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Before: Elkaim AJ

Decision: 1. Judgment for the plaintiff against the first defendant in the sum of $89,890.86.
2. No order as to costs between the plaintiff and the first defendant.
3. Pursuant to s 151D(2) of the Workers Compensation Act 1987 (NSW) leave is granted to the plaintiff to extend the time for commencing and maintaining his proceedings against the second defendant nunc pro tunc.
4. Judgment for the plaintiff against the second defendant in the sum of $228,694.82.
5. As between the plaintiff and the second defendant each party is to bear its own costs.
6. Judgment for the first defendant on its cross-claim against the second defendant in the sum of $16,897.43.
7. Judgment for the second defendant in its cross claim against the first defendant in the sum of $67,589.71.
8. Each of the first and second defendants are to bear their own costs of the respective cross-claims.

Catchwords: WORKERS COMPENSATION — damages for personal injury — Workers Compensation Act 1987 (NSW) ss 151A and 151Z — past medical expenses excluded from damages against third party tortfeasor as no loss suffered by plaintiff — whether damages should be adjusted in accordance with the formula from Synergy Scaffolding Services Pty Ltd v Alelaimat [2023] NSWCA 213 — whether employer tortfeasor able to recover from third party tortfeasor under s 151Z
WORKERS COMPENSATION — interest on damages against first defendant under Civil Liability Act 2002 (NSW) s 18 — whether plaintiff entitled to interest on damages against second defendant under Workers Compensation Act 1987 (NSW) s 151M — where plaintiff’s dishonesty prevented assessment of a reasonable offer
TORTS — contribution between joint tortfeasors — must relate to the “same damage”
COSTS — Uniform Civil Procedure Rules 2005 (NSW) r 42.34 — where plaintiff has obtained judgment less than $500,000

Legislation Cited: Civil Liability Act 2002 (NSW), s 18
Civil Procedure Act 2005 (NSW), s 140
Law Reform (Miscellaneous Provisions) Act 1946 (NSW), s 5
Uniform Civil Procedure Rules 2005 (NSW), r 42.34
Workers Compensation Act 1987 (NSW), ss 151A, 151D(2), 151M, 151Z

Cases Cited: Franco v Workers Compensation Nominal Insurer (No 3) [2021] NSWSC 503
McGoldrick v Dendrobium Coal Pty Ltd (No 2) [2022] NSWSC 1744
Southwest Helicopters Pty Ltd v Stephenson (2017) 98 NSWLR 1; [2017] NSWCA 312
Synergy Scaffolding Pty Ltd v Alelaimat [2023] NSWCA 213
Synergy Scaffolding Pty Ltd v Alelaimat (No 2) [2024] NSWCA 11
Tazleem v Certain Underwriters at Lloyds Listed in Annexure “A” [2026] NSWSC 124

Category: Consequential orders

Parties: Sheik Abdul Tazleem (Plaintiff)
Certain Underwriters at Lloyds listed in Annexure “A” (First Defendant; Cross Defendant in First Cross-Claim; Cross Plaintiff in Second Cross Claim)
Workers Compensation Nominal Insurer (Second Defendant; Cross Plaintiff in First Cross-Claim; Cross Defendant in Second Cross-Claim)

Representation: Counsel:
D Baran, D Kim (Plaintiff)
D Lloyd SC, V Bulut (First Defendant; Cross Defendant in First Cross-Claim; Cross Plaintiff in Second Cross Claim)
P Rickard (Second Defendant; Cross Plaintiff in First Cross-Claim; Cross Defendant in Second Cross-Claim)
Solicitors:
One Law (Plaintiff)
RGS Law (First Defendant; Cross Defendant in First Cross-Claim; Cross Plaintiff in Second Cross Claim)
Hall & Wilcox (Second Defendant; Cross Plaintiff in First Cross-Claim; Cross Defendant in Second Cross-Claim)

File Number(s): 2021/33748

Publication restriction: No

JUDGMENT

1. I gave my principal reasons in this matter on 26 February 2026 (Tazleem v Certain Underwriters at Lloyds Listed in Annexure “A” [2026] NSWSC 124). I did not enter formal orders because of complications arising from the Workers Compensation Act 1987 (NSW) (the WCA) and the need to hear submissions on costs. These topics were dealt with in a hearing on 11 May 2026.

