Howard Haulage Pty Limited v Mutton & ors [2007] NSWSC 237

New South Wales Supreme Court

CITATION : Howard Haulage Pty Limited v Mutton & ors [2007] NSWSC 237

HEARING DATE(S) : 23rd February 2007 16 March 2007

JUDGMENT DATE : 19 March 2007

JUDGMENT OF : Sully J at 1

DECISION : Leave to plaintiff to adduce evidence placed contingently before the Court at the hearing on 16 March 2007; Verdict for plaintiff for $59,242.42 plus costs as agreed or taxed; Judgment may be entered forthwith

LEGISLATION CITED : Law Reform (Miscellaneous Provisions) Act 1946 (NSW) Workers Compensation Act 1987 (NSW)

CASES CITED : Urban Transport Authority of NSW v Nweiser (1992) 28 NSWLR 471

PARTIES : Howard Haulage Pty Limited Hazel Mutton, Warren Mutton & Neal Mutton as Executors of the Estate of the late Maxwell Mutton & anor.

FILE NUMBER(S) : SC 20156/05

COUNSEL : D. J. Hooke - Howard Haulage Pty Limited N. E. Chen - Mutton & ors.

SOLICITORS : Edwards Michael - Howard Haulage Pty Limited Kennedys - Mutton & ors.

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

SULLY J

19 March 2007

20156/05 – HOWARD HAULAGE PTY LIMITED v MUTTON & ORS

JUDGMENT 1 SULLY J: In November last year the Court heard, jointly by consent, two actions at common law. 2 The first action, numbered 20375 of 2004, was an action brought by a Mr. Kelman in order to recover compensatory damages for personal injury suffered by him in a workplace incident. The incident occurred on a rural property then owned and occupied by Mr. Robert Mutton jointly with his brother, Mr. Maxwell Mutton. Before action brought, Mr. Maxwell Mutton died; and so Mr. Kelman brought his action against Mr. Robert Mutton and the executors of the estate of his late brother. Those defendants cross-claimed against Howard Haulage Pty Limited, Mr. Kelman's employer. The cross-claim sought contribution pursuant to the relevant provisions in that behalf of the Law Reform (Miscellaneous Provisions) Act 1946 (NSW). 3 The second action numbered 20156 of 2005 was brought by Howard Haulage Pty Limited against Mr. Robert Mutton and the executors of the estate of his late brother. This claim was one for the statutory indemnity which is provided by section 151Z(1)(d) of the Workers Compensation Act 1987 (NSW) in connection with payments which have been made pursuant to that Act to or for or on behalf of a worker who subsequently recovers common law damages. 4 As I have noted, both actions were heard together; it being agreed that the evidence in either would be evidence in both. 5 When the matters were called on for hearing on 21 November 2006, the Court was informed that the defendants whom Mr. Kelman had sued had settled his claim upon the footing of a consent judgment for $650,000 plus costs. 6 On 29 January 2007 I handed down a reserved judgment in which I found for the cross-defendants in the cross-claim. I stood over the further consideration of the indemnity proceedings. On Friday last I heard a little evidence and then further submissions in connection with those proceedings. Judgment in the indemnity proceedings was thereafter reserved. 7 It is not now controversial that, all other things being equal, Howard Haulage Pty Limited is entitled to a verdict and judgment such as would properly satisfy its statutory entitlement pursuant to section 151Z(1)(d) of the Workers Compensation Act. Neither is it controversial that the only amount that is now outstanding in that connection is an amount of interest in the sum of $59,242.42, together with appropriate costs as either assessed or taxed. 8 It is contended, however, by the defendants in the indemnity proceedings that all other things are not equal; and that on a correctly principled approach the plaintiff in these indemnity proceedings ought to be deprived of any such interest or costs. 9 In order to examine the way in which that contention is structured, it is convenient to take as a starting point some extracts from the written submissions that were handed up on Friday last by learned counsel for the defendants. "4. It is tolerably clear, therefore, that for the employer to recover interest on the payments it has made, it was required to establish when each of the payments of compensation were (sic) made. It did not do so, and the evidence closed. ………………………………………………………… 15. ………The simple fact is that the employer claimed interest as part of its claim. To succeed on this issue it needed to adduce evidence. It never formally or informally sought a concession to obviate the need to call this evidence. It is not the obligation of the cross-claimant to advise the employer on how it ought conduct its case. 16. The first time the issue was raised by the employer was in its submissions delivered after the conclusion of the case pursuant to leave. The submissions of the cross-claimant took issue with the employer's entitlement. Despite this, no step was taken to have the matter re-listed. Rather the employer permitted the delivery of judgment." 10 A correct understanding of those quoted submissions entails an examination of the closing stages of the hearing in November last. 11 Towards the close of the present plaintiff's counsel's oral submissions, I raised with him some practical difficulties that I then apprehended in connection with the quantification of an entitlement pursuant to the statutory indemnity that is provided by section 151Z(1)(d). I concentrated my own remarks upon the proposition that I would need to have some accurate information about the timing of the payment to Mr. Kelman of the agreed amount of his damages; and about the timing of the refunding, for which the Terms of Settlement provided, of payments previously made pursuant to the Workers Compensation Act. At T 191 the following is recorded: "HIS HONOUR: Is there not a simpler way, can nobody tell me when it is proposed to make the payments under the judgment? HOOKE: I can't tell your Honour that. HIS HONOUR: Of course you can't but I imagine Mr. Chen can. There must be some simple way of dealing with the matter. HOOKE: One would think that would be so. Your Honour, that then would give rise to a question of concession of the claim and consequential orders in relation to interest under section 101 of the Civil Procedure Act , interest after judgment, which would be an entitlement which would flow as a matter of course." 12 Shortly thereafter learned counsel for the present defendants put oral submissions. They propounded, so far as is at present relevant, that the indemnity claim must necessarily fail should any contribution ordered in the separate contribution cross-claim exceed in amount the amount of antecedent workers compensation payments. That was accepted by learned counsel for the present plaintiff. 13 The submissions of learned counsel for the defendants then proceeded to develop the argument that the defendants, being entitled to contribution, were entitled to it in an amount sufficient to extinguish as a practical matter the present plaintiff's right to the section 151Z(1)(d) indemnity. At T 195, learned counsel for the present defendants is recorded as having put: "The question of interest and how your Honour would make findings upon it is an entirely different matter."