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

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.
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

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.
Are the current proceedings a…

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: [2022] NSWDC 105
Decision Date: 11 April 2022

CaseChat Overview and Summary

Workers Compensation Nominal Insurer sought recovery of a judgment debt from Jamal. The insurer sought costs and interest as part of the recovery process. The case was heard in the Federal Circuit and Family Court of Australia. The central legal issue was the calculation of interest on the judgment debt and the appropriate basis for awarding costs.

The court addressed the calculation of interest, noting that it should be paid on the judgment sum from the date of the original judgment until the date of the current judgment, and continue to accrue at a specified rate. The court also considered the appropriate basis for awarding costs. It found that the ordinary basis should apply until a certain date, and thereafter, the indemnity basis should apply. This decision was based on the conduct of the parties and the nature of the proceedings.

The court ordered that the defendant pay interest on the judgment sum from the date of the original judgment, with a specified rate of interest to continue accruing. It also directed that the plaintiff’s costs be paid on the ordinary basis up until a certain date, and on the indemnity basis thereafter. The orders provide clarity on the interest and costs to be paid in this matter.

Orders

Orders of the court

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.

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:	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