Toll Pty Ltd v Harradine (No 2) - [2017] NSWCA 75

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Toll Pty Ltd v Harradine (No 2) [2017] NSWCA 75
Hearing dates: On the papers
Decision date: 10 April 2017
Before: Meagher JA, Sackville AJA, Schmidt J
Decision:
1.   In lieu of Orders 1 and 2 made by the primary Judge on 3 March 2016 make the following orders:
(1)   Judgment for the plaintiff (Worker) in the sum of $660,898.00.
(2)   Note that the defendant (Toll) is entitled to a credit of $71,631.00 for workers compensation payments already made to the Worker.
(3)   Note that Toll is further entitled to a credit of $400,000.00 pursuant to an order made by McLoughlin DCJ on 4 April 2016.
(4)   No order as to the costs of the District Court proceedings, with the intent that each party should bear his or its own costs.
2.   No order as to the costs of the appeal with the intent that each party should bear his or its own costs.

Catchwords: COSTS – proceedings unsuccessfully claiming damages under the Motor Accidents Compensation Act 1999 (NSW) – consequence is that damages are assessed under the Workers Compensation Act 1987 (NSW) and the Workplace Injury Management and Workers Compensation Act 1998 (NSW) (WIM Act) – whether proceedings “in relation to a claim for work injury damages” within s 346(1) of the WIM Act
Legislation Cited:
Civil Procedure Act 2005 (NSW), s 98
Interpretation Act 1987 (NSW), s 30(1)(c), (e)
Motor Accidents Compensation Act 1999 (NSW)
Workers Compensation Act 1987 (NSW), Pt 5
Workplace Injury Management and Workers Compensation Act 1998 (NSW), s 346, Pt 6
Workers Compensation Regulation 2003 (NSW), reg 91
Workers Compensation Regulation 2010 (NSW), reg 104
Workers Compensation Regulation 2016 (NSW), regs 94, 96, Sch 8 cl 39(1)
Cases Cited: Chubs Constructions Pty Ltd v Chamma (No 2) (2010) 78 NSWLR 679; [2010] NSWCA 225
Fox v Wood (1981) 148 CLR 438; [1981] HCA 41
Smith v Sydney West Area Health Service (No 2) [2009] NSWCA 62
Toll Pty Ltd v Harradine [2016] NSWCA 374
Category: Costs
Parties: Toll Pty Ltd (Appellant)
Jay Anthony Harradine (Respondent)
Representation: Solicitors:
BBW Lawyers (Appellant)
Herbert Weller (Respondent)

File Number(s): 2016/87874
Decision under appeal

Court or tribunal:

District Court of New South Wales

Jurisdiction:

Civil

Date of Decision:

3 March 2016

Before:

McLoughlin DCJ

File Number(s):

2013/8504

Judgment

THE COURT: On 21 December 2016, this Court made the following orders:[1]

(1) Appeal allowed.

(2) Set aside the judgment for the respondent in the sum of $1,070,499.00 given on 3 March 2016.

(3) Set aside the costs order made against the appellant by the primary Judge on 4 March 2016.

(4) Direct the parties to bring in agreed short minutes of order on or before 25 January 2017 giving effect to these reasons for judgment.

(5) If the parties are unable to agree, each should file short minutes of order proposed together with brief written submissions not exceeding four pages on or before 25 January 2017.

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.

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Details

Case: [2017] NSWCA 75
Decision Date: 10 April 2017

CaseChat Overview and Summary

The proceedings involved Toll Pty Ltd as the defendant and an unnamed plaintiff, referred to as the Worker, who had claimed damages under the *Motor Accidents Compensation Act 1999* (NSW). The dispute concerned the assessment of damages and the consequential costs orders, particularly in light of the Worker's claim being unsuccessful under that Act, leading to damages being assessed under the *Workers Compensation Act 1987* (NSW) and the *Workplace Injury Management and Workers Compensation Act 1998* (NSW) (WIM Act). The matter was heard by Meagher JA, Sackville AJA, and Schmidt J.

The central legal issue before the court was whether the Worker's proceedings, which ultimately resulted in damages being assessed under the WIM Act, constituted proceedings "in relation to a claim for work injury damages" for the purposes of s 346(1) of the WIM Act. This determination was critical for establishing the appropriate costs orders for the District Court proceedings.

