Australian Winch & Haulage Pty Ltd v Collins & Anor

Judgment 1The appellant (AWH) appeals from a judgment given by Harrison J on 1 November 2012 in proceedings in which the first respondent (Mr Collins) claimed damages from his employer, the second respondent (SPC), and from AWH in respect of serious injuries which he sustained whilst at work. AWH was sued as the supplier of a shackle which was alleged to have failed, resulting in the accident causing the injuries. Mr Collins succeeded in his claims against SPC and AWH and the primary judge apportioned liability between them as to 65 per cent to SPC and as to 35 per cent to AWH. 2AWH's appeal from that judgment raises issues as to its liability to Mr Collins, the apportionment of liability as between it and SPC and as to whether it should have been ordered to pay a part of Mr Collins' costs on an indemnity basis. That appeal has been fixed for hearing on 11 and 12 July 2013 on the basis that the hearing of the appeal will take more than one day and that this would be so irrespective of when the application which is the subject of this judgment is heard. 3SPC, by notice of motion, seeks an order extending the time for the filing of a cross-appeal. That application is not opposed by AWH. It is opposed by Mr Collins. The proposed cross-appeal raises issues as to SPC's liability to Mr Collins, as to whether Mr Collins was entitled to damages for the cost of funds management, as to whether he was entitled to recover interest on damages in respect of past losses and as to whether he was entitled to an order that SPC pay his costs of the proceedings. Each of those issues arises between SPC and Mr Collins. SPC also seeks to challenge the apportionment of liability as between it and AWH. 4The present controversy between SPC and Mr Collins is a narrow one. It is whether SPC's application to extend the time for filing the cross-appeal should be fixed for hearing and determined before the appeal or whether it should be fixed for hearing concurrently with the hearing of the appeal. If that application is heard separately it is estimated to take at least two hours and the parties ask that it be fixed for hearing at a time convenient to counsel briefed in the appeal. If the application is heard concurrently with the appeal directions would have to be made at this stage for the preparation of draft written submissions on each of the issues sought to be raised by the proposed cross-appeal. SPC and AWH do not oppose a concurrent hearing of the application. Mr Collins does oppose it. 5The principal, indeed only, basis on which Mr Collins opposes a concurrent hearing of the application and the appeal is that he may incur greater legal costs in the event that the application is unsuccessful than would be the case if it is heard separately. He says that will involve prejudice to him because those additional or indeed any legal costs incurred by him may not be recoverable from SPC. He accepts that he would not incur greater legal costs or be exposed to that prejudice if the application is heard concurrently with the appeal and is successful. In that event it is likely that he would incur less legal costs than if the application was heard separately. 6This prejudice is said to follow because Mr Collins' claim against SPC is a claim for "work injury damages" and therefore subject to the provisions as to the awarding of costs in s 346 of the Workplace Injury Management and Workers Compensation Act 1998 and regulations 104 to 109 of the Workers Compensation Regulation 2010. The effect of those provisions, assuming that Mr Collins retains his existing judgment against SPC on appeal may be, and is argued by SPC to be, that Mr Collins and SPC must bear their own costs of the proceedings before the Court of Appeal. Reference is made to the decisions of this Court in Smith v Sydney West Area Health Service (No 2) [2009] NSWCA 62; Chubs Constructions Pty Ltd v Chamma [2009] NSWCA 98 and Pacific Steel Constructions Pty Ltd v Barahona (No2) [2010] NSWCA 9 as to the operation of those provisions. SPC does not contend that the effect of these provisions in those circumstances would be otherwise. Indeed, it says that by reason of those provisions it should not have been ordered to pay Mr Collins' costs of the proceedings before the primary judge. 7Thus, the position is that if SPC's application is heard separately, depending upon the outcome of that application, Mr Collins may incur more or less costs than would be the case if it was heard concurrently with the appeal; and any additional costs that may be incurred may not be recoverable from SPC on a party and party basis. No estimate is made of the amount of any additional costs which may be incurred or as to the costs likely to be saved. In the event of a concurrent hearing, those additional costs would include the cost of preparing draft written submissions which would be avoided if the application was heard separately and was unsuccessful. Nevertheless, it would remain necessary in a separate hearing of the application for the parties to address the prospects of success of the issues raised by the proposed cross-claim and therefore to formulate and explain the arguments to be put on appeal. A concurrent hearing would avoid the need for counsel to be briefed for two hearings with the attendant additional costs of preparation. This is more likely to result in some cost savings than if the application was heard separately. 8There are other considerations to which regard must be had: see ss 56, 57 and 58 of the Civil Procedure Act 2005. They include the timely and efficient conduct of the Court's business and in particular in the use of its judicial resources. In this instance those resources are most efficiently used by having a concurrent hearing which involves the Court only having to consider the questions in the cross-appeal and their relationship with the issues in the appeal on one occasion. That consideration, the fact that any additional costs to Mr Collins are not likely to be significant and the fact that the course proposed may result in cost savings if the application is successful, lead me to conclude that the dictates of justice are best served by fixing SPC's application for hearing concurrently with the hearing of AWH's appeal. Accordingly, I make the following orders: (1)The second respondent's notice of motion filed on 20 February 2013 for an order pursuant to UCPR Rule 51.17(2)(b)(ii) be heard concurrently with this appeal. (2)The parties to prepare a consent order containing directions for the filing and serving of written submissions in relation to the motion and the issues in the proposed cross-appeal and to lodge that order with the Registrar within seven days of the date of these orders. In the event that the parties cannot agree on those directions they should re-list the matter for directions before the Registrar within fourteen days of the date of these orders.