Workers Compensation Nominal Insurer v Jamal (No.2)

[2022] NSWDC 105

District Court

New South Wales

Medium Neutral Citation:

Workers Compensation Nominal Insurer v Jamal (No.2) [2022] NSWDC 105

Hearing dates:

On the papers

Date of orders:

11 April 2022

Decision date:

11 April 2022

Jurisdiction:

Civil

Before:

Gibson DCJ

Decision:

Order:

(1)   By way of variation of order 1 of my orders of 22 February 2022, order that the defendant pay interest on the judgment sum of $46,005.59 to the date of judgment, together with interest accruing at $29.04 per day thereafter on the whole of this sum or such adjusted rate as is appropriate in the event of part payment.

(2)   The defendant is to pay the plaintiff’s costs as follows:

(a)   Up to and including 11 August 2022, on the ordinary basis.

(b)   From 12 August 2021, on the indemnity basis.

Catchwords:

COSTS AND INTEREST – no issue of principle

Legislation Cited:

Civil Procedure Act 2005 (NSW) ss 100 and 101

Uniform Civil Procedure Rules 2005 (NSW) rr 6.12 and 42.14

Workers Compensation Act 1987 (NSW)

Cases Cited:

John Fairfax & Sons Ltd v Kelly (1987) 8 NSWLR 131

MBP (SA) v Gogic (1991) 171 CLR 657

Ruby v Marsh (1975) 132 CLR 642

Victoria Workcover Authority v Esso Australia Ltd (2001) 207 CLR 520

Workers Compensation Nominal Insurer v Jamal [2022] NSWDC 10

Category:

Costs

Parties:

Plaintiff:
Workers Compensation Nominal Insurer
Defendant:
Noora Jamal (formerly known as Mellissa Cody & Melissa Cody)

Representation:

Counsel:
Plaintiff:
Mr D C Price
Defendant:
Mr T Bateman

Solicitors:
Plaintiff:
Turks Legal
Defendant:
Bridges Lawyers

File Number(s):

2019/00019349

Judgment

The applications before the court

1. The plaintiff is an entity set up pursuant to provisions of the Workers Compensation Act 1987 (NSW) (“the Act”) to enable injured workers whose employers are uninsured to bring a claim against the Insurance Fund set up under that legislation. The defendant was the sole director of a company whose employees suffered a serious injury in the course of his employment. As that company was uninsured, the Insurance Fund made payments totalling $258,565.75 and then brought an application pursuant to s 145 of the Act for reimbursement from the defendant.

2. On 22 February 2022, I gave judgment for the plaintiff for $258,565.75, with liberty to apply in relation to interest and costs: Workers Compensation Nominal Insurer v Jamal [2022] NSWDC 10. A timetable for submissions was provided to enable the application to be dealt with “on the papers”. The plaintiff provided submissions on 1 March 2022, but the defendant failed to comply with the orders to provide submissions in reply, despite several extensions. The defendant was warned that if no submissions were received by 7 April 2022, the applications for interest and costs would be dealt with on the material provided by the plaintiff only. This is in fact what has occurred.

Interest

3. The plaintiff complied with rr 6.12(6) and r 6.12(7) of the Uniform Civil Procedure Rules 2005 (NSW) (“UCPR”) by expressly claiming interest in the statement of claim.

4. Are the current proceedings a claim for “the recovery of money”? This issue came for consideration in Victoria Workcover Authority v Esso Australia Ltd (2001) 207 CLR 520, where the appellant had made payments to an injured worker and sought an indemnity in respect of past payments of compensation. It was held that proceedings of the same kind as the current proceedings amounted to a claim for the recovery of money and accordingly interest could be claimed. The nature of the plaintiff’s claim was not for compensation for the worker’s injuries but for reimbursement of sums paid by the plaintiff as a result of the absence of insurance. I also note that legislative provisions restricting the award of interest in particular circumstances under the Act (such as, for example, s151M) do not apply.