2. There is a summary of my findings at [208] of the above reasons:

“In order to assist the parties in this endeavour I summarise my conclusions as follows:

(1) The plaintiff was employed by JPBC when the accident occurred.

(2) Both BTR and JPBC breached the duty of care respectively owed to the plaintiff.

(3) The damages awarded against the first defendant should be reduced by 15% to reflect my finding on contributory negligence.

(4) Again, in relation to contributory negligence the damages against the second defendant should be reduced by 10%.

(5) Damages, after deduction of $50,000 because of the policy excess, against the first defendant, are assessed in the sum of $236,319.74. This is subject to a Fox v Wood component.

(6) Damages against the second defendant are assessed in the sum of $228,694.82.

(7) The contributory negligence percentages have been incorporated in the damages figures set out above.

(8) For the purpose of the cross-claims, the apportionment of liability as between the defendants is assessed as 80% on the part of the first defendant and 20% on the part of the second defendant.”

3. I assessed damages against the first defendant in the sum of $236,319.74. The parties have agreed that $4,996.88 representing Fox v Wood damages should be added to past economic loss.

4. Starting the calculation I performed at [194] of the above reasons again, but with the addition of the Fox v Wood damages, the total is $341,843.63. Taking off 15% and then a further $50,000, the result is $240,567.09.

5. I assessed damages against the second defendant in the sum of $228,694.82.

6. I note that none of the parties suggested that any figures for past economic loss be updated from 26 February 2026 to the date of final orders being made. In fact, the parties’ submissions adopt the figures in the principal reasons.

7. I will start with the issues arising from the WCA.

1. Reduction of the damages awarded against the first defendant by the amount attributable to past medical expenses

8. The damages I assessed against the first defendant included an amount of $184,947.00 attributable to past medical expenses.

9. The whole of the past medical expenses of $184,947.00 had been paid by the workers compensation insurer. The first defendant submitted that this amount should be deducted from the damages awarded against it because the sum was not a loss suffered by the plaintiff.

10. There is no doubt that if the medical expenses were repayable by the plaintiff to the workers compensation insurer, then the expenses would be properly included in the verdict against the first defendant. But the effect of s 151A of the WCA is that the right of recovery is limited to weekly payments of compensation, such that the medical expenses are not repayable to the workers compensation insurer. Therefore, they do not represent a damage which has been suffered by the plaintiff. Accordingly, the sum assessed against the first defendant should be reduced by 85% of $184,947.00 (because of contributory negligence), bringing the amount down to $83,362.14.

11. The plaintiff, if I understood his submissions correctly, did not argue with the first defendant’s reasoning or the result. The only counterargument seemed to come from the second defendant arising from s 151Z of the WCA. I was referred to Synergy Scaffolding Pty Ltd v Alelaimat (No 2) [2024] NSWCA 11 at [35]:

“35. If, therefore, it could be clearly established that Mr Alelaimat will not be required to repay any or all of the compensation he has received, it would be appropriate, as Synergy Scaffolding proposes, to deduct from the award of damages an amount representing those payments. Mr Alelaimat does not contend to the contrary. The difficulty for Synergy Scaffolding is that it is not clearly established that Mr Alelaimat will not be obliged to repay those amounts. If, at a time in the future, Mr Alelaimat enforces judgment against Synergy Scaffolding (and not against WCNI) it will be open to WCNI to demand from Mr Alelaimat, pursuant to s 151Z(1)(b), repayment of the amounts of compensation paid. As I read s 151Z(1), WCNI’s entitlement to take that course is independent of and will survive the finalisation of these proceedings: note the observations of Barrett JA in Gallagher Bassett Services NSW Pty Ltd v Murdock (2013) 86 NSWLR 13; [2013] NSWCA 386 at [47]-[48]. It would not be right to reduce Mr Alelaimat’s damages award against Synergy Scaffolding against the mere possibility that he may not be required to repay the compensation to WCNI.”

