Court of Appeal
Supreme Court
New South Wales
Medium Neutral Citation: Ryan v Workers Compensation Nominal Insurer (No 2) [2020] NSWCA 129 Hearing dates: On the papers Decision date: 03 July 2020 Before: Leeming JA;
Payne JA;
White JA.Decision: 1. Vary order 2 made on 11 March 2020 by replacing “costs” with the words “(i) the defendant to pay the plaintiff’s costs on the ordinary basis up to 25 July 2018, and (ii) the plaintiff to pay the defendant’s costs on an indemnity basis from 26 July 2018”, such that order 2 as varied will read:
“2. Set aside the orders made on 13 August 2019, and in lieu thereof, order that the proceedings be dismissed, with (i) the defendant to pay the plaintiff's costs on the ordinary basis up to 25 July 2018, and (ii) the plaintiff to pay the defendant’s costs on an indemnity basis from 26 July 2018.”
2. The Workers Compensation Nominal Insurer to pay Mr Ryan’s costs of the notice of motion dated 25 March 2020.
Catchwords: COSTS – offer of compromise – small offer made by defendant shortly after recovery proceedings commenced in District Court pursuant to Workers Compensation Act 1987 (NSW) s 151Z(1)(d) – motor vehicle accident many years earlier – ample time to investigate – defendant ultimately successful in Court of Appeal – whether offer of compromise amounted to genuine compromise – significance of important evidence emerging later in litigation
Legislation Cited: Uniform Civil Procedure Rules 2005 (NSW), r 42.15
Workers Compensation Act 1987 (NSW), s 151Z
Cases Cited: Croghan v Blacktown City Council (2019) 100 NSWLR 757; [2019] NSWCA 248
Herning v GWS Machinery Pty Ltd [No 2] [2005] NSWCA 375
Morgan v Johnson (1998) 44 NSWLR 578
Nominal Defendant v Hawkins [2011] NSWCA 93
Regency Media Pty Ltd v AAV Australia Pty Ltd [2009] NSWCA 368
Category: Costs Parties: Stephen Patrick Ryan (Applicant on motion for special costs order)
Workers Compensation Nominal Insurer (Respondent to motion for special costs order)Representation: Counsel:
Solicitors:
K Rewell SC (Applicant)
W Fitzsimmons SC (Respondent)
McInnes Wilson Lawyers NSW (Applicant)
Stiles Lawyers (Respondent)
File Number(s): 2019/221432 Publication restriction: Nil Decision under appeal
- Court or tribunal:
- District Court of New South Wales
- Jurisdiction:
- Civil
- Date of Decision:
- 13 August 2019
- Before:
- Curtis ADCJ
- File Number(s):
- 2018/00093520
Judgment
-
LEEMING and PAYNE JJA: Mr Bradley Stahlhut collided into the rear of Mr Stephen Patrick Ryan's stationary articulated oversized vehicle on the Princes Highway at around 6:00 am on 30 June 2011 while the latter was waiting to turn right at an intersection. Mr Stahlhut was seriously injured. He was on his way to work. His employer seemingly had not paid workers compensation insurance premiums. Substantial amounts of workers compensation were thereafter paid by the Workers Compensation Nominal Insurer to him.
-
More than six years later, on 23 March 2018, proceedings were commenced against Mr Ryan in the District Court, on…
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- Case
- [2020] NSWCA 129
- Decision Date
CaseChat Overview and Summary
The central legal issues before the Court of Appeal were whether an offer of compromise made by the defendant shortly after the recovery proceedings were commenced in the District Court constituted a "genuine compromise" for the purposes of awarding indemnity costs, and the significance of important evidence that emerged later in the litigation in determining the appropriate costs order.
The Court of Appeal reasoned that an offer of compromise, to be considered genuine, must reflect a realistic assessment of the strengths and weaknesses of the case at the time it is made. In this instance, the defendant had ample time to investigate the claim before the offer was made. The Court found that the offer, made so early in the proceedings and without the benefit of later-emerging crucial evidence, did not amount to a genuine compromise. Consequently, the Court varied the earlier costs order, ordering that the defendant pay the plaintiff's costs on the ordinary basis up to 25 July 2018, and the plaintiff pay the defendant's costs on an indemnity basis from 26 July 2018. The defendant was also ordered to pay the plaintiff's costs of a specific notice of motion.
Orders
Orders of the court
1. Vary order 2 made on 11 March 2020 by replacing “costs” with the words “(i) the defendant to pay the plaintiff’s costs on the ordinary basis up to 25 July 2018, and (ii) the plaintiff to pay the defendant’s costs on an indemnity basis from 26 July 2018”, such that order 2 as varied will read:
“2. Set aside the orders made on 13 August 2019, and in lieu thereof, order that the proceedings be dismissed, with (i) the defendant to pay the plaintiff's costs on the ordinary basis up to 25 July 2018, and (ii) the plaintiff to pay the defendant’s costs on an indemnity basis from 26 July 2018.”
2. The Workers Compensation Nominal Insurer to pay Mr Ryan’s costs of the notice of motion dated 25 March 2020.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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