Ryan v Workers Compensation Nominal Insurer (No 2) [2020] NSWCA 129

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Ryan v Workers Compensation Nominal Insurer (No 2) [2020] NSWCA 129 Hearing dates: On the papers Decision date: 03 July 2020 Before: Leeming JA; Payne JA; White JA. Decision: 1. Vary order 2 made on 11 March 2020 by replacing "costs" with the words "(i) the defendant to pay the plaintiff's costs on the ordinary basis up to 25 July 2018, and (ii) the plaintiff to pay the defendant's costs on an indemnity basis from 26 July 2018", such that order 2 as varied will read: "2. Set aside the orders made on 13 August 2019, and in lieu thereof, order that the proceedings be dismissed, with (i) the defendant to pay the plaintiff's costs on the ordinary basis up to 25 July 2018, and (ii) the plaintiff to pay the defendant's costs on an indemnity basis from 26 July 2018." 2. The Workers Compensation Nominal Insurer to pay Mr Ryan's costs of the notice of motion dated 25 March 2020. Catchwords: COSTS – offer of compromise – small offer made by defendant shortly after recovery proceedings commenced in District Court pursuant to Workers Compensation Act 1987 (NSW) s 151Z(1)(d) – motor vehicle accident many years earlier – ample time to investigate – defendant ultimately successful in Court of Appeal – whether offer of compromise amounted to genuine compromise – significance of important evidence emerging later in litigation Legislation Cited: Uniform Civil Procedure Rules 2005 (NSW), r 42.15 Workers Compensation Act 1987 (NSW), s 151Z Cases Cited: Croghan v Blacktown City Council (2019) 100 NSWLR 757; [2019] NSWCA 248 Fabre v Lui [2015] NSWCA 312 Herning v GWS Machinery Pty Ltd [No 2] [2005] NSWCA 375 Morgan v Johnson (1998) 44 NSWLR 578 Nominal Defendant v Hawkins [2011] NSWCA 93 Regency Media Pty Ltd v AAV Australia Pty Ltd [2009] NSWCA 368 Vale v Eggins (No 2) [2007] NSWCA 12 Category: Costs Parties: Stephen Patrick Ryan (Applicant on motion for special costs order) Workers Compensation Nominal Insurer (Respondent to motion for special costs order) Representation: Counsel: K Rewell SC (Applicant) W Fitzsimmons SC (Respondent)