12. The argument was that if there was a possibility that an obligation might arise for the plaintiff to repay the medical expenses (a contingency) then the medical expenses should stay in the verdict sum. There are two difficulties with the argument. Firstly, [35] is no more than a recitation of the submissions of one of the parties and secondly, the conclusion reached after consideration of the submissions, at [47], reaches a different result:

“47. Section 151Z(1) does not currently apply, either to require Mr Alelaimat to repay, under par (b), to WCNI the compensation he has received, or to require Synergy Scaffolding, under par (d), to indemnify WCNI for the compensation paid. That is not to say that circumstances will not, in the future, arise so that s 151Z(1) becomes applicable, in which case Mr Alelaimat will become liable to repay the compensation, or Synergy Scaffolding will be obliged to indemnify WCNI for the compensation (pars (b) and (d) cannot both operate – if they did, it would be the employer who would ‘doubly recover’).”

13. However, as stated, there is no obligation on the plaintiff to repay the medical expenses to the workers compensation insurer, and he did not personally incur any loss in the expenses being paid. Again, I agree with the reduction of the damages to be awarded against the first defendant to $83,362.14.

2. The further reduction of damages

14. The next claimed reduction arises from Synergy Scaffolding Pty Ltd v Alelaimat [2023] NSWCA 213, where a formula was prescribed to express the effect of s 151Z(2)(c) of the WCA. Both the plaintiff and the first defendant submitted that the formula should be applied in the same way, albeit to different figures. With respect I disagree with both of their approaches. The difficulty I have arises from the reduction of the assessed damages against the first defendant ($240, 567.09) down to $83,362.14.

15. ‘T’ in the Synergy formula (at [140]) is the “sum of damages which would be recoverable by the plaintiff worker from the third party tortfeasor but for the operation of s 151Z(2)”. This is $83,362.14.

16. ‘C’ is “the sum that the third party tortfeasor would be entitled to recover from the employer tortfeasor as contribution under s 5 of the 1946 Miscellaneous Provisions Act but for the operation of s 151Z(2)(d)”. This is 20% of $84,487.14, which is $16,897.43. The $84,487.14 is explained below at paras 50-51.

17. ‘X’ is “the amount of contribution that is actually recoverable under s 5 of the 1946 Miscellaneous Provisions Act once s 151Z(2)(d) is taken into account.” This is 20% of $228,694.82 which is $45,738.96.

18. Adding to the already unusual aspects of the assessment of damages in this case, the application of the Synergy formula, in particular C – X, will provide a negative result. I therefore cannot see how I can apply the Synergy formula and accordingly will treat ‘D’ as $83,362.14.

3. Whether the second defendant has a right of recovery from the first defendant

19. The defendants were agreed that s 151Z(1)(d) of the WCA did not give rise to any right of recovery because the second defendant was a joint tortfeasor. This is clear from Southwest Helicopters Pty Ltd v Stephenson (2017) 98 NSWLR 1; [2017] NSWCA 312 at [173]:

“173. The second reason why the trial judge considered that the constraint in s 151Z(1) did not apply was that an employer which was itself a tortfeasor was now able to recover compensation payments under s 151Z(1)(d) pursuant to s 151Z(2)(e). That conclusion was correct; however, the entitlement arose under, and only under the terms of the latter provision; it was wrong to treat the later provision as amending the earlier provision. Accordingly, if the Shire Council were to recover its compensation payments, on the assumption that it was a tortfeasor, it had to bring its claim within the terms of s 151Z(2)(e). The precise requirements of that provision were not addressed.”

