Ritson’s appeal)

1. Mr Ritson’s purported appeal involved the sum of $825 and no more; accordingly, it could not proceed without leave, and was incompetent.

As to issue (ii) (leave to appeal)

1. None of Mr Ritson’s proposed grounds of appeal had any prospect of success, nor did the matter raise an issue of principle or a question of public importance. Accordingly, leave to appeal should be refused.

2. As to proposed ground 1, the fact that the sum of “damages” paid under cl 3.1 of the Deed was inclusive of costs did not preclude its characterisation as “damages” for the purposes of s 149 of the WC Act. Nor did it matter that Mr Ritson had never alleged that his right thumb injury was caused by the negligence of NSWPF: [36]-[51].

   State of New South Wales v Williamson [2011] NSWCA 183; New South Wales Fire Brigades v Newman [2008] NSWCA 82; Gardiner v Laing O’Rourke Australia Construction Pty Ltd (2020) 102 NSWLR 599; [2020] NSWCA 151, considered.

3. As to proposed ground 2, the Deed evinces a clear intention of the parties to include the right thumb injury as part of the settlement recorded in the Deed. Accordingly, the payment was recovered in respect of that injury for the purposes of s 151A, precluding Mr Ritson’s claim: [52]-[56].

4. As to proposed ground 3, even if the primary judge had more comprehensively dealt with the argument, it must have failed: [57]-[62].

JUDGMENT

1. MEAGHER JA: I agree with Simpson AJA.

2. SIMPSON AJA: These proceedings arise out of an application made by the applicant, Mr Brendan Ritson, initially to the Personal Injury Commission (“PIC”), on 27 September 2021. The application was for the payment of medical expenses of $825 for a “Co2 Fractional Ablative Laser Treatment for surgical scar to right thumb” pursuant to s 60 of the Workers Compensation Act 1987 (NSW) (“the WC Act”). The need for the treatment was said to arise from an injury suffered by Mr Ritson to his right thumb on 22 January 2006 while employed by the State of New South Wales (“the State”) as a police officer. Mr Ritson named the NSW Police Force (“NSWPF”) as respondent to the application.

3. On 20 October 2021 a Principal Member of PIC found that PIC had no jurisdiction to deal with the application because the application was made by Mr Ritson (who was then a resident of Queensland) against an entity of a State and therefore involved the exercise of federal jurisdiction with which PIC was not invested: Burns v Corbett (2018) 265 CLR 304; [2018] HCA 15; Attorney General for NSW v Gatsby (2018) 99 NSWLR 1; [2018] NSWCA 254. The Principal Member accordingly dismissed the application, purportedly pursuant to r 77(b)(iv) of the Personal Injury Commission Rules 2021 (NSW) (correctly, s 54(b) of the Personal Injury Commission Act 2020 (NSW) (“PIC Act”)): Ritson v State of New South Wales [2021] NSWPIC 409.

4. By summons filed in the District Court on 1 December 2021 Mr Ritson sought, pursuant to s 26(3) of the PIC Act, leave to make the application in the District Court. By notice of motion filed on 2 February 2022 NSWPF sought, pursuant to Uniform Civil Procedure Rules 2005 (NSW) r 13.4(1) (“UCPR”), summary dismissal of the summons. On 29 April 2022 a judge of the District Court, Dicker SC DCJ, granted Mr Ritson leave to make the application in the District Court: Ritson v State of New South Wales [2022] NSWDC 133.

5. Mr Ritson’s summons and NSWPF’s notice of motion came before Neilson DCJ (the primary judge) on 26 and 27 May 2022. Apparently of his own motion his Honour decided, rather than dealing with Mr Ritson’s summons or NSWPF’s notice of motion, to deal with the matter as a separate question of mixed fact and law pursuant to UCPR r 28.2. His Honour then disposed of both matters by making an “award for the defendant”: Ritson v State of New South Wales (No 1) [2022] NSWDC 345 (“the primary judgment”) at [71]. The effect of that disposition was dismissal of Mr Ritson’s application.

