Ryan v Workers Compensation Nominal Insurer (No 2)

Link copied
Case Copied 12 min read

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

Fabre v Lui [2015] NSWCA 312

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

Vale v Eggins (No 2) [2007] NSWCA 12

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:
K Rewell SC (Applicant)
W Fitzsimmons SC (Respondent)

Solicitors:
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

  1. 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.

  2. More than six years later, on 23 March 2018, proceedings were commenced against Mr Ryan in the District Court, on…

CaseChat AU logo

Keep reading for free

Create a free CaseChat account to read Ryan v Workers Compensation Nominal Insurer (No 2) 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
[2020] NSWCA 129
Decision Date

CaseChat Overview and Summary

In *Ryan v Workers Compensation Nominal Insurer (No 2)*, the Court of Appeal of New South Wales considered an appeal concerning the appropriate costs order following a successful defence by the Workers Compensation Nominal Insurer (the defendant) in proceedings brought under section 151Z(1)(d) of the *Workers Compensation Act 1987* (NSW). The underlying dispute related to a motor vehicle accident that occurred many years prior to the commencement of recovery proceedings.

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

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.