20. Turning then to s 151Z(2)(e) of the WCA, it states:

(2) If, in respect of an injury to a worker for which compensation is payable under this Act—

(a) the worker takes or is entitled to take proceedings independently of this Act to recover damages from a person other than the worker’s employer, and

(b) the worker also takes or is entitled to take proceedings independently of this Act to recover damages from that employer,

the following provisions have effect—

…

(e) if the worker does not take proceedings against that employer or does not accept satisfaction of the judgment against that employer, subsection (1) applies as if the worker had not been entitled to recover damages from that employer, except that—

(i) if the compensation paid by that employer exceeds the amount of the contribution that could be recovered from that employer as a joint tortfeasor or otherwise—the indemnity referred to in subsection (1) (d) is for the amount of the excess only, and

(ii) if the compensation paid by that employer does not exceed the amount of that contribution—subsection (1) (d) does not apply and the employer has, to the extent of the compensation so paid, a defence to an action for such a contribution.

21. The plaintiff would not say from which defendant it would accept satisfaction but did say, in written submissions, that:

“Further, the worker has not decided not to accept satisfaction of the judgment against the Second Defendant.”

22. The plaintiff submitted that the question of from which defendant he might accept satisfaction was not a matter for me, but rather one that would arise upon enforcement of whatever orders I made. I think the plaintiff is correct in the submission, although it would be a quite extraordinary occurrence if the plaintiff were to accept satisfaction from the first defendant when the liability of the second defendant is for a much greater sum.

23. Again, I can see no basis on which I would leave the medical expenses as a constituent part of the judgment sum against the first defendant.

4. Whether the plaintiff is entitled to a reduction of 50% of repayable weekly workers compensation payments pursuant to s 151A of the WCA

24. In proposed orders, the plaintiff sought a notation that, pursuant to s 151A of the WCA, the plaintiff is entitled to a 50% reduction of the total amount of weekly workers compensation payments made to the plaintiff.

25. I am not sure of the basis upon which the reduction would be made. It does not arise from any part of s 151A, which states:

(1) If a person recovers damages in respect of an injury from the employer liable to pay compensation under this Act then (except to the extent that subsection (2), (3), (4) or (5) covers the case)—

(a) the person ceases to be entitled to any further compensation under this Act in respect of the injury concerned (including compensation claimed but not yet paid), and

(b) the amount of any weekly payments of compensation already paid in respect of the injury concerned is to be deducted from the damages (awarded or otherwise paid as a lump sum) and is to be paid to the person who paid the compensation, and

(c) the person ceases to be entitled to participate in any injury management program provided for under this Act or the 1998 Act.

…

26. If there is a discretion to reduce the amount of repayable weekly payments, I would not exercise that discretion in favour of plaintiff. I think it sufficient to adopt the words of counsel for the second defendant.

“Indeed, even if there were such a discretion, it should not be exercised in circumstances such as the present, where the Plaintiff has had the benefit of considerable weekly compensation payments made to him on his questionable representations as to his work capacity.”

5. Interest

27. The entitlement to interest is different for each defendant. The first defendant is subject to s 18 of the Civil Liability Act 2002 (NSW). Under this section the only damages that might attract interest are those for past economic loss (assessed at $58,017.75).

28. The first defendant did not oppose the awarding of interest. The first defendant calculated interest on past economic loss between 9 February 2018 and 16 March 2026 to be $12,643.72. This figure needs to be brought up to date which adds another 9 weeks. Applying an interest rate of 4.12% to $58,017.75 for 9 weeks, the result is $413.71. Total interest is therefore $13,057.43.

29. Because the economic loss was continuing over a period, I think it appropriate, and usual, for the interest to be halved. This results in an interest figure of $6,528.72.

30. The total judgment against the first defendant will be $89,890.86.

31. Interest against the second defendant is governed by s 151M of the WCA. This section provides for a “limited statutory entitlement” to interest and is dependant, in particular upon s 151M(4)(a)(iii) which states if:

the defendant has made an offer of settlement, the amount of all damages of any kind awarded by the court (without the addition of any interest) is more than 20% higher than the highest amount offered by the defendant and the highest amount is unreasonable having regard to the information available to the defendant when the offer was made.

32. The various offers of settlement made are described in an affidavit of Ms Geetha Sanderan dated 5 May 2026. Ms Sanderan is a solicitor in the firm acting for the plaintiff.

33. The chronology starts this way:

34. On 14 December 2023, the plaintiff served a prefiling statement on the second defendant. The statement did not specify an amount of damages.