6. On 22 June 2022 Mr Ritson filed in this Court a summons seeking leave to appeal from the whole of the decision of Neilson DCJ, together with a draft notice of appeal. On 28 November 2022 Mr Ritson filed a notice of appeal, purportedly as of right pursuant to s 127 of the District Court Act 1973 (NSW). The notice of appeal was in the same terms as the draft notice of appeal earlier filed. In each case Mr Ritson named the State as respondent.

7. By notice of motion filed on 7 December 2022 the State sought orders that the (purported) appeal be dismissed as incompetent, on the basis that it did not satisfy the financial threshold ($100,000) prescribed by s 127(2)(c) of the District Court Act for an appeal as of right.

8. On 22 March 2023 Mr Ritson’s application for leave to appeal was listed before a two-judge bench of this Court, comprised of Ward P and myself. After discussion it became apparent that, given Mr Ritson’s assertion that he was entitled to appeal as of right, it would be expedient for the matter to be dealt with as a concurrent hearing of Mr Ritson’s application for leave to appeal and his notice of appeal, and NSWPF’s notice of motion, before a Court constituted by three judges. Accordingly, the hearing on that date was vacated and all matters relisted before the present bench.

9. The proceedings before this Court are:

1. Mr Ritson’s summons seeking leave to appeal filed on 22 June 2022;

2. Mr Ritson’s notice of appeal filed on 28 November 2022; and

3. NSWPF’s notice of motion filed on 7 December 2022 seeking dismissal of the notice of appeal.

Factual background

10. From 21 December 2001 until 10 March 2011 Mr Ritson was a serving member of NSWPF. He attained the rank of senior constable. On 22 January 2006 he was assaulted by an offender and sustained an injury to his right thumb. He made a claim under the WC Act which was accepted and his medical expenses were paid by NSWPF’s insurer. Mr Ritson was medically discharged from NSWPF on 10 March 2011.

11. Mr Ritson thereafter commenced a multiplicity of proceedings against NSWPF, and made a multiplicity of complaints against NSWPF and/or its officers or employees both during his employment and after his discharge. From August 2011 to November 2011 he also made a number of requests, including, for example, a request for a review of his medical discharge, and requests for documents under the Government Information (Public Access) Act 2009 (NSW).

12. On 22 November 2011 Mr Ritson and NSWPF (nominated as “an agency of the Crown in right of the State of NSW”) executed a Deed of Release (“the Deed”). A “Background” clause to the Deed identified several injuries, physical and/or psychological, sustained by Mr Ritson in the course of his employment with NSWPF. One of the injuries, identified in Background cl “L”, was the right thumb injury of 22 January 2006.

13. Background cl V recorded:

“Without admission of liability, the parties have agreed to resolve all of their differences and bring an end to all Claims by fully and finally settling all matters between them and any contemplated or potential Claims by Mr Ritson, in the manner set out in this document.”

14. By cl 2.1 of the Deed NSWPF agreed to pay to Mr Ritson the sum of $600,000 “in full and final settlement of” the various proceedings he had commenced, and of the various complaints and requests he had made (identified, respectively, in Schedules 1, 2 and 3 of the Deed), as well as the investigation of complaints in any way connected with breaches of Mr Ritson’s privacy, the facts and circumstances described more fully in the Background clause and any and all claims and entitlements (other than any claim for compensation or damages arising from exposure to asbestos) arising from Mr Ritson’s employment, contract of employment with NSWPF, on and off duty interactions with NSWPF or any of its officers, and his discharge from his employment by NSWPF.

15. In addition, by cl 3.1 of the Deed, NSWPF agreed to pay:

to Mr Ritson

(i) a sum of $50,000 ‘for permanent loss compensation’ pursuant to ss 66 and 67 of the WC Act (cl 3.1 (a)); and

1. $500,000 “for damages (clear of workers compensation payments made to date and inclusive of costs)” (cl 3.1 (b));

and to Medicare

1. the sum of $6,673.50 in satisfaction of a Notice of Past Benefits or Notice of Charge previously notified by Medicare (cl 3.1 (c)).

The payments were expressed to be “in full and final satisfaction of the injuries as set out in this [Deed].”

