State of New South Wales v Fahy [2008] NSWCA 34

New South Wales Court of Appeal

CITATION: State of New South Wales v Fahy [2008] NSWCA 34

HEARING DATE(S): 10 March 2008

JUDGMENT DATE: 20 March 2008

JUDGMENT OF: Bell JA at 1

DECISION: 1. Dismiss the amended notice of motion 2. The appellant is to pay the respondent's costs

CATCHWORDS: RESTITUTION - claim for restitutionary interest on capital sum and periodic payments made as conditions of stay

Civil Procedure Act 2005 LEGISLATION CITED: Legal Profession Act 2004 Supreme Court Act 1970 Workers Compensation Act 1987

Government Insurance Office of New South Wales v Healy [No 2] (1991) 22 NSWLR 380 Heydon v NRMA Ltd [2001] NSWCA 445; 53 NSWLR 600 CASES CITED: National Australia Bank Ltd v Bond Brewing Holdings Ltd [1991] 1 VR 386 New South Wales v Fahy [2007] HCA 20; 81 ALJR 1021 State of New South Wales v Fahy [2006] NSWCA 65

PARTIES: State of New South Wales (Appellant) Gemma Fahy (Respondent)

FILE NUMBER(S): CA 40132/05

COUNSEL: Mr S Woods (Appellant) Ms S Norton SC / Ms E Welsh (Respondent)

SOLICITORS: I V Knight, Crown Solicitor (Appellant) L J Sharpe & Co (Respondent)

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): DC 11701 of 2001

LOWER COURT JUDICIAL OFFICER: Graham DCJ

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40132/05

BELL JA

Thursday 20 March 2008 STATE OF NEW SOUTH WALES v Gemma FAHY JUDGMENT 1 BELL JA: This is a claim for restitutionary interest. The State of New South Wales by amended notice of motion claims orders that Ms Fahy pay interest on monies received by her pursuant to the terms of a stay granted in this Court pending the determination of it's appeal. 2 Ms Fahy was a member of the New South Wales Police at all material times. She suffered psychiatric injury in the course of her employment. From the date of her injury she commenced receiving workers' compensation weekly payments. She had joined the Police in February 1996 and her entitlement to workers' compensation payments was subject to clause 9 of the Crown Employees (Police Officers – 2005) Award, which provided: " 9 Top-Up Supplementation of Workers' Compensation (i) This clause shall apply to officers who commenced employment with New South Wales Police on or after 1 April 1988 and who are in receipt of workers' compensation payments pursuant to the Workers Compensation Act 1987 with respect to any injury or illness arising out of or in the course of their employment as a police officer. (ii) New South Wales Police shall pay to any officer, as defined in sub-clause (i) above, the difference between the statutory amount of any workers' compensation payments received by the officer and the ordinary rate of pay of the officer. (iii) The officer's entitlement to sick leave shall not be affected by this clause. (iv) The provisions of this clause shall only apply whilst ever an officer remains an employee of New South Wales Police." 3 Ms Fahy brought proceedings in negligence against the State in the District Court seeking to recover damages arising out of her injury. The trial of her claim came before Graham DCJ sitting without a jury. 4 On 28 February 2005 Graham DCJ gave judgment for Ms Fahy in the sum of $469.893.00. On 7 March 2005 his Honour stayed the judgment on conditions which included that the State pay $200,000.00 to Ms Fahy within 14 days of the order and that it continue to pay to her workers' compensation weekly payments.