GORDON v BEROWRA HOLDINGS PTY LTD [NO 2] [2005] NSWCA 123

New South Wales Court of Appeal

CITATION: GORDON v BEROWRA HOLDINGS PTY LTD [NO 2] [2005] NSWCA 123

HEARING DATE(S): 26 November 2004

JUDGMENT DATE: 21 April 2005

JUDGMENT OF: Mason P; Sheller JA; Beazley JA

DECISION: Application refused with costs.

CATCHWORDS: Application to have orders set aside - Pt 40 r9(a) - offer of compromise

LEGISLATION CITED: Workers Compensation Act 1987

CASES CITED: N/A

Rodney John Gordon PARTIES: Berowra Holdings Pty Ltd

FILE NUMBER(S): CA 40826/03

J Sexton SC/P Regattieri - Appellant COUNSEL: M D Williams SC/P Perry - Respondent

Peacocke Dickens & Price (Dubbo) - Appellant SOLICITORS: Lee & Lyons - Respondent

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 233/01 (Dubbo)

LOWER COURT JUDICIAL OFFICER: Woods ADCJ

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40826/03 DC233/01

MASON P SHELLER JA BEAZLEY JA

Thursday, 21 April 2005 GORDON v BEROWRA HOLDINGS PTY LTD [NO 2] Judgment 1 THE COURT: In this appeal the Court (Mason P, Sheller and Beazley JJA) gave judgment on 28 February 2005 ([2005] NSWCA 27) in which we upheld the appellant/plaintiff's appeal from a decision of Woods ADCJ. The appeal concerned proceedings begun by the plaintiff in contravention of s151C of the Workers Compensation Act 1987 and the acceptance by the plaintiff of an offer of compromise made by the defendant on 6 May 2003. On the morning of 21 May the plaintiff, through his solicitor, notified acceptance of the offer. However, at 5.30 pm on Tuesday, 20 May 2003, the evening before, counsel for the defendant telephoned the plaintiff's solicitor telling him that he had instructions from the defendant to withdraw the defendant's offer of compromise and to put on an application to the District Court to seek an order that the proceedings were a nullity because they had been filed in contravention of s151C. In the course of his judgment, with which Beazley JA and I agreed, Mason P said: "16 Later on 21 May the defendant filed Notice of Motion seeking leave to withdraw its Offer of Compromise and an order that the proceedings be dismissed. It was served at about 6 pm. … 55 What is clear is that no defence or motion was filed raising s151C before the plaintiff duly accepted the Offer that was bound to remain open for acceptance under the Rules. That step was part and parcel of proceedings that were unaffected by any taint of nullity or voidness. The question becomes whether the Court should permit the defendant to resile from the Offer, in exercise of the power under rr3(7) and 5 to decline entry of judgment." 2 In fact, as the evidence discloses, on 20 May 2003 at 5.59 pm the solicitor for the defendant, Bridget Cumming, served the plaintiff's solicitors, Peacocke Dickens & Price, with an unsealed and undated copy of a notice of motion and affidavit of 20 May in support seeking leave to withdraw the defendant's offer of compromise of 6 May 2003. The notice of motion was filed at 9.40 am on 21 May 2003. 3 The respondent has filed a notice of motion dated 8 March 2005 seeking, pursuant to Pt 40 r9(1) of the SCR that the judgment and orders pronounced on 28 February 2005 be set aside and in lieu thereof the appeal dismissed with costs. The application is supported by written submissions which, after dealing with questions of power and discretion, claim that the misapprehension of fact revealed in para 16 requires that the matter be re-visited with the result claimed. 4 In fact, there is no error in the paragraphs referred to. The notice of motion was not filed until 21 May and the judgment acknowledges that at 5.30 on 20 May, counsel for the defendant telephoned the plaintiff's solicitor telling him that he had instructions from the defendant to withdraw the defendant's offer of compromise and to put on an application to the Dubbo District Court to that effect. Further, in para 15 reference was made to the letter of 21 May sent by the defendant's solicitor to the plaintiff's solicitor. The error, if there be one, is of omission. On 20 May 2003 Bridget Cumming sent a facsimile to the plaintiff's solicitors enclosing the notice of motion and affidavit of Bridget Cumming sworn 20 May 2003 "that we propose to file at Court tomorrow". We have not been able to locate any affidavit on the file by Ms Cumming of 21 May. According to the respondent's recently filed submissions, such an affidavit deposed that the notice of motion was filed "as soon as the Court Office opened on 21 May 2003". 5 The point again, if there is one, is whether the first sentence of para 55 of the judgment was materially incorrect in stating that no defence or motion was filed raising s151C before the plaintiff duly accepted the offer at 9.37 am or 9.43 am on 21 May. 6 The evidence in the missing affidavit was that the defendant's notice of motion was filed as soon as the court office opened on 21 May 2003. The submission is that the notice of motion was duly filed at 9.30 am on 21 May 2003. That, however, is based apparently on what is the normal time for the opening of registries. 7 The nub of the decision as formulated by the President in his reasons for judgment was as follows: "60 The Offer of Compromise made by the defendant on 6 May 2003 represented what it considered at the time to be a fair compromise of the litigation. The Rules gave the plaintiff 28 days within which to consider acceptance, absent an order permitting withdrawal (cf r3(5)). Nothing happened during the currency of the Offer except the defendant realising the application of s151C to the particular case and signalling its intention to move the court for leave to withdraw the Offer. At all material times the Defence stood unamended, without invocation of s151C. This is not the sort of new situation considered in any of the earlier cases or within the principles they expound. 61 At best for the defendant, it belatedly realised the possibility of raising a statutory defence that was only a knockout blow if the plaintiff failed ultimately to establish waiver. The point is hardly meritorious when it is recalled that the whole purpose of s151C is to enable a defendant to consider its settlement options before litigation. The defendant had had well over a year, including the arbitration, to assess its prospects. The fact that it made the Offer indicates its ability to do so. 62 The defendant needed leave to amend to raise the s151C point. Such leave should be refused (cf Verwayen at 456, 464-5). I would also refuse leave to withdraw the Offer."