16. In consideration for these payments Mr Ritson released NSWPF from all “Claims” arising out of or in any way related to the matters set out at [11] above. “Claims” was defined broadly in cl 1.1 as “the Proceedings, Complaints and Requests” itemised in Schedules 1, 2 and 3, and “all other actions, complaints, requests” including contemplated or potential actions, complaints and requests, arising at law, in equity or under any statute.

17. On the same day Mr Ritson acknowledged, by a letter to NSWPF’s insurer annexed to the Deed, that he had received all entitlements to compensation in respect of the right thumb injury, requested that the claim in respect of that injury be closed, acknowledged that he had received independent legal advice about the request and that he was not making the request under duress, and undertook not to take any further action under that claim.

18. By “Admissions” contained in Sch 9 to the Deed Mr Ritson expressly admitted, with respect to the right thumb injury, that he had been fully compensated for that injury and:

“has no further entitlement to compensation and/ or work injury damages as a result of his employment with [NSWPF]”.

19. The payment of $500,000 referred to in cl 3.1(b) of the Deed was in fact paid, although a deduction was made to take account of “wage payments” that had been made. The amount actually paid to Mr Ritson under cl 3.1(b) was $498,789.20.

20. Notwithstanding the letter of 22 November 2011 signed in conjunction with the Deed, and the Admission contained in Sch 9 of the Deed, by Application for Expedited Assessment filed on 27 September 2021 Mr Ritson sought, pursuant to s 60 of the WC Act, reimbursement of medical expenses of $825 he claimed to have incurred, apparently in August 2021, in relation to the January 2006 right thumb injury. Section 60(1)(a) entitles an employee who has received an injury (as defined in s 4) to recover from his or her employer the costs of any medical or related treatment that is “reasonably necessary” as a result of the injury.

21. NSWPF disputed that it was liable for the claim, citing the Deed, and relying on s 151A(1)(a) of the WC Act, which provides that, where a person has recovered damages in respect of an injury (as defined) from an employer liable to pay compensation under the WC Act (except in presently immaterial circumstances) the person ceases to be entitled to any further compensation under the WC Act. NSWPF contended that Mr Ritson had, pursuant to cl 3.1(b) of the Deed, recovered damages in respect of the right thumb injury and was therefore disentitled to any further compensation under the WC Act, including compensation for medical expenses under s 60 thereof.

22. For the purposes of Part 5 of the WC Act (which is concerned with “Common law remedies” and in which s 151A appears), “damages” is defined in s 149, which provides as follows:

“(1) In this Part—

damages includes—

(a)   any form of monetary compensation, and

(b)   without limiting paragraph (a), any amount paid under a compromise or settlement of a claim for damages (whether or not legal proceedings have been instituted),

but does not include—

(c)   compensation under this Act, or

…

(h)   any amount paid in respect of costs incurred in connection with legal proceedings.”

23. The question for determination by the primary judge was whether Mr Ritson has “recovered damages in respect of an injury”, such that s 151A operates to bar Mr Ritson’s claim under s 60. The answer to that question turns on whether any or all of the payments made under the Deed constituted “damages” under s 149, and, if so, whether Mr Ritson recovered those damages “in respect of” the injury to his right thumb.

24. As indicated above, the primary judge took a wholly unorthodox (and unjustifiable) course. Rather than determine the issues presented for determination he converted an application made by summons in clear terms for compensation under s 60 of the WC Act, and a notice of motion for summary dismissal of the summons, into the determination of a separate question, purportedly pursuant to UCPR r 28.2. He identified the separate question as:

“whether [the Deed] establishes that [Mr Ritson] has recovered damages such that he is no longer entitled to bring the claim pursuant to s 60 [of the WC Act],”

25. Neither party complained of this departure from orthodoxy. The primary judge then failed to answer the question he had posed for himself or to deal with either Mr Ritson’s summons or NSWPF’s notice of motion, instead determining the issue by making “an award for the defendant [NSWPF]”, an order derived from the now defunct jurisdiction of the Workers Compensation Commission. Again, neither party complains of this second departure from orthodoxy. Both parties proceeded on the sensible basis that, properly understood, the effect of his Honour’s determination was to dismiss Mr Ritson’s claim for compensation under s 60 of the WC Act.

