laintiff)
Workers Compensation Nominal Insurer (First Defendant)
Deicorp Constructions (NSW) Pty Ltd (Second Defendant)
Calcono Pty Ltd (Third Defendant)
Representation: Counsel:
B J Gross SC (Plaintiff)
N E Chen SC (First Defendant)
R Perla (Second and Third Defendants)
[2]
Solicitors:
Carters Law Firm (Plaintiff)
HWL Ebsworth Laywers (First Defendant)
Moray & Agnew Lawyers (Second and Third Defendants)
File Number(s): 2014/129949
Publication restriction: Nil
[3]
Introduction
I delivered my substantive judgment in this matter quite some time ago: see Kabic v Workers Compensation Nominal Insurer (No 3) [2017] NSWSC 1281.
With regard to the question of costs and other ancillary orders, I have since then had the benefit of extended written and oral submissions from all parties. That process was disrupted to some degree, due to a timetable for receipt of written submissions not being the subject of full compliance, for medical reasons (obviously, I make no criticism in that regard).
By way of answer to an email of my associate of 28 June 2018, all parties expressed their contentment with me now determining all remaining questions in Chambers, on the material that I presently have, and without any further submissions being made.
In light of the complex interplay of the competing positions of the four parties, they have helpfully provided me with a "table of disputes", which required amendment to a degree due to the disruption to which I have referred above.
The parties also very helpfully provided me with a document setting out draft orders, which showed clearly the areas that remain in dispute, and provided alternative orders to be made by me depending upon my determination.
In the event, only three areas of dispute require determination. I shall discuss them in ascending order of difficulty.
[4]
Costs of the successful second defendant?
The first dispute was about the costs of the second defendant ("Deicorp"), against whom the claim of the plaintiff failed completely.
The submission of the plaintiff was that he should pay the costs of Deicorp, but only up until 17 June 2016, on which date Deicorp commenced to be represented by the same solicitor and counsel as the third defendant ("Calcono"). Thereafter, it was said, Deicorp incurred no extra costs beyond those incurred by Calcono, against whom the plaintiff succeeded.
Turning to my determination, it may generally be accepted that the sharing of representation reduced the costs of Deicorp that were separate and beyond those of Calcono, at least to some degree. But the degree to which that occurred is a matter for agreement, or, as necessary, for a costs assessor. I do not accept that Deicorp should have no costs after the date of shared representation.
Accordingly, order 12 will be made in its primary form in the document with which I have been favoured: that the plaintiff must pay the second defendant's costs of these proceedings.
[5]
Costs of the plaintiff against the unsuccessful third defendant?
The second dispute was whether the plaintiff should have his costs against Calcono, bearing in mind that, on the one hand, judgment was entered in favour of the plaintiff against Calcono; but, on the other hand, the quantum of the judgment was far less than the claim that was pressed by the plaintiff at the end of the hearing.
The plaintiff submitted that costs should simply follow the event.
In sharp contrast, Calcono submitted that each of the plaintiff and Calcono should pay their own costs.
The former submission was made on the basis that the plaintiff did indeed succeed against Calcono on liability, and was also awarded significant damages.
The latter submission was made on the basis that the plaintiff claimed at the end of the hearing over two million dollars, but in the event, had a judgment for less than 500 thousand dollars.
Calcono also submitted that, as things turned out, the claim of the plaintiff against Calcono could have been litigated in the District Court. My attention was invited to rule 42.34 of the Uniform Civil Procedure Rules 2005 (NSW), for the proposition that, as the judgment was in an amount less than $500,000, the Court would not be satisfied that the commencement and continuation of proceedings in the Supreme Court, rather than the District Court, was warranted.
Turning to my determination, the submission of Calcono that the plaintiff failed to succeed in anything like the claim that was prosecuted has some force. The countervailing consideration is that Calcono staunchly denied liability, and failed on that central question.
It is also the case that a matter such as this involves evaluative judgments about many things, both by expert witnesses, and the trial judge as tribunal of fact. For that reason, the jurisdictional thresholds of different courts are of little significance.
Put simply, the plaintiff succeeded, and did so in a very significant sum, against Calcono. He should have his costs against the tortfeasor that inflicted injury upon him, by way of order 11 in its alternative form: that the third defendant must pay the plaintiff's costs of these proceedings.
