Allen v St George Bank [2003] NSWCC 2

Compensation Court of New South Wales

CITATION : Allen v St George Bank [2003] NSWCC 2 Colleen Thelma Allen PARTIES : v St George Bank MATTER NUMBER(S) : 43988 of 1999 JUDGMENT OF: Armitage J at 1 CATCHWORDS: Elements of Workers Compensation :- LEGISLATION CITED: CASES CITED: DATES OF HEARING: 18/02/03 EX TEMPORE JUDGMENT DATE : 02/18/2003

FOR APPLICANT:Mr D M Egan, solicitor appeared for the respondent/applicant. LEGAL REPRESENTATIVES: FOR RESPONDENT:Mr M C Fordham instructed by Sparke Helmore appeared for the claimant/respondent.

JUDGMENT: 1. This is a Motion seeking that a "decision" of the Registrar in issuing a certificate pursuant to s 23(1)(c) of the Compensation Court Act 1984 on 19 August 2002 be reconsidered by the Court pursuant to Pt 27 subrule 2(1) of the Compensation Court Rules 1990. In fact the prayer in the Notice of Motion filed on 3 December 2002 is incorrectly expressed, but Mr Fordham, who appears for the claimant on the Motion, the respondent to the original proceedings, confirms that my understanding of what his client seeks is correct. It seeks that I order that no interest be payable on the costs ordered by this Court with the consent of the parties on 4 February 2002 or in the alternative, that interest only be payable from 25 February 2002 until 25 March 2002, and thus that the certificate be varied to reflect whichever of those orders the Court might think appropriate. 2. The Motion was supported by an affidavit filed in this Court and sworn by Colin Bruce Pausey, the solicitor for the respondent/claimant, on 3 December 2002, but that also annexes a further affidavit filed in the District Court and sworn by Mr Pausey on 12 November 2002. That affidavit was filed in the District Court in support of a Motion for a stay on a judgment of that Court, entered as a result of the filing therein of a certificate of the award of this Court in relation to costs in these proceedings. 3. I do not propose to go through a full chronology as it is well known to the parties and there are only certain parts of it that are particularly germane to the decision I propose. The original application before me was hard fought and proceeded over many days. My original award was made on 23 December 1998 on the handing down of a reserved judgment by me in favour of the applicant, the respondent to the Motion, Colleen Thelma Allen against the respondent, the claimant on the Motion, The State of New South Wales in right of the New South Wales Department of Agriculture, if I may so put it. I made the usual costs order in favour of the successful applicant at that time. An appeal was subsequently heard in the Court of Appeal against my judgment and award, and on 13 July 2000 that appeal was dismissed. 4. On 27 December 2000 an assessment of costs was forwarded by the applicant/respondent's solicitors to the respondent/claimant's solicitors. The costs were determined by a costs assessor's certificate on 11 September 2001 in a particular sum. The applicant/respondent appealed to this Court under the powers given in the Legal Profession Act to this Court against that costs assessment, and eventually on 4 February 2002 a consent order was entered in this Court, setting aside the costs assessor's determination and determining the applicant's costs in a sum of $230,000. 5. This brought into play s 110 of the Workplace Injury Management & Workers Compensation Act 1998 ("the WIM Act"), which provides in subsection (3) that no interest is payable on any sum ordered to be paid, provided the sum is paid in full within 21 days after it becomes payable. It is made clear by Dyktynski v BHP Titanium Minerals Pty Limited (2001) 50 NSWLR 710 that the section confers a non-discretionary right to interest unless, in the opening words of subsection (1), "the Commission orders in any particular case that interest be not payable". The parties agree (for reasons which are sound but which, in view of the parties' agreement, do not require analysis) that the word "Commission" where appearing in the section refers in the current context to this Court. 6. This means that there is in the section a prima facie right to interest, as Mr Fordham for the respondent recognises, from the date of my original costs order in this Court, which was made at the time of my original award on 23 December 1998, to the date of payment of those costs. Mr Fordham concedes that it is necessary for him to satisfy me that I should order otherwise in this case. His Motion, as he eventually recognised, is properly characterised, although the Motion does not say so, as an application for review of the act of the Registrar in issuing a certificate reflecting the Consent Order dated 4 February 2002 which determined costs in the sum of $230,000, and ordered payment of interest from the date of my original costs order, by varying the certificate by inserting a different order as to interest. That certificate was issued on 19 August 2002, which is not an unimportant matter in the scheme of things in my view. 7. It is clear that the words "or does any other act" in s 36(1) of the Compensation Court Act 1984 (which by common consent applies to this Motion) refer to the issue of the certificate. Certainly it is not a "decision" within the subsection, but the "or" in the subsection in my view is disjunctive, so as to allow the review of "any other act" by a registrar (such as the issue of a certificate in the above circumstances) which is not a "decision". 