25. Having taken the course that he did the primary judge considered that there could be “no dispute” that the payment referred to in cl 3.1(b) of the Deed ($500,000) was a form of “monetary compensation”, and thus constituted “damages” as defined in s 149. The $498,789.20 Mr Ritson had received was received as “damages”. The primary issue, his Honour considered, was whether that money was recovered “in respect of” the injury to Mr Ritson’s right thumb. His Honour considered that references in the Deed to the right thumb injury indicated that the payment recovered was intended, in part, to settle any liability in NSWPF for that injury, and was thus recovered “in respect of [that] injury”. His Honour rejected Mr Ritson’s submission that, by reason of s 149(1)(h) of the WC Act, a lump sum payment which included an “amount paid in respect of costs” was not “damages”, unless that portion attributable to costs could be quantified and severed.

The proceedings in this Court

27. There are, potentially, three issues for determination by this Court:

1. Is Mr Ritson’s appeal competent? (This is the question raised by NSWPF’s notice of motion);

2. If Mr Ritson’s appeal is not competent, should he be granted leave to appeal against the order of the primary judge?;

3. If – and only if – Mr Ritson’s appeal is competent, or he is granted leave to appeal – should the appeal be allowed?

I propose to deal with the questions in that order.

1. The competence of Mr Ritson’s appeal

28. Section 127(1) of the District Court Act gives to a party dissatisfied with a judgment or order of the District Court a right of appeal to the Supreme Court. That right is limited by subs (2) which, in par (c), provides that, unless the appeal “involves a matter at issue amounting to or of the value of $100,000 or more” or “involves (directly or indirectly) any claim, demand or question to or respecting any property or civil right amounting to or of the value of $100,000 or more” an appeal lies only by leave. By s 48 of the Supreme Court Act 1970 (NSW) an appeal from an order of the District Court is assigned to this Court.

29. Mr Ritson’s claim in the District Court was for the sum $825.00. On its face, it falls well below the s 127(2)(c) threshold. Mr Ritson, however, contended that the “matter in issue” in the District Court was the sum of $498,789.20 which the primary judge found he had recovered as damages following the execution of the Deed. He did not elaborate to explain how that was the amount in issue. The submission is plainly untenable and should be rejected. No issue arose in the District Court as to the quantum paid to Mr Ritson under the Deed.

30. Mr Ritson’s next contention was that his claim “indirectly” involves the greater sum of $129,908.47. That is because he has made a further claim (postdating the proceeding in the District Court) under Pt 3, Div 2 of the WC Act for weekly payments of compensation which he calculates will, if successful, result in an award of compensation significantly exceeding $100,000. Drawing a very long bow indeed, Mr Ritson submitted that, if his appeal is not allowed, that potential claim will be (in his words) “stifled”. That may or may not be so, but the effect of the outcome of the proposed appeal has no bearing on whether the s 127(2)(c) threshold for an appeal as of right has been satisfied. The orders from which Mr Ritson seeks to appeal are orders made in a proceeding that involved a claim for medical expenses of $825.00. As Mr Ritson had not, at the time of determination of those proceedings, made any claim for payments of weekly compensation, there was no issue as to, and no determination of, his entitlement to those payments.

31. There is no substance in any of Mr Ritson’s responses to NSWPF’s notice of motion. It is plain beyond question that the appeal he proposes involves the sum of $825.00 and no more. It cannot proceed without leave. The purported appeal is incompetent.

32. The order sought by NSWPF in the notice of motion is for dismissal of the purported appeal. Whether or not that order should be made will depend on the outcome of Mr Ritson’s application for leave to appeal.

