Jurd v Grain Corp [2002] NSWCC 32

Compensation Court of New South Wales

CITATION : Jurd v Grain Corp [2002] NSWCC 32 PARTIES : David D Jurd Grain Corp Operations Limited MATTER NUMBER(S) : 32641 of 1998 JUDGMENT OF: Geraghty J CATCHWORDS: :- interest costs LEGISLATION CITED: CASES CITED: DATES OF HEARING: 05/07/2002 EX TEMPORE JUDGMENT DATE : 07/05/2002

FOR APPLICANT: Mr P O'Rourke instructed by Gillis Delaney Brown LEGAL REPRESENTATIVES: FOR RESPONDENT: Mr P Sweeney instructed by Goldbergs Lawyers

JUDGMENT: 1. By notice of motion David Jurd seeks that Grain Corp Operations Limited pay interest on his costs and disbursements from the date on which I made an order in his favour, 30 October 2000. 2. The notice of motion is supported by an affidavit of Naomi Frank (sworn on 3 June 2002) which, in general, provides evidence of letters and telephone calls to support negotiations between the solicitors for the respondent as to the payment of costs. The applicant's assessment of costs and disbursements was forwarded to the respondent on 21 December 2000. There followed some discussion about this assessment, and a subsequent assessment was forwarded on 19 September 2001, some ten months later. There were minor variations in the assessments. These are annexed to the affidavit of Michael Charles Moore sworn on 4 July 2002. The final amount of the two assessments are similar, the first being $28,805.10, and the second, $28,126.65, though the minor difference in the total does not necessarily reflect the variation in the items and their costing. 3. On 3 October 2001 the applicant's solicitors received a letter from the respondent's solicitors advising them that they would recommend payment of the costs and disbursements in accordance with the second assessment of 19 September 2001, and advising that they would seek instructions on the basis of their recommendation. Instructions were obviously obtained because on 29 October 2001 the respondent's solicitors forwarded a cheque in the sum of the second assessment. 4. The provisions of s 110 of the Workplace Injury Management Act 1998 provide for interest to be paid on an order for payment of costs. The general principle (as set out in ss 1) is qualified in sub-cl 3. The general principle of course is that normally a order for payment of costs includes an order for interest to be paid on such costs, and I was referred to the judgment of Meagher JA in Dykdynski v BHP Titanium Minerals Pty Limited 50 NSWLR 710. However this general principle is somewhat modified in s 110 s (3) which provides: Despite sub-section (1) and (2), where: (a) ............ (b) The amount of costs assessed is paid in full within 21 days after that amount is assessed, interest is not payable on the amounts so paid, unless the Commission otherwise orders. 5. Mr Sweeney of counsel, acting on behalf of the respondent, submitted that no agreement had been reached as to costs (and therefore no assessment was made) until 29 October 2001, when the cheque was forwarded. Discussions had taken place but instructions had not been received. Mr O'Rourke, counsel for the applicant, on the other hand, submitted that a letter had been sent on 3 October 2001 and that had amounted to an assessment or an agreement. 6. Costs were not paid until 29 October 2001, that is, outside the 21 days referred to in s 110 ss (3), and therefore, as submitted by Mr O'Rourke, the sub-section does not apply, and the Court should return to the general principle as set out in s 110 (1): Unless the Commission orders in any particular case that interest be not payable, interest is payable on so much of the amount of any sum ordered to be paid by the Commission as is from time to time unpaid. 7. According to Mr O'Rourke, since the full amount of $28,126.65 was in principle ordered to be paid on 30 October 2000, but was not paid until 29 October 2001, then according to the principles set out by Meagher JA in Dykdynski, interest should flow on the amount agreed upon from the date of the order, 30 October 2000. 8. Dealing with this matter first, it seems to me that the parties must come to an agreement about payment, or costs should be assessed by an assessor. In this case, the parties tried to come to an agreement and did in fact arrive at an agreement, though, as far as I can determine (applying the general principles of contract law), they did not come to an agreement until 29 October 2001. It was all very well for the respondent's solicitors to recommend an amount, but they needed to seek instructions from their client because it was the client who would agree and who would be bound to pay. The acceptance was not communicated to the other party until the cheque was received. It seems to me, on this analysis, that the submission of Mr O'Rourke as to the failure to pay the 21 days set out in s 110 (3), does not hold water. 9. However, there is no doubt, from the terms of s 110, that the Court has a wide discretions. There is a discretion set out in sub-sect (1) which allows the Court to order that interest should not be payable in certain circumstances, though the general principle in this particular sub-section is that normally interest would be payable, and payable from the date of the order, even though on the date of the order no assessment or agreement as to the amount had been made. There was no sum certain to be paid. Meagher JA dealt with that matter in some detail in his judgment and quoted the principle Id certum est quod certum reddi potest (that thing is certain which can be rendered certain). There is a further discretion in ss (3) (b), unless the Commission otherwise orders. 10. Mr Sweeney submitted that I should exercise my discretion in favour of the respondent and not order an interest payment because negotiations were still taking place. An amended account was forwarded on 19 September 2001. It varied the original bill. Instructions from the client were sought and payment was made shortly after 19 September, namely within about six weeks. Mr O'Rourke on the other hand, submitted that the general principle as to interest is that interest should normally flow because the respondent has had the benefit of retaining the funds for an inordinate amount of time, in this case over a year, whereas the applicant has either been kept out of his fees, or needed to make payment out of his own funds. Exhibit A was tendered in support of this submission and shows payment of various doctors' bills and their fees in May 2000, in August 2000. 11. I am minded to exercise my discretion in accordance with s 110 (3), but not so as to order interest from a date of my order. It seems to me that I have the power to exercise my discretion in this way. I order the respondent to pay interest on $28,126.65 from 1 May 2001 to 29 October 2001. 12. I order the respondent to pay the applicant's costs on the notice of motion. 13. I certify counsel fees on the notice of motion, at the prevailing Supreme Court rate. Mr P O'Rourke instructed by Gillis Delaney Brown appeared for the applicant. Mr Sweeney instructed by Goldbergs Lawyers appeared for the respondent.