Heuving v Dirluck Pty Ltd t/as Cut Price Deli Miranda and anor [2001] NSWCC 108

Compensation Court of New South Wales

CITATION : Heuving v Dirluck Pty Ltd t/as Cut Price Deli Miranda and anor [2001] NSWCC 108 Lara M Heuving v PARTIES : Dirluck Pty Limited t/as Cut Price Deli Miranda and Coles Supermarkets Australia Pty Limited MATTER NUMBER(S) : 31828 of 1999 JUDGMENT OF: Neilson J at 1 CATCHWORDS: Elements of Workers Compensation :- LEGISLATION CITED: CASES CITED: DATES OF HEARING: 17 May 2001 EX TEMPORE JUDGMENT DATE : 05/17/2001

FOR APPLICANT: Mr P Jeffriess instructed by White Barnes appeared for the applicant. LEGAL REPRESENTATIVES: FOR RESPONDENT: Mr D G Saul instructed by Moray & Agnew appeared for the first respondent. Mr K J O'Grady instructed by Hickson Wisewoulds appeared for the second respondent.

JUDGMENT: 1. The parties have reached agreement as to the quantum of the awards to be recovered by the applicant from each of the two respondents. The parties are also agreed that the respondents ought pay the applicant's costs. The outstanding issue left for my determination is how the costs payable to the applicant are to be apportioned between the two respondents. 2. These proceedings were commenced by application for determination filed on 23 February 1999. The relief sought in that application included weekly payments of compensation from 24 October 1997 to 31 October 1998 and weekly payments from 27 January 1999 to date and continuing as well as expenses under s 60. 3. An amended application for determination was filed on 13 December 1999. That made a somewhat different claim for weekly payments of compensation. Compensation was claimed from 24 November 1997 to 31 October 1998 and from 27 January 1999 to 28 February 1999 and in between 23 September 1999 and 30 September 1999, together with a claim for an additional $49 per week from 1 October 1999 to date and continuing. It would appear that the second period claimed in the originating process closed as at 28 February 1999 and there was then essentially a further claim for weekly payments from 23 September 1999. A substantial new claim was added in this amended application for determination. The applicant claimed lump sum compensation under s 66 of $12,000 for 15 per cent loss of efficient use of the right arm below the elbow and $9,000 for 15 per cent permanent impairment of the applicant's back, and a lump sum of $25,000 under s 67. 4. The matter came on for hearing before my colleague, Judge Burke, on 20 March 2000. His Honour by consent stood the matter over to the bottom of the Pending List and as I understand it ordered, by consent, that the applicant's cost of that day be the applicant's costs in the cause. It was noted that the applicant sought to join a further respondent. That further respondent is the current second respondent. The applicant moved to the Court by notice of motion filed on 12 September 2000 to join the second respondent and such order was made by his Honour Judge Bishop on 3 October 2000. 5. The matter has settled on the basis that the first respondent has agreed to pay the applicant lump sum compensation in the total sum of $20,000 being for 15 per cent loss of efficient use of the right arm below the elbow plus an amount under s 67 of $8,750. The first respondent has also agreed to pay s 60 expenses incurred up until 23 September 1999 - not exceeding the sum of $803.90. The second respondent has agreed to pay the applicant weekly payments of compensation for three weeks between 23 September 1999 and 14 October 1999 - the princely sum in total of $1,065 together with $327.80 pursuant to s 60. 6. In a document headed "Admissions", which is Exhibit 1, the applicant has admitted that any aggravation of an injury caused by the applicant's employment with the second respondent ceased as at 14 October 1999. It is to be noted that in the further amended application for determination, which for the first time nominated the second respondent, it would appear that the same claim made in the first amended application for determination was made against both respondents. 7. The issue, in my view, falls into two areas. I cannot see how a second respondent could be liable for work done prior to any decision being made to join the second respondent - in particular, I cannot see how the second respondent could or ought be liable for the costs incurred before his Honour, Judge Bishop when the first respondent agreed that the costs of that day be the applicant's costs in the cause. The second respondent never agreed to such a proposal. Since the parties have agreed that the costs be costs in the cause, it appears to me that the first respondent ought pay the applicant's costs incurred up to and including 20 March 2000. I so order. 8. It was on that day that the applicant chose to join the second respondent and it can be seen that work done thereafter was work done against both respondents. The question then becomes how I should apportion those costs. It has been submitted by Mr Saul, for the first respondent, that those costs should be apportioned equally between the two respondents. It has been submitted by counsel for the second respondent that her costs should be apportioned pro rata to the quantum of the awards made against the respective respondents. Neither counsel has cited any authority. I know of no authority to support the bold submission made by Mr Saul. I do know of many authorities to support the proposition advanced by Mr O'Grady for the second respondent. 9. It is my normal practice - and has been in the almost seven years that I have been on the Bench - to apportion costs pro rata to the quantum in the award entered against each respondent where there is more than one respondent. If counsel bothered to read the law reports they could find a number of decisions to that effect. Furthermore, in the period of almost 20 years that I have practised before this Court, before being appointed to the Bench, it was the normal practice of Judges day to day to make an order that the applicant's costs be paid proportionately to the amount of the compensation recovered against each respondent. The applicant has recovered in total the sum of $22,196.70. Of that sum, $20,803.90 has been paid by the first respondent - that is 93.7 per cent. The second respondent has paid about 6.3 per cent of the total sum recovered by the applicant. One, of course, must use a 'broad brush' approach in questions of this nature. 10. It appears to me that the appropriate order is that the first respondent pay 90 per cent of the applicant's costs incurred since 20 March 2000 and the second respondent pay 10 per cent of costs incurred since 20 March 2000. I so order. 11. I certify additional conference for $200. Mr P Jeffriess instructed by White Barnes appeared for the applicant. Mr D G Saul instructed by Moray & Agnew appeared for the first respondent. Mr K J O'Grady instructed by Hickson Wisewoulds appeared for the second respondent.