1. Should leave to appeal be granted?

33. The circumstances in which leave to appeal will be granted by this Court are well established, well known and well understood. In The Age Company Ltd v Liu (2013) 82 NSWLR 268; [2013] NSWCA 26 at [13], Bathurst CJ, with whom Beazley and McColl JJA agreed, summarised the applicable principles as follows:

“The principles governing the grant of leave are well established. They were summarised by Basten JA in Be Financial Pty Ltd as Trustee for Be Financial Operations Trust v Das [2012] NSWCA 164 at [32]–[38]. Generally speaking, it is only appropriate to grant leave in matters that involve issues of principle, questions of public importance or in circumstances where it is reasonably clear that an injustice has incurred by reason of error in the judgment, going beyond what is merely arguable.”

As indicated in the last sentence of this passage, the prospects of success in the proposed grounds of appeal are a material consideration.

34. Mr Ritson seeks to advance three grounds of appeal, which may be summarised as follows:

1. The primary judge erred in finding that the payment of $498,789.20 represents “damages” as defined in s 149(1) of the WC Act;

2. The primary judge erred in finding that that payment was made “in respect of” Mr Ritson’s right thumb injury for the purposes of s 151A(1) of the WC Act;

3. The primary judge denied Mr Ritson procedural fairness by failing to address an argument that NSWPF’s conduct created an estoppel by convention.

   35. Since, at this stage of the proceeding, the question is whether leave to appeal should be granted, each may be addressed briefly.

Ground 1: Was the payment of $498,789.20 properly characterised as “damages”?

36. The significance of the characterisation of the payment as damages is that it triggers s 151A of the WC Act, which precludes further recovery of compensation under that Act where damages have been recovered in respect of an injury compensable under the WC Act. It is worth repeating the relevant part of the Deed. By cl 3.1, NSWPF agreed to pay:

“(a) to Mr Ritson an amount of fifty thousand dollars ($50,000) for permanent loss compensation pursuant to ss 66 and 67 of the WC Act …;

(b)   to Mr Ritson an amount of five hundred thousand dollars ($500,000) [which was later reduced to $498,789.20 on account of previous payments] for “damages”…; and

…”

The compensation and damages referred to in pars (a) and (b) were agreed to be “in full and final satisfaction of the injuries as set out in this [Deed].”

37. Those “injuries” were identified in the Background clause and, at cl L, included the right thumb injury sustained by Mr Ritson on 22 January 2006 – the injury in respect of which he now seeks compensation for medical treatment expenses.

38. Mr Ritson advanced three bases for his contention that the payment of $498,789.20 did not constitute a payment of “damages”. All should be rejected.

39. Mr Ritson’s first argument was that the payment was a “global sum” covering damages, costs, and consideration for the releases and undertakings given by him in the Deed. Mr Ritson argued that, as there was no evidence of the breakdown of the amounts making up that sum, the portion paid as “damages” could not be discerned and that, as the payment included purposes other than “damages” (costs and consideration for releases and undertakings) it could not be characterised as damages. Mr Ritson relied on the decision of this Court in State of New South Wales v Williamson [2011] NSWCA 183 at [68] (“Williamson”). Reliance on that decision is misconceived.

40. Williamson concerned s 338 of the now repealed Legal Profession Act 2004 (NSW), by which an upper limit was imposed on costs for legal services recoverable by a law practice in connection with a claim for “personal injury damages” where the amount recovered by the plaintiff did not exceed $100,000. The cap was 20% of the amount recovered or $10,000, whichever was greater. Mr Williamson brought proceedings for assault, wrongful arrest and false imprisonment and claimed that he had been caused personal injury.

41. Mr Williamson settled his claim for less than $100,000, and so, if the claim were for personal injury, the cap on legal services costs applied. This Court held that the claim for false imprisonment was not a claim for personal injury damages and was a non-severable and non-negligible part of Mr Williamson’s settlement. The Court therefore held that the cap did not apply. It might have been different, the Court considered, if the matter had proceeded to trial and judgment and the reasons for judgment made clear precisely what amount had been awarded for each of the causes of action alleged.

