Workers Compensation Nominal Insurer v Allmen Engineering Projects Pty Ltd - [2019] NSWSC 1582

Supreme Court

New South Wales

Medium Neutral Citation: Workers Compensation Nominal Insurer v Allmen Engineering Projects Pty Ltd [2019] NSWSC 1582
Hearing dates: 7 December 2019
Date of orders: 15 November 2019
Decision date: 15 November 2019
Jurisdiction: Common Law
Before: Campbell J
Decision:
(1) Judgment for the plaintiff against the defendant in the sum of $382,565.25 in respect of interest;
(2) The defendant to pay the plaintiff’s costs of the proceedings

Catchwords: CIVIL PROCEDURE – Statutory indemnity – claim for interest – costs - Workers Compensation Act – whether s 100 Civil Procedure Act permits judgment for interest alone – whether Act requires principal judgment which may “include” interest
Legislation Cited: Civil Procedure Act 2005 (NSW)
District Court Act 1973 (NSW)
Uniform Civil Procedure Rules 2005 (NSW), rr 6.2(8), 6.12
Workers Compensation Act 1987 (NSW) 151Z(d);
Cases Cited: Advertising Marketing Group Pty Ltd v Roads and Traffic Authority of NSW (unreported, Supreme court of New South Wales 31 March 2008)
El-Mir & 1 Or v Risk [2005] NSWSCA 260
Grima v RFI (Aust.) Pty Ltd [2014] NSWSC 14
Howard Rotavator Pty Ltd v Wilson (1987) 8 NSWLR 498
Kwanchi Pty Ltd v Kocisis (1986) 40 NSWLR 270
McDermitt v Black (1940) 63 CLR 161; [1940] HCA 4
Nine Network Australia Pty Ltd v Birketu Pty Ltd [2016] NSWSC 694.
State of New South Wales (Government Cleaning Services) v Cooper (2000) 49 NSWLR 221; [2000] NSWCA 148
Stroud v O’Connor [2016] NSWSC 629
Category: Principal judgment
Parties: Workers’ Compensation Nominal Insurer (Plaintiff)
Allmen Engineering Projects Pty Ltd (Defendant)
Representation:
Counsel:
Mr M J Walsh SC for the Plaintiff
Mr R Perla for the Defendant
Solicitors:
Turks Legal (Plaintiff)
Moray and Agnew (Defendant)

File Number(s): 2018/00087753

Judgment

These proceedings were commenced by Statement of Claim filed on 19 March 2018 claiming the statutory indemnity created by s 151Z(1)(d) Workers Compensation Act 1987 (NSW) (“WCA”). The amount claimed was $3,422,909.04, being the total of the payments made to, for or on behalf of Mr Taek Gyu Kim (“the worker”) under the provisions of WCA. The plaintiff, Workers Compensation Nominal Insurer (“WCNI”) claims interest under s 100 Civil Procedure Act 2005 (NSW) (“CPA”) and costs in addition to the claimed indemnity
The worker received catastrophic injuries on 10 March 2014 in the course of his employment as a boilermaker. His services had been lent by his direct employer to the defendant, Allmen Engineering Projects Pty Ltd (Allmen), for him to work at Allmen’s premises at St Marys.
In circumstances which are the subject of an agreed Statement of Facts (Exhibit A) set out below (at [11]), the plaintiff agreed with the worker’s tutor to accept the reduced sum of $2,965,562.76 in full satisfaction of its statutory rights to recover the total amount of compensation paid.
It is an agreed fact (agreed fact 20, [11] below) that on 14 June 2018, Allmen paid that reduced sum of $2,965,562.76 to the WCNI “on behalf of Mr Kim”.

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: [2019] NSWSC 1582
Decision Date: 15 November 2019

CaseChat Overview and Summary

In the matter of Workers Compensation Nominal Insurer v Allmen Engineering Projects Pty Ltd, the dispute centred around the claim for statutory indemnity, interest, and costs. The case was heard in the Supreme Court of New South Wales. The Workers Compensation Nominal Insurer sought indemnity for statutory interest paid to a worker, along with costs associated with the statutory indemnity claim. Allmen Engineering Projects Pty Ltd contested the claim, arguing that the interest was not payable as a separate judgment and that the statutory indemnity could not be recovered in the absence of a principal judgment.

The central legal issue before the court was whether section 100 of the Civil Procedure Act 2005 (NSW) permitted a judgment for interest alone, or whether the Workers Compensation Act 1987 (NSW) required a principal judgment that could "include" interest. The court had to interpret the statutory provisions and determine the correct approach to awarding interest and costs in workers compensation claims. The Workers Compensation Nominal Insurer contended that the interest was a separate debt and thus recoverable independently. Conversely, Allmen Engineering Projects Pty Ltd argued that the interest could not be recovered without a principal judgment.

The court found that the Workers Compensation Act 1987 (NSW) did not require a principal judgment to include interest, and section 100 of the Civil Procedure Act 2005 (NSW) did permit a judgment for interest alone. The court ruled that the interest paid to the worker was a distinct liability, recoverable independently of any principal judgment. The Workers Compensation Nominal Insurer was entitled to recover the statutory interest, and the costs associated with the claim. The court's decision clarified the legal framework for recovering interest in workers compensation cases and provided guidance on the interpretation of relevant statutory provisions. The final orders of the court granted the Workers Compensation Nominal Insurer's claim for statutory interest and associated costs against Allmen Engineering Projects Pty Ltd.

Orders