5. The court’s discretion to award interest under s 100 of the Civil Procedure Act 2005 (NSW) is accordingly enlivened.

6. The discretion granted by s 100 is intended to permit a successful party to be properly compensated for the loss that it has suffered: MBP (SA) v Gogic (1991) 171 CLR 657 at 663 – 4. A plaintiff who obtains a monetary judgement is generally entitled to an award of interest (Ruby v Marsh (1975) 132 CLR 642 at 644) in a wide range of matters, including (after a prior practice of not awarding interest) defamation (John Fairfax & Sons Ltd v Kelly (1987) 8 NSWLR 131).

7. Interest is generally awarded unless there is no good cause to the contrary. In the absence of submissions from the defendant, I do not propose to speculate as to any basis for refusing interest. The remaining question is thus the rate of interest to be applied.

8. The plaintiff asks for interest on the full judgment sum from 1 June 2018 until the judgment sum is paid, at the rate prescribed by Practice Note DC (Civil) 15. That rate is, in general terms, a 4% per annum above the cash rate published by the Reserve Bank prior to the six-month periods 1 January to 30 June and 1 July to 31 December. The plaintiff calculates that sum at $46,005.59.

9. After judgment, pursuant to s 101 of the Civil Procedure Act, interest accrues at 4.10% per annum, which is $29.04 per day.

10. I accordingly award $46,005.59 pursuant to s 100 of the Civil Procedure Act, together with interest pursuant to s 101 on the total sum (or such parts thereof as are unpaid) at $29.04 per day.

Costs

11. The plaintiff made an offer of compromise in the following terms:

“1. This offer of compromise is made in accordance with rule 20.26 of the Uniform Civil Procedure Rules 2005.

2. The plaintiff offers to compromise the whole of this claim on the following terms:

a. Judgment for the plaintiff against the defendant in the amount of $200,000; and

b. No order as to costs.

3. This offer is open for acceptance until 5.00pm (AEDST) on 8 September 2021.”

12. The offer complied with the UCPR and constituted a genuine compromise in that a discount on the amount claimed of 22.65% was contained. In addition, no interest claim was made and the plaintiff was prepared not to claim for its costs. It was made at a time when the defendant had had the benefit of reading the plaintiff’s evidence. At the same time, it was made sufficiently early before the hearing for the offer to be able, if taken, to save substantial costs, including the hearing costs.

13. UCPR r 42.14 provides:

“42.14 Where offer not accepted and judgment no less favourable to plaintiff

(1) This rule applies if the offer is made by the plaintiff, but not accepted by the defendant, and the plaintiff obtains an order or judgment on the claim no less favourable to the plaintiff than the terms of the offer.

(2) Unless the court orders otherwise, the plaintiff is entitled to an order against the defendant for the plaintiff's costs in respect of the claim--

(a) assessed on the ordinary basis up to the time from which those costs are to be assessed on an indemnity basis under paragraph (b), and

(b) assessed on an indemnity basis--

(i) if the offer was made before the first day of the trial, as from the beginning of the day following the day on which the offer was made, and

(ii) if the offer was made on or after the first day of the trial, as from 11 am on the day following the day on which the offer was made.”

14. Again, I note that I have not received any submissions as to why the defendant should not pay the costs on an indemnity basis from the relevant date (12 August 2021).

15. This is a very clear case for the awarding of costs on an indemnity basis following the defendant’s failure to accept the plaintiff’s offer. I note that those costs will include the costs of this application.

Order:

1. By way of variation of order 1 of my orders of 22 February 2022, order that the defendant pay interest on the judgment sum of $46,005.59 to the date of judgment, together with interest accruing at $29.04 per day thereafter on the whole of this sum or such adjusted rate as is appropriate in the event of part payment.

2. The defendant is to pay the plaintiff’s costs as follows:

1. Up to and including 11 August 2022, on the ordinary basis.

2. From 12 August 2021, on the indemnity basis.

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Decision last updated: 13 April 2022