42. The reasoning in Williamson does nothing to assist Mr Ritson.

43. Mr Ritson’s second argument was that, because the payment was said to be “inclusive of costs”, s 149(1)(h) of the WC Act precluded its characterisation as “damages”. Section 149(1)(h) expressly excludes from the definition of “damages” “any amount paid in respect of costs incurred in connection with legal proceedings”. On Mr Ritson’s argument, any payment that included a component for costs does not fall within the s 149(1)(a) and (b) definition. He relied on the decision of this Court in New South Wales Fire Brigades v Newman [2008] NSWCA 82 (“Newman”). In that case, Ms Newman, who was an employee of NSW Fire Brigades, made a claim for damages under the Motor Accidents Compensation Act 1999 (NSW), which she did not pursue, preferring, apparently, to rely on her rights under the WC Act. The insurer of the owner of the motor vehicle, against whom she had initially claimed damages, settled the claim by paying $1,500 expressly for Ms Newman’s legal costs. Ms Newman made a further claim under the WC Act, which NSW Fire Brigades resisted by claiming that, as she had recovered damages, s 151Z(1)(c) of the WC Act precluded any further payment of workers compensation.

44. That claim was rejected by this Court, which held that the $1,500 was paid as legal costs, and, by s 149(1)(h) was excluded from the definition of “damages”.

45. Mr Ritson’s reliance on Newman is misconceived. In that case, the entirety of the payment relied on by NSW Fire Brigade as “damages” was attributable to legal costs. Newman is not authority for the proposition that, if any part of a payment is attributable to legal costs, the whole of the payment falls within the s 149(1)(h) exclusion. The mere fact that some component of the payment is attributable to costs does not exclude the payment from the s 149(1)(a) or (b) definition. It is plain from the tenor of the Deed that a substantial part of the amount to be paid to Mr Ritson was in respect to the injuries (not necessarily only, but including, the right thumb injury of January 2006) that Mr Ritson had (or claims to have) suffered.

46. Mr Ritson’s final argument under this ground was that the WC Act is concerned with “damages” payable in respect of an injury caused by the negligence or other tort of the employer. As he had never alleged that his right thumb injury was caused by the negligence of NSWPF, the payment was not “for damages” for an injury.

47. The proposition upon which Mr Ritson placed reliance is drawn from the reasons of Basten JA in Gardiner v Laing O’Rourke Australia Construction Pty Ltd (2020) 102 NSWLR 599; [2020] NSWCA 151 at [36] (“Gardiner”). In that paragraph Basten JA said:

“As already noted, there are powerful arguments in favour of the view that the [WC Act] is concerned with ‘damages’ payable in respect of an injury caused by the negligence or other tort of the employer, and not amounts recoverable in satisfaction of a liability created by an extraneous statutory scheme.”

48. In Gardiner an employee had made concurrent claims under the Anti-Discrimination Act 1977 (NSW) and the WC Act. The Anti-Discrimination Act claim was for discrimination on grounds of disability and victimisation. A conciliation conference resulted in a Deed of Release and Confidentiality and payment of a sum of money and a separately quantified sum for legal costs.

49. Dr Gardiner’s claim made under the WC Act was initially rejected on the basis that he had received a payment of “damages” in respect of the same “injury”, and his claim for compensation under the WC Act was therefore precluded by s 151A thereof.

50. An appeal to this Court was upheld. The majority of the Court (Leeming JA and Emmett AJA) considered that the payment was not “in respect of an injury” as required before s 151A operated to preclude further compensation under the WC Act. Neither Leeming JA nor Emmett AJA supported or assented to the reasoning of Basten JA.

51. None of Mr Ritson’s arguments in support of his contention that the payment of $489,789.20 was not a payment of “damages” for the purposes of s 151A of the WC Act has any prospect of success on appeal. The payment is expressly stated, in cl 3.1(b), to be “for damages”. That is distinct from cl 3.1(a), which is expressed to be “for permanent loss compensation” under ss 66 and 67 of the WC Act. I have not overlooked par (c) of s 149 of the WC Act (on which Mr Ritson did not rely) by which “compensation under [the WC Act]” is excluded from the definition of “damages”. Clause 3.1(a) of the Deed identified the payment of such compensation; that is a clear indication that the payment of $500,000 was for “damages” as distinct from compensation under the WC Act. I would therefore not grant leave to appeal on this ground.

Ground 2: was the payment of $498,789.20 “in respect of” the injury of 20 January 2006?

