Milne v SDN Children’s Services and BRC Recruitment Pty Ltd (No. 3)

Cases Cited: Badra v Value Constructions Pty Ltd & Ors (No 2) [2023] NSWSC 1655
Milne v SDN Children’s Services and BRC Recruitment Pty Ltd (No. 2) [2025] NSWSC 310
Value Constructions Pty Ltd v Badra [2024] NSWCA 181

Category: Consequential orders

Parties: Cheryl Anne Milne (Plaintiff)
SDN Children’s Services (First Defendant)
BRC Recruitment Pty Ltd (Second Defendant)

Representation: Counsel:
C.T. Barry KC with T Meakes (Plaintiff)
N Polin SC (First Defendant)
S Flett (Second Defendant)
Solicitors:
Gorman Jones Lawyers (Plaintiff)
McCabes Lawyers (First Defendant)
Hall and Wilcox Lawyers (Second Defendant)

File Number(s): 2018/382709

Publication restriction: Nil

JUDGMENT

1. On 4 April 2025, the Court published Milne v SDN Children’s Services and BRC Recruitment Pty Ltd (No. 2) [2025] NSWSC 310 (“Milne No 2”) as to various matters concerning damages, interest, cross-claims and costs and the following direction was made:

“130. The plaintiff shall bring in Short Minutes of Order reflecting this judgment within 14 days of the publication thereof.”

2. On 14 April 2025, [1] the Court received a communication from the second defendant enclosing submissions which were as follows (the “April 2025 submission”):

“1. The Second Defendant submits that at paragraphs 17 and 18 of its written Submissions of the 6th of February 2025 were incorrect and contrary to law and have thereby led His Honour into error (by dismissing the cross claims of the First and Second Defendant) (see Value Constructions Pty Limited and Badra [2024] NSWCA 181 from paragraph 69 to 77.

2. At this stage the Second Defendant submits that His Honour has only made a finding in respect of the cross claims at paragraphs 108 and 127(11) of his judgement of the 4th of April 2025 and has now requested that the parties make further calculations so that he was in a position to make final orders.

3. The Second Defendant requests that before final orders are made His Honour delete the finding at 127(11) and reinstate the cross claims to enable the Consent Orders to be consistent with the law.

4. I have circulated this further submission to the Plaintiff's counsel and the First Defendant's counsel in order that they may make any further relevant submission thought necessary.”

3. On 29 April 2025, Consent Orders were received from the parties, which proceeded on the assumption that “the second defendant’s further submissions seeking the reinstatement of the cross claims are accepted” by the Court.

4. The proposed Consent Orders were:

“1. Judgment for the Plaintiff against the First Defendant in the amount of $702,710.31.

2. Judgment for the Plaintiff against the Second Defendant in the amount of $497,614.60.

3. Judgment for the First Defendant against the Second Defendant on the First Defendant’s Cross Claim in the amount of $149,284.38.

4. Judgment for the Second Defendant against the First Defendant on the Second Defendant’s Cross Claim in the amount of $348,330.22.

5. The Court notes and the parties have agreed that the Second Defendant is entitled to credit in the amount of $278,951.01 under section 151Z of the Workers Compensation Act 1987 and any further payments made to for or on behalf of the Plaintiff, excluding the “Fox v Wood” component, until any Appeal is determined or finalised.

6. The First Defendant is to pay the Plaintiff's costs.

7. The Second Defendant is to pay the Plaintiff’s regulated costs as agreed or assessed.

8. No order as to costs of the cross claims.”

5. The parties assumption, as to the Court’s acceptance of the April 2025 submission of the second defendant, is well foundered. What appears below are short reasons for the Court adopting that position.

6. The starting point is the relevant aspects of the respective cross-claims. The second defendant’s cross-claim, filed on 8 March 2023, sought, inter alia, the following relief:

“The cross-claimant claims:

1 Indemnity and/or contribution from the cross defendant on account of the cross defendant’s negligence and pursuant to section 5 of the Law Reform (Miscellaneous Provisions) Act 1946.

2 Indemnity from the cross defendant in respect of the workers compensation it has paid to, for or on behalf of the Plaintiff pursuant to the provisions of section 151Z(1)(d) of the Workers Compensation Act 1987…”

7. The first defendant’s amended second cross-claim, filed on 15 February 2024, sought, inter alia, the following relief:

“If the Cross-claimant is held liable to the plaintiff for his injury, loss and damage (liability for which is expressly denied) then the Cross-claimant claims from the Cross-defendant:

1. A complete indemnity or alternatively a contribution in relation to the plaintiff’s claim pursuant to section 5 of the Law Reform (Miscellaneous Provisions) Act 1946…”

8. In Milne No 2, the Court adopted the submission advanced by the second defendant on the disposal of the cross-claims. Paragraphs 106 to 108 of Milne No 2 were as follows:

“106. The second defendant made a submission that cross claims should be dismissed with no orders as to costs.