35. On 20 February 2024, the Personal Injury Commission directed the second defendant to participate in a mediation on 20 March 2024. The second defendant declined to do so.

36. On 15 March 2024, the Personal Injury Commission noted that the second defendant denied liability.

37. On 26 September 2024, the mediation occurred. The defendants jointly offered a reduced workers compensation payback in the sum of $116,911.

38. Following an indication from the first defendant that it would not agree to unlimited jurisdiction in the District Court, the plaintiff filed a summons on 21 October 2024 seeking the transfer of the matter to this Court. The first defendant did not oppose the motion. There was no need for the second defendant to participate in the transfer process because the District Court already had unlimited jurisdiction in respect of work injury damages.

39. On 23 June 2025, the plaintiff made a ‘Calderbank’ offer of $500,000 clear of workers compensation payments but inclusive of costs. On 5 November 2025 the first defendant made a ‘Calderbank’ offer of $50,000 inclusive of costs. This was followed by an Offer of Compromise by the first defendant on 14 November 2025 offering to settle the matter on the basis of a verdict for the first defendant but with each party to pay its own costs.

40. On 19 January 2026, the plaintiff’s solicitors made an offer, over the telephone, to settle the case for $400,000 clear of workers compensation payments, but, if I understand the file note, inclusive of costs.

41. On 28 January 2026 the second defendant made an offer, on behalf of both defendants, to settle the matter by way of a judgment for the plaintiff against the second defendant in the sum of $116,913 (inclusive of the workers compensation payback), and a dismissal of the claim against the first defendant but with the first defendant making a contribution towards the plaintiff’s costs of $100,000.

42. Subject to interest, the agreed sum of the judgment against the second defendant is $228,694.82. This is more than 20% higher than the highest amount offered by the defendant. This would suggest the second defendant’s offer was unreasonable within s 151M(4)(a) of the WCA. However, s 151M(4)(b) states:

The highest amount offered by the defendant is not unreasonable if, when the offer was made, the defendant was not able to make a reasonable assessment of the plaintiff’s full entitlement to all damages of any kind.

39. The difficulty facing the plaintiff is that his entitlement to interest depends upon him having given the second defendant reliable information that would “enable a proper assessment of the plaintiff’s claim ...” The plaintiff had certainly provided a lot of information upon which the claim could be assessed. However, some of the information was blatantly misleading.

40. A prime example relates to the plaintiff having asserted that he was living in his sister’s double-storey residence at which domestic activity assessments were made by experts. The assessments included consideration of the use of stairs to and from the plaintiff’s upstairs bedroom.

41. In fact, the plaintiff, at the time the assessments were made, was living with his wife in a single-storey residence. In addition, the plaintiff’s assertions about his inability to work were directly contradicted by the surveillance that had become available at the end of 2025. The plaintiff was unquestionably dishonest. To quote his own counsel:

“Just by way of opening remarks, I'm not going to in any way suggest to your Honour that it's not open to your Honour to make adverse findings about the plaintiff's credit. We accept without reservation that there were a number of occasions when he was less than truthful, and where his evidence was unreliable. We also won't resist, and can't resist the fact that on a number of occasions he was a person who had not provided an accurate history to the doctors. There will be something we're going to say about the treating doctors, which fall into a different category. We're also not going to resist the fact that some of the answers he gave to the occupational therapists were somewhat bizarre to say the least.”

42. In McGoldrick v Dendrobium Coal Pty Ltd (No 2) [2022] NSWSC 1744, Garling J gave an overview of s 151M, at [9]:

“Section 151M(4) has the substantive effect that interest is not payable, and a Court cannot award a sum for interest on damages, unless there has been either an exchange of reasonable offers of settlement, or else there has been a reasonable opportunity for the parties to make offers of settlement, and in addition that the plaintiff is awarded damages in a sum which is 20% more than the highest sum offered by the defendant.”

43. Rothman J stated in Franco v Workers Compensation Nominal Insurer (No 3) [2021] NSWSC 503, at [45]:

“The defendant submits that the interest should be calculated at the rate prescribed for pre-judgment interest under s 100 of the Civil Procedure Act. The purpose of the provisions on interest, once the statutory preconditions have been satisfied, are plainly intended to encourage defendants to make reasonable offers. This is one of the purposes of both the 1987 Act and the 1998 Act more generally.”