52. Mr Ritson’s argument in this respect was not easy to follow. He listed numerous “surrounding circumstances” which he appears to consider to be relevant to whether the damages were “in respect of” his right thumb injury.

53. Among the circumstances relied on by Mr Ritson is correspondence between NSWPF and Commonwealth health authorities. These have no bearing on the character of the payments made under the Deed.

54. Mr Ritson referred also to the “Admissions” contained in Sch 9 of the Deed by which he acknowledged that he had no further entitlement to compensation or work injury damages in respect of the right thumb injury. It appears that, by this, he intended to argue that the right thumb injury was extraneous to the Deed. If that is the purpose of his reference to the Admissions, it is belied by the Deed itself, in which the right thumb injury is listed at Background cl L. Background cl L is not the only reference in the Deed for the right thumb injury; there are multiple other references which make it plain beyond doubt that the right thumb injury was included as part of the settlement. Background cl V is an abundantly clear statement that all Mr Ritson’s claims were to be incorporated in the settlement recorded in the Deed.

55. I have carefully examined the various “surrounding circumstances” on which Mr Ritson relied. There is nothing in that that overcomes the clear intention of the parties that the right thumb injury was included as part of the settlement recorded in the Deed.

56. This proposed ground of appeal has no prospect of success. I would, accordingly, not grant leave to appeal on this ground.

Ground 3: did the primary judge deny procedural fairness by failing to address an argument that the conduct of NSWPF created an estoppel by convention?

57. It is not in doubt that failure on the part of a decision-maker to address a “substantial, clearly articulated argument relying on established facts” constitutes a denial of procedural fairness: Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26; 77 ALJR 1088; AAI Ltd Trading as GIO as Agent for the Nominal Defendant v McGiffen [2016] NSWCA 229.

58. Mr Ritson relied on JC Equipment Hire Pty Ltd v The Registrar of the Workers Compensation Commission of NSW (2008) 70 NSWLR 704; [2008] NSWCA 43, in which (at [74]-[76]) the concept of estoppel by convention was discussed by Tobias JA with whom Campbell and Bell JJA agreed. The concept is based upon an agreed or assumed state of facts, the assumption being common to both parties.

59. As emerged in the oral argument, it seems that Mr Ritson’s argument that an estoppel by convention was created came down to a single document. That was a letter sent on behalf of NSWPF to Mr Ritson’s then solicitors, enclosing the payment of $498,789.20 with the statement that the agreed sum of $500,000 the subject of cl 3.1(b) had been reduced to represent “wages paid in advance”. The point Mr Ritson sought to make to the primary judge was that, as he had received “wages payments” in respect of the psychological injuries he claimed, but had not received any “wages payments” in respect of the right thumb injury, the letter implied that the damages amount the subject of cl 3.1(b) of the Deed was (entirely) for psychological injury, to the exclusion of the right thumb injury.

60. An argument to that effect was put to the primary judge, although it could hardly be said that it was “clearly articulated”. In any event, although the primary judge made no express reference to the argument or to the authorities on which Mr Ritson relied, he did address the point at [67] of the primary judgment. His Honour said:

“The fact that the insurer of [NSWPF] attributed payments to one claim rather than another is irrelevant. If all the payments were allocated to a psychiatric illness allegation and not to the [D]eed that can have no bearing on the proper interpretation of the [D]eed because it was done after the [D]eed had been executed. Furthermore, an administrative decision made by an insurer has little legal significance as I have earlier said in another context.”

61. That response to Mr Ritson’s argument is plainly correct. Mr Ritson’s argument, like his argument in support of proposed ground 1, was to the effect that the “$500,000 damages” could not be “dissected”. That is plainly wrong. The $500,000 was clearly intended to be by way of damages for any entitlement Mr Ritson had, including the right thumb injury. Even if the primary judge had more comprehensively dealt with the argument, it must have failed.

62. There is, therefore, no substance to ground 3 of the proposed appeal. All proposed grounds should be rejected. Nor is there any issue of principle or question of public importance. The proposed appeal is confined to the construction of an agreement between these parties. It follows that leave to appeal should not be granted.