107. The basis for that submission was as follows:

“17. Finally, as for the cross-claims, in light of his Honour’s findings, these can duly be disposed of. With regard to the First Defendant’s cross-claim, this has no work to do in light of the Court’s position on apportionment as the First Defendant has been ordered to pay significant damages which have been discounted by way of verdict (whether it be 70% or 75%). Similarly, with regard to the Second Defendant’s cross-claim, the relief sought has already been dealt with by way of s.151A of the Workers Compensation Act 1987 (NSW), as given the Plaintiff’s verdict against the Second Defendant, the amount of weekly payments of compensation already paid in respect of the injury concerned (which amounts to $323,711.97, see Plaintiff’s Submissions at [27]) is to be deducted from the damages award. Further, as there has been no finding of contributory negligence (see [585(9)]), the Court need not undertake any discounting exercise.

18. As such, the cross-claims ought to be dismissed with no order as to costs.”

108. I agree with that submission and will make orders accordingly.”

9. In the result, the Court's conclusion, regarding the cross-claims, was as follows (Milne No 2, [127(11)]):

“127. In the result, I confirm the following findings made by the Court in this judgment:

…

(11) The cross-claims shall be dismissed with no order as to costs.”

10. The Court’s acceptance of the second defendant’s submission to dismiss the first defendant’s cross-claim was evidently based upon the Court having already made an apportionment of damages, namely 70% liability of the first defendant and 30% liability of the second defendant. The first defendant’s cross-claim sought a “complete indemnity” or a “contribution” pursuant to s 5 of the Law Reform (Miscellaneous Provisions) Act 1946 (NSW) to the plaintiff’s claim. Thus, the second defendant’s submission that the cross-claim “had no work to do” was attractive.

11. Nonetheless, the second defendant made a submission contradicting its earlier contention upon a proposition of law rather than merit. It was contended that it was necessary to reinstate the first defendant’s cross-claim to allow the first defendant to succeed on part of its cross-claim against the second defendant.

12. In support of the second defendant’s proposition that “paragraphs 17 and 18 of its written Submissions of the 6th of February 2025 were incorrect and contrary to law and have thereby led His Honour into error (by dismissing the cross claims of the First and Second Defendant)”, reliance was placed upon [69] – [76] of Value Constructions Pty Ltd v Badra [2024] NSWCA 181 (“Value Constructions CA”).

13. Notwithstanding that the basis for the second defendant’s reliance upon Value Constructions CA is unclear, the judgment does lend weight to the further submission by the second defendant. That is because Value Constructions CA stands for the proposition that where a third-party tortfeasor [2] and an employer are held liable for a plaintiff’s injury and there is a ruling on apportionment between the defendants, the third-party tortfeasor is entitled to succeed on its cross-claim against the employer (Value Constructions CA at [70] - [75]).

14. When the following consideration is brought into focus, there is a proper basis demonstrated for the Court to depart from its earlier ruling as a matter of law. The apportionment of damages between third-party tortfeasors and employers cannot simply be effected by a split of the overall damages awarded to the plaintiff. That is because the limitations imposed on the award of damages against employers under the Workers Compensation Act are greater than the damages that can be awarded against third-party tortfeasors under the Civil Liability Act 2002 (NSW): Value Constructions CA at [73]; Badra v Value Constructions Pty Ltd & Ors (No 2) [2023] NSWSC 1655 at [7]. The success of the third-party tortfeasor on its cross-claim facilitates the ruling of apportionment by the Court.

15. I propose to adopt a consistent approach with respect to reinstating the second defendant’s cross-claim, particularly in the light of the consent position of the parties.

16. The second defendant, in its April 2025 submission, requested that the Court amend Milne No 2 and delete par 127(11). That approach does not seem to have been reflected in the Consent Orders and otherwise appears unnecessary, if not inappropriate (the earlier judgment being a record of the Court’s decision-making process). This judgment will have the effect of amending the findings in Milne No 2 regarding the cross-claims and the orders made below vary the orders made in Milne No 2 concerning the cross-claim.

ORDERS

17. In the result, the following Consent orders are made by the Court:

18. Judgment for the Plaintiff against the First Defendant in the amount of $702,710.31.

19. Judgment for the Plaintiff against the Second Defendant in the amount of $497,614.60.

20. Judgment for the First Defendant against the Second Defendant on the First Defendant’s Cross Claim in the amount of $149,284.38.

21. Judgment for the Second Defendant against the First Defendant on the Second Defendant’s Cross Claim in the amount of $348,330.22.

22. The Court notes and the parties have agreed that the Second Defendant is entitled to credit in the amount of $278,951.01 under section 151Z of the Workers Compensation Act 1987 and any further payments made to for or on behalf of the Plaintiff, excluding the “Fox v Wood” component, until any Appeal is determined or finalised.

23. The First Defendant is to pay the Plaintiff's costs.

24. The Second Defendant is to pay the Plaintiff’s regulated costs as agreed or assessed.

25. No order as to costs of the cross claims.

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Endnotes

I note that the submissions were received by the Court on 14 April 2025 but they were dated 9 April 2025.

I note that the occupier in Value Constructions CA, and the occupier in the present matter, are third-party tortfeasors.