44. The duplicitous nature of the evidence provided by the plaintiff, by the concealment of the truth about his domestic circumstances and work capacity, would have made the assessment of a reasonable offer almost impossible.

45. I do not think the second defendant was ever in a position to make an offer that was a reasonable reflection of the damages that the plaintiff, had he been honest, would have been entitled to receive.

46. Accordingly, I am not satisfied that the plaintiff has established an entitlement to interest against the second defendant.

6. The cross-claims

47. There are cross-claims going ‘both ways’ between the first and second defendants, the claims being pursuant to s 5(1)(c) of the Law Reform (Miscellaneous Provisions) Act 1946 (NSW).

48. The second defendant’s cross-claim also includes an indemnity from the first defendant arising from s 151Z(1)(d) of the WCA. This claim must fail because the second defendant is a joint tortfeasor, as discussed above.

49. I assessed the liability contribution between the defendants as 80% against the first defendant and 20% against the second defendant.

50. It is fundamental to s 5(1)(c) of the Law Reform (Miscellaneous Provisions) Act that the contribution between tortfeasors relates to the “same damage”. The same damage here is restricted to the damages against the first defendant for past economic loss ($58,017.75), future economic loss ($30,000.00), past superannuation ($6,382.00), and Fox v Wood damages ($4,996.88). The total is $99,396.63 which comes down to $84,487.14 after reduction of 15% for contributory negligence.

51. The figure of $84,487.14 does not take account of the $50,000.00 excess that applies to the first defendant’s liability but is the total of the “same damage” as between the defendants. This figure of $84,487.14 must be the figure to be utilised for the judgments in the cross-claims.

52. The 80/20 split on liability must therefore be applied to the $84,487.14.

53. It follows, applying the 80/20 split on liability to the same damage, that the first defendant is entitled to judgment for 20% of $84,487.14 ($16,897.43) against the second defendant and the second defendant is entitled to judgment against the first defendant for 80% of $84,487.14 ($67,589.71).

54. The defendants did not make specific submissions on the costs of the cross-claims. I think it appropriate that they each pay their own costs.

7. Costs for or against the plaintiff

55. The plaintiff and the second defendant agreed there should be no order as to costs between them.

56. The plaintiff said the first defendant should pay his costs on an ordinary basis. The first defendant said there should be no order as to costs or, alternatively, the plaintiff should pay the first defendant’s costs in respect of the assessment of damages with no order as to the remainder of costs.

57. These dates are important: the proceedings were commenced in the District Court on 5 February 2021. As of that date the jurisdictional limit of the District Court (in respect of the case against the first defendant) was $750,000. An increase of the limit to $1.25m on 16 December 2022 would not have been applicable to this case.

58. Surveillance of the plaintiff was recorded in November and December 2023 and also in May and September 2025. The surveillance became the cornerstone of the defendants’ attack on the plaintiff’s credit. Taken with the exposure of the plaintiff’s dishonesty in relation to his living arrangements, and in turn the distorted domestic assistance assessments, the result was to leave the plaintiff’s evidence so unreliable that it could not be accepted unless objectively corroborated.

59. The plaintiff filed a summons for transfer of the matter to the Supreme Court on 21 October 2024, pursuant to s 140 of the Civil Procedure Act 2005 (NSW). The first defendant did not oppose the summons. The matter was transferred on 16 December 2024.

60. The surveillance material was served on the plaintiff’s solicitors on 29 October 2025.

61. The judgment the plaintiff will receive against the first defendant is $89,890.86. This is well short of the $500,000 dictated by r 42.34 of the Uniform Civil Procedure Rules 2005 (NSW) (UCPR):

Costs order not to be made in proceedings in Supreme Court unless Court satisfied proceedings in appropriate court

(1) This rule applies if—

(a) in proceedings in the Supreme Court, other than defamation proceedings, a plaintiff has obtained a judgment against the defendant or, if more than one defendant, against all the defendants, in an amount of less than $500,000, and

(b) the plaintiff would, apart from this rule, be entitled to an order for costs against the defendant or defendants.