63. It follows also that the orders sought by NSWPF in its notice of motion, that the notice of appeal filed purportedly as of right should be dismissed, should be made.

Costs

64. At the conclusion of the oral argument Mr Ritson raised a question of costs of the proceedings in this Court. He recognised that, should he be successful, he could recover only his expenses incurred in relation to the proceedings. His main concern was the potential of an award of costs against him in the event that he was unsuccessful (as, if the orders I have proposed prevail, he will be).

65. Such an argument had also been raised in the District Court, following NSWPF’s success in defending Mr Ritson’s summons. On 17 August 2022 the primary judge dismissed an application by NSWPF for costs, giving lengthy reasons: Ritson v State of New South Wales (No 2) [2022] NSWDC 347. As NSWPF has not sought to challenge that decision it is not necessary to explore the reasons. It is sufficient to note that his Honour determined not to award costs in favour of NSWPF both as a matter of statutory construction (after examining a long history of legislation relating to costs in relation to claims under the WC Act), and as a matter of discretion.

66. Mr Ritson made two points in opposition to an award of costs against him. One was that, in his Summary of Argument accompanying his application for leave to appeal, he had consented to the application being dealt with in the absence of the public and without the attendance of any person: see UCPR r 51.12(4)(f). That argument may have had some weight had the proceedings stopped with the filing of the summons seeking leave to appeal: see Tarrant v Statewide Secured Investments Ltd [2011] NSWCA 248 at [19]. But the proceedings did not stop with the filing of the summons seeking leave to appeal. That summons was filed on 22 June 2022; the Summary of Argument is dated 21 June 2022 (and was, presumably, filed with the Summons). The Notice of Appeal by which
    Mr Ritson purported to appeal as of right was filed on 28 November 2022, necessitating NSWPF’s notice of motion. Any benefit Mr Ritson might have obtained by his consent to having the summons seeking leave to appeal dealt with on the papers was nullified by his filing of the notice of appeal.

64. Mr Ritson’s other argument involved somewhat complex statutory provisions. His claim was initially made in PIC, but, as outlined above, could not be dealt with in that tribunal because of his interstate residence. It was necessary that it be dealt with in the District Court as a “substituted proceeding”: PIC Act s 27.

65. Mr Ritson argued that, had he been a resident of NSW, it would not have been necessary for him to resort to the District Court; his claim would have been dealt with in PIC, which, he contended, had no power to award costs against him. He should not, he argued, be in a worse position because of his interstate residency.

66. Whether or not it is correct that PIC has no power to award costs is not to the point. The present proceeding is not an application in PIC; it is an application for leave to appeal from a decision of the District Court. Section 28 of the PIC Act makes express provision with respect to “substituted proceedings”. Subsection (1)(b) provides as follows:

“The legislation applicable to appeals against decisions of the District Court applies to decisions of the Court instead of appeal provisions specified by or under this Act, enabling legislation or any other legislation.”

70. Section 98 of the Civil Procedure Act 2005 (NSW) relevantly provides:

“Subject to rules of court and to this or any other Act—

(a)   costs are in the discretion of the court, and

(b)   the court has full power to determine by whom, to whom and to what extent costs are to be paid, and

(c)   the court may order that costs are to be awarded on the ordinary basis or on an indemnity basis.”

71. UCPR r 42.1 provides:

“Subject to this Part, if the court makes any order as to costs, the court is to order that the costs follow the event unless it appears to the court that some other order should be made as to the whole or any part of the costs.”

72. I am not persuaded that any order other than that costs follow the event should be made. Mr Ritson has purported to bring a patently untenable appeal. While his interstate residency might, conceivably, be a basis for the departure from the usual costs order in the District Court, it provides no basis whatever for departure from the ordinary rule in this Court.

73. Accordingly, the orders I propose are:

1. The summons seeking leave to appeal is dismissed;

2. The notice of appeal filed on 28 November 2022 is dismissed;

3. The applicant is to pay the respondent’s costs of the proceedings.

74. GRIFFITHS AJA: I agree with Simpson AJA.

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Decision last updated: 27 September 2023