The court reasoned that the initial claim under the *Motor Accidents Compensation Act 1999* (NSW) was unsuccessful, and the subsequent assessment of damages fell within the ambit of the WIM Act. Consequently, the proceedings were considered to be "in relation to a claim for work injury damages" as contemplated by s 346(1) of the WIM Act. This interpretation led the court to conclude that the usual costs orders applicable to such claims should not apply.

In lieu of the primary judge's orders, the court ordered judgment for the plaintiff (Worker) in the sum of $660,898.00, noting credits for workers compensation payments already made and a further credit of $400,000.00. Crucially, the court made no order as to the costs of the District Court proceedings, stipulating that each party should bear their own costs. Similarly, no order was made as to the costs of the appeal, with each party to bear their own costs.

Orders

Orders of the court

1. In lieu of Orders 1 and 2 made by the primary Judge on 3 March 2016 make the following orders:

(1) Judgment for the plaintiff (Worker) in the sum of $660,898.00.

(2) Note that the defendant (Toll) is entitled to a credit of $71,631.00 for workers compensation payments already made to the Worker.

(3) Note that Toll is further entitled to a credit of $400,000.00 pursuant to an order made by McLoughlin DCJ on 4 April 2016.

(4) No order as to the costs of the District Court proceedings, with the intent that each party should bear his or its own costs.

2. No order as to the costs of the appeal with the intent that each party should bear his or its own costs.

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.

Medium Neutral Citation:	Toll Pty Ltd v Harradine (No 2) [2017] NSWCA 75
Hearing dates:	On the papers
Decision date:	10 April 2017
Before:	Meagher JA, Sackville AJA, Schmidt J
Decision:	1. In lieu of Orders 1 and 2 made by the primary Judge on 3 March 2016 make the following orders: (1) Judgment for the plaintiff (Worker) in the sum of $660,898.00. (2) Note that the defendant (Toll) is entitled to a credit of $71,631.00 for workers compensation payments already made to the Worker. (3) Note that Toll is further entitled to a credit of $400,000.00 pursuant to an order made by McLoughlin DCJ on 4 April 2016. (4) No order as to the costs of the District Court proceedings, with the intent that each party should bear his or its own costs. 2. No order as to the costs of the appeal with the intent that each party should bear his or its own costs.
Catchwords:	COSTS – proceedings unsuccessfully claiming damages under the Motor Accidents Compensation Act 1999 (NSW) – consequence is that damages are assessed under the Workers Compensation Act 1987 (NSW) and the Workplace Injury Management and Workers Compensation Act 1998 (NSW) (WIM Act) – whether proceedings “in relation to a claim for work injury damages” within s 346(1) of the WIM Act
Legislation Cited:	Civil Procedure Act 2005 (NSW), s 98 Interpretation Act 1987 (NSW), s 30(1)(c), (e) Motor Accidents Compensation Act 1999 (NSW) Workers Compensation Act 1987 (NSW), Pt 5 Workplace Injury Management and Workers Compensation Act 1998 (NSW), s 346, Pt 6 Workers Compensation Regulation 2003 (NSW), reg 91 Workers Compensation Regulation 2010 (NSW), reg 104 Workers Compensation Regulation 2016 (NSW), regs 94, 96, Sch 8 cl 39(1)
Cases Cited:	Chubs Constructions Pty Ltd v Chamma (No 2) (2010) 78 NSWLR 679; [2010] NSWCA 225 Fox v Wood (1981) 148 CLR 438; [1981] HCA 41 Smith v Sydney West Area Health Service (No 2) [2009] NSWCA 62 Toll Pty Ltd v Harradine [2016] NSWCA 374
Category:	Costs
Parties:	Toll Pty Ltd (Appellant) Jay Anthony Harradine (Respondent)
Representation:	Solicitors: BBW Lawyers (Appellant) Herbert Weller (Respondent)
File Number(s):	2016/87874
Decision under appeal	Court or tribunal: District Court of New South Wales Jurisdiction: Civil Date of Decision: 3 March 2016 Before: McLoughlin DCJ File Number(s): 2013/8504