POLYCARPOU v AUSTRALIAN WIRE INDUSTRIES PTY LIMITED [NO 2] SUPREME COURT OF NEW SOUTH WALES — COURT OF APPEAL KirBy P, MEAGHER JA and HANDLEY JA 18 April 1995 [1995] NSWCA 373 PRACTICE & PROCEDURE — Court of Appeal — correction of orders — variation of orders affected by verdict for contributory negligence set aside by Court of Appeal — consequences for pre-injury interest and offer of compromise — held: (1) As the orders of the Court had not been formalised by entry, the Court could, and in the circumstances should, vary its earlier announced orders. Wentworth v Rogers [No 9] (1987) 8 NSWLR 388 (CA), 394; (2) Varied orders made. Kirby P. The history of the case is set out in the reasons which were published by the Court on 27 February 1995. See Polycarpou v Australian Wire Industries Pty Ltd, Court of Appeal (NSW), unreported; [1995] NSWJB 19. On that day I proposed eight orders which orders became the orders of the Court. The appellant, Mr Polycarpou, has brought the matter back before the Court in order to have corrected certain of the orders. The orders have never been formally entered. No formal problem therefore arises in respect of the correction of the orders. Wentworth v Rogers [No 9] (1987) 8 NSWLR 388 (CA) , 394. It has, I think, been demonstrated that certain of the orders were made upon assumptions which now require correction in order to carry forward the logic of the reasoning of the Court. I, therefore, propose that the orders be corrected. Four matters are in issue. The first concerns pre-judgment interest. The pre-judgment interest which was allowed by the primary judge conducting the trial with a jury (Smart J) was $111,754. However, as has now been made clear, that sum was calculated allowing for a deduction of 40 per cent being the 40 per cent for contributory negligence. That deduction followed the 40 per cent contributory negligence found by the jury. The principal point of the judgment of this Court is that that finding must be set aside. Accordingly, the deduction in the pre-judgment interest allowed to the appellant must also have that item removed. When that item is removed, the amount which it is agreed should be paid for pre-judgment interest, upon the premises of the calculation at first instance is $185,656. Accordingly, the appellant is entitled to have interest in that sum included in his judgment. I will propose that such interest be included in the final judgment. Secondly, the respondent is entitled to rely upon the defence provided by section 63(5) of the Workers" Compensation Act 1926. The amount which has been paid by the respondent under that Act is agreed at $20,383. Accordingly from the final judgment that amount must be deducted. The amount of the final judgment is, therefore, made up as follows: Jury verdict $321,606 Interest under section 94 prior to judgment $185,656 Total $507,262 2 UNREPORTED JUDGMENTS Less prior payments for workers" compensation $20,383 Judgment $486,879 Judgment should, therefore, be entered in that sum in favour of the appellant. Order 3 of the orders of this Court of 27 February 1995 should be amended accordingly. Two other issues remain. The first concerns the costs order at trial. Order 7 of the orders of the Court of 27 February 1995 provided that the costs order at trial should be confirmed. However, that cost order was, in turn, affected by the jury's verdict on the issue of contributory negligence. By reason of that verdict the total amount found by the jury in favour of the appellant was reduced below to a sum of $300,000 which had, prior to the second trial, been offered by the respondent to the appellant. This, therefore, had consequences for the costs payable by the respondent to the appellant after the date on which the offer of compromise was made. When, however, the jury verdict on the issue of contributory negligence is removed, the final judgment entered is greater than the offer of compromise. Accordingly, the appellant is entitled to have his full party and party costs of the trial. Those costs should not be reduced for any deficit against the offer of compromise. Order 7 should, therefore, be amended. It should be ordered by this Court that the respondent pay the appellant's costs of the trials. Finally a question arises as to post-judgment interest. There is a difference between the parties as to the proper order in this regard. It is alleged that agreements made, or understandings arrived at, whilst the second appeal was awaiting hearing in this Court are relevant to the calculation of post-judgment interest. It is possible that something said, either by the parties or by the Court in the provision of a stay pending the hearing and determination of the appeal to this Court could be relevant to the resolution of this difference. It is neither convenient nor appropriate for the Court today to resolve that difference. It may be hoped that further discussion between the parties will resolve the difference. If, however, that discussion does not the parties will have liberty to approach a Judge or Master of the Common Law Division of the Supreme Court for the purpose of resolving theorder for post-judgment interest which should be made appropriate to the circumstances of the case. The orders which I therefore propose are: 1. Amend order 3 of the orders of the Court dated 27 February 1995 to delete the figures $321,606 and to substitute the figures $486,879; 2. Delete order 7 as there provided and substitute the order that the respondent pay the appellant's costs of the trials; 3. Add to the orders — 9, Liberty to apply to a Judge or Master of the Common Law Division for further orders as may be appropriate in relation to an order for interest payable on the said judgment after 29 October 1992; and 4. Cost of today to be part of the costs of the appeal. Meagher JA. I agree. Handley JA. I agree. Kirby P. Such are the orders of the Court. 1. Amend order 3 of the orders of the Court dated 27 February 1995 to delete the figures $321,606 and to substitute the figures $486,879; URBOLYCARPOU v AUSTRALIAN WIRE INDUSTRIES PTY LIMITED [NO 2] (Kirby P) 3 2. Delete order 7 as there provided and substitute the order that the respondent pay the appellant's costs of the trials; 3. Add to the orders - 9, Liberty to apply to a Judge or Master of the Common Law Division for further orders as may be appropriate in 5 relation to an order for interest payable on the said judgment after 29 October 1992; and 4. Cost of today to be part of the costs of the appeal. Counsel for the claimant: G G Masterman QC 10 Solicitors for the claimant: Solicitor to the Legal Aid Commission of New South Wales Counsel for the opponent: J E Maconachie QC Solicitors for the opponent: Blake Dawson Waldron