[6]
Costs of the successful first defendant to be paid by the unsuccessful third defendant?
Turning to the third area of dispute, the submission of the plaintiff and of the successful first defendant ("Caringbah") was that the plaintiff is prima facie liable to pay the costs of Caringbah, but his costs in that regard should be borne by Calcono. It was said that the most convenient way to achieve that outcome would be simply to order that Calcono pay the costs of Caringbah. Calcono resisted that proposition.
The plaintiff and Caringbah submitted that it was reasonable for the plaintiff to sue Caringbah, who was, after all, his employer.
It was also said that the reasonableness of that action of the plaintiff is demonstrated by the fact that Deicorp and Calcono submitted, at the end of the hearing, that Caringbah was liable, and that there should be apportionment of any liability established.
Other forensic steps taken by Calcono were relied upon for the proposition that Calcono, in a practical sense, "implicated" Caringbah as being liable to the plaintiff.
In response, Calcono invited my attention to the chronology of the matter, and submitted that the plaintiff originally proceeded against only Caringbah and Deicorp, and it was in fact Caringbah who joined Calcono in the proceedings. The plaintiff thereafter joined Calcono as a defendant.
The point was also made that Calcono never filed a cross-claim against Caringbah.
Turning to my determination, although in the event I found that Caringbah was not liable to the plaintiff, it was not unreasonable for him to proceed against the employer who sent him to the building site at which he was injured.
And whilst it is true that Calcono did little, in a formal sense, to engage Caringbah in forensic battle, I consider that Calcono did, in a practical sense, engage against Caringbah to some degree, and submit that it was Caringbah and not Calcono that was liable to the plaintiff.
In the circumstances, I consider that Calcono should pay the costs of Caringbah for which the plaintiff would otherwise be liable. And there is no reason why that should not occur by way of a direct payment, in accordance with alternative order 7: that the third defendant must pay the first defendant's costs of these proceedings.
[7]
Conclusion
In accordance with the three determinations above, and the undisputed draft orders with which I was provided, I make the following orders:
(1) Judgment for the first defendant against the third defendant on the third cross claim filed 25 August 2014 pursuant to s 151Z(1)(d) of the Workers Compensation Act 1987 (NSW) in the amount of $452,395.18.
(2) In relation to the judgment entered in favour of the plaintiff on 16 March 2018 in the sum of $452,395.18 and the judgment entered in favour of the first defendant by Order 1, above, note:
(a) payment of the amount of $452,395.18 is to be made to the first defendant by the third defendant;
(b) payment of the above amount of $452,395.18 to the first defendant satisfies and discharges the plaintiff's obligation, pursuant to s151Z(1)(b) of the Workers Compensation Act 1987 (NSW), to repay workers compensation payments made to him by the first defendant in the agreed amount of $318,952.71;
(c) payment of the above amount of $452,395.18 to the first defendant, pursuant to s151Z(1)(e1) of the Workers Compensation Act 1987 (NSW), satisfies and discharges the third defendant's obligation to the plaintiff, pursuant to the judgment entered against it and in favour of the plaintiff on 16 March 2018.
(3) The third defendant must pay the first defendant interest on the judgment sum in order 1 above, in the amount of $117,441.68, pursuant to s 100 of the Civil Procedure Act 2005 (NSW), with such interest accruing at a daily rate of $53.34 and $14.79 respectively, in accordance with the schedule annexed and marked "A".
(4) The first cross claim filed 25 August 2014 is dismissed.
(5) The second cross claim filed 25 August 2014 is dismissed.
(6) The third cross claim filed 25 August 214 is dismissed, subject to order 1.
(7) The third defendant must pay the first defendant's costs of these proceedings.
(8) The third defendant must pay the first defendant's costs of the third cross claim.
(9) No order as to costs as between the first defendant and second defendant on the first cross claim with the intention that each party pay its own costs of the first cross claim.
(10) No order as to costs as between the first defendant and second defendant in respect of the second cross claim with the intention that each party pay its own costs of the second cross claim.
(11) The third defendant must pay the plaintiff's costs of these proceedings.
(12) The plaintiff must pay the second defendant's costs of these proceedings.
[8]
Annexure A - Interest Schedule- Kabic (106 KB, pdf)
[9]
DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.
Decision last updated: 11 July 2018