Ryan v Workers Compensation Nominal Insurer (No 2)

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.