8. Nevertheless, Mr Egan for the respondent/applicant rightly makes the point that because my order for costs in 1998 carried with it a right to interest under s 110 of the WIM Act, unless at the time I ordered otherwise under subsection (1), this application seeks by necessary implication that I also reconsider that order by ordering otherwise now in relation to interest as empowered by s 110(1). This in turn brings into play, as Mr Egan rightly submits, Pt 27 r 2 of the Compensation Court Rules. He draws attention in particular to subrule (2) of rule 2 reading: An application mentioned in subrule (1) shall be made as soon as practicable after the person making the application becomes aware of any ground on which it is made, and before the person, if he is a party to the proceedings, takes any fresh step in the proceedings after becoming so aware. 9. He draws attention also to r 2 subrule (3), which relevantly reads: An application mentioned in subrule (1) shall be supported by an affidavit or affidavits containing and verifying a statement as to . . . (f) any steps taken in the proceedings by the person making the application after a fact, matter or thing mentioned in paragraph (e) became known to him, and the respective dates upon which any such steps were taken. 10. Certainly Mr Pausey's affidavits comply with the Rules in this respect but they disclose a somewhat calamitous state of affairs, with respect. This is because Mr Egan's assessment of costs was submitted by him as solicitor for the applicant/respondent on 27 September 2000 to Mr Pausey as solicitor for the respondent/claimant and after considerable action on the part of both parties, consent orders were made settling the appeal to this Court from the costs assessor's decision on 4 February 2002, and on 11 March 2002, Mr Egan wrote to the claimant/respondent's solicitors noting non-payment of costs within 21 days under s 110(3) referred to above and claiming interest, and all that then occurred was a letter from Mr Pausey as solicitor for the respondent/claimant on 22 March 2002, simply enclosing a cheque for $230,000 in payment of costs but making no response whatever to Mr Egan's demand for interest. 11. Not surprisingly, Mr Egan wrote a letter of 11 April 2002, according to the respondent's chronology filed in Court today by consent, quantifying the interest he sought. No satisfactory response was received to that, so Mr Egan made application for a certificate from the Compensation Court of the judgment of this Court on the question of costs pursuant to s 23(1)(a) of the Compensation Court Act, and that certificate issued on 19 August 2002, and was served on the respondent's solicitors on 28 August 2002. 12. On 11 October 2002, a sealed copy of a certificate of the District Court obtained by Mr Egan pursuant to the District Court Act and Rules was served on the respondent/claimant's solicitors, and it was only then that they "swung into action", as Mr Fordham eloquently put it, and sought a stay from the District Court. This was, I gather, granted on terms that this Motion be heard before me to decide eventually the applicant/respondent's right to interest, hence the proceedings before me today. 13. Large slabs of delay, if I may so put it, are evident from that chronology on the part of the claimant/respondent's solicitors. Not only did they fail to pay the $230,000 they had agreed upon on behalf of their client within time as a result of administrative error, as set out in Mr Pausey's affidavit filed in the District Court, which may perhaps be excused as inadvertence, but in breach of pt 27 r. 2 subrule (2) above mentioned, they failed to take any action to have the right to interest contained in s 110(3) of the WIM Act varied until this Motion was eventually filed on 3 December 2002. Meanwhile, the right to interest had been accruing for many months. All of these matters would appear to be proper factors to consider when deciding whether to exercise the discretion in s 110(1). 14. With due respect to the pertinacious, vigorous and well argued submissions of Mr Fordham for the respondent, I can see no proper basis upon which I should exercise the discretion conferred by the opening words of s 110 and give the respondent/claimant relief from the operation of subsection (3) of the section. 15. The Motion is refused and the claimant/respondent must pay the respondent/applicant's costs. Mr D M Egan (solicitor) appeared for the respondent/applicant. Mr M C Fordham instructed by Sparke Helmore appeared for the claimant/respondent.