(2) If the proceedings could have been commenced in the District Court, an order for costs must not be made unless the Supreme Court is satisfied that the commencement and continuation of the proceedings in the Supreme Court was warranted.

62. The plaintiff submitted that on the information available in the District Court, including expert reports, there was a realistic possibility that damages would exceed $750,000. This would be the case even if there was a moderate degree of contributory negligence.

63. Further, submitted the plaintiff, when the request for extended jurisdiction was made to the first defendant in September 2024, the first defendant was in possession of the surveillance material. It followed, submitted the plaintiff, that the first defendant, in refusing to agree to the extended jurisdiction, knew that the matter was appropriately placed in the District Court.

64. These are the problems with the plaintiff’s submissions:

65. Even if the surveillance contradicted the plaintiff’s allegations about his capacity to work, he still maintained a large case on quantum. In a draft schedule of damages he claimed non-economic loss at 35% ($281,500), past gratuitous care of $136,300 and future care of $341,400. This is in addition to the economic loss claim, which when included, led to a total claim of $2,390,000. Notably the draft schedule was prepared after the surveillance had been served.

66. The plaintiff did not abandon his domestic assistance claim until the commencement of the hearing.

67. While there can be no criticism of the plaintiff’s lawyers for acting on instructions, both directly from the plaintiff and through the histories given to experts, the true position was known to the plaintiff. He was always aware that he was able to work, that he was working, and that he was misleading experts in particular in relation to domestic assistance.

68. If the plaintiff had given honest instructions to his lawyers, I have no doubt they would have recognised the claim as being one falling well within the District Court’s jurisdiction. However reasonably the lawyers may have acted, the fact always remains that it was the plaintiff who knew the true situation. This is not a case of a plaintiff exaggerating or ‘putting his best foot forward’. Rather the plaintiff deliberately misled his own lawyers, the medical experts for all of the parties and the occupational therapists who carried out the domestic assessments.

69. Against this background, I fail to see the relevance of the first defendant not consenting to extended jurisdiction or not opposing the transfer to the Supreme Court. At every possible level, consideration comes back to the plaintiff’s knowledge of his true condition and his dissemination of lies (as he admitted) to the experts and the assessors.

70. I cannot see any basis upon which I would exempt the plaintiff from the dictates of UCPR r 42.34, that in circumstances such as the present “an order for costs must not be made …”

71. I note the plaintiff did not submit, I think appropriately, that because the matter had been commenced in the District Court, UCPR r 42.34(2) would not apply.

72. In respect of the first defendant’s alternative claim for costs, again I would reject the claim as not falling within UCPR r 42.34. The rule says there should not be an order for costs. That is the approach I will take.

8. Liberty to restore

70. The second defendant asked for an order giving liberty to apply “if necessary in respect of its s 151Z(1)(d) Cross-Claim upon the Plaintiff’s determination as to which judgment he will accept (Synergy Scaffolding Pty Ltd v Alelaimat (No 2) [2024] NSWCA 11).”

71. As I have already said, that contribution is not available under s 151Z(1)(d) of the WCA. I decline to give the requested liberty.

Orders

72. I make the following orders:

73. Judgment for the plaintiff against the first defendant in the sum of $89,890.86.

74. No order as to costs between the plaintiff and the first defendant.

75. Pursuant to s 151D(2) of the Workers Compensation Act 1987 (NSW) leave is granted to the plaintiff to extend the time for commencing and maintaining his proceedings against the second defendant nunc pro tunc.

76. Judgment for the plaintiff against the second defendant in the sum of $228,694.82.

77. As between the plaintiff and the second defendant each party is to bear its own costs.

78. Judgment for the first defendant on its cross-claim against the second defendant in the sum of $16,897.43.

79. Judgment for the second defendant in its cross claim against the first defendant in the sum of $67,589.71.

80. Each of the first and second defendants are to bear their own costs of the respective cross-claims.

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