New South Wales Court of Appeal CITATION: COASTWIDE STEEL & METAL WORK PTY LTD v DOUGLAS (No. 2) [2008] NSWCA 218 This decision has been amended. Please see the end of the judgment for a list of the amendments. HEARING DATE(S): 1 September 2008 JUDGMENT DATE: 1 September 2008 JUDGMENT OF: Basten JA at 1 EX TEMPORE JUDGMENT DATE: 1 September 2008 (1) Refer the motion filed on 8 August 2008 to the Court of Appeal for hearing and determination. (2) Direct the appellant to serve any affidavit on which it seeks to rely by Friday 5 September 2008. (3) Reserve to the respondent right to file any further evidence in response to the affidavit of the appellant and to file written submissions. DECISION: (4) Direct that any dispute in relation to the calculation of the quantum of damages be addressed by written submissions filed by both parties, together with short minutes of orders proposed to be made by the court. (5) Give liberty to the parties to apply on three days' notice. (6) Otherwise reserve the matter for determination of the outstanding issues. LEGISLATION CITED: Supreme Court Act 1970 (NSW), s 46 Workers Compensation Act 1987 (NSW), s 151A CATEGORY: Procedural and other rulings CASES CITED: Coastwide Steel & Metal Work Pty Limited v Douglas [2008] NSWCA 173 PARTIES: Coastwide Steel & Metal Work Pty Ltd (Appellant) Jason James DOUGLAS (Respondent) FILE NUMBER(S): CA 40468/07 COUNSEL: J Jobson (Appellant) R Goodridge (Respondent) SOLICITORS: McCulloch & Buggy (Appellant) Firths - The Compensation Lawyers (Respondent) LOWER COURT JURISDICTION: District Court LOWER COURT FILE NUMBER(S): DC 3336/04 LOWER COURT JUDICIAL OFFICER: Boulton ADCJ LOWER COURT DATE OF DECISION: 29 June 2007 IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40468/07 BASTEN JA 1 September 2008 COASTWIDE STEEL & METAL WORK PTY LTD v DOUGLAS (No. 2) Judgment 1 BASTEN JA: The appeal in this matter was heard on 14 July 2008. It involved an appeal by the defendant against an assessment of damages for personal injury, in the District Court. The notice of appeal sought to set aside the orders of the trial judge, but no grounds were identified in relation to the order for costs. 2 In the course of the hearing in this Court, it became clear that the appellant was likely to succeed on one ground, which involved the requirement that damages be assessed in this matter in accordance with the constrained regime imposed by the Workers' Compensation Legislation Further Amendment Act 2001 (NSW), which applied to proceedings commenced on or after 27 November 2001. Application of the amended legislation reduced the amount of damages recoverable by the plaintiff. 3 During the course of the hearing of the appeal, questions arose as to the consequences which would flow from success on this ground. Following discussion with counsel, it seemed probable that the parties would be able to agree the relevant calculations, in the light of the principles established by the Court's judgment. 4 Late in the respondent's oral argument there was discussion as to the question of costs in the District Court: Tcpt, NSWCA, 14/07/08, p 52(40). In response to a question from the Court, counsel for the respondent stated: "The cost[s] of the trial have been awarded, assessed and paid. Now that's not to say that there may not remain any dispute about them but I don't think it's a dispute this court can deal with, particularly if it's not been put in issue here." 5 The Court noted that it had been in issue to the extent that the appellant sought to set aside all of the orders made below, but that there had been no submissions as to what ought to happen. Counsel for the respondent, who had been the beneficiary of the order for costs at trial, was understandably able to take the matter no further. 6 Counsel for the appellant immediately picked up the matter in his reply stating (p 52): "And I wouldn't be asking your Honours to change any of the orders made in the court below as to costs." 7 The judgment of the Court was delivered on 5 August 2008: Coastwide Steel & Metal Work Pty Limited v Douglas [2008] NSWCA 173. In accordance with indications given in the course of the hearing, it set aside the orders made in the District Court, "other than as to costs": Order 2. The parties were given an opportunity to reach agreement, or make submissions, in relation to the recoupment of compensation payments, pursuant to s 151A of the Workers Compensation Act 1987 (NSW). 8 In considering the consequences of the judgment in relation to quantum, it became apparent that some further calculations might need to be done in relation to interest payments because a stay had been granted to the appellant before the hearing of the appeal, on condition that the workers' compensation insurer continued to make payments of compensation. (The legal basis of the condition was not addressed.) 9 On 8 August 2008 the appellant filed a notice of motion, with a solicitor's affidavit in support, seeking orders that the Court "apply its findings to the costs order made in the District Court" and "set aside the costs assessment … dated 27 May 2008". The appellant also sought a stay on payment of the balance of the judgment pending a refund of the costs returnable by the respondent. 10 So far as the appellant seeks to vary the costs order made in the District Court, it is, in effect, seeking to reopen the appeal in order to address an issue which, if it were ever live, was abandoned at the hearing. The judgment delivered by the Court on 5 August 2008 did not grant leave to address this issue. 11 The powers of a single judge of appeal are identified in s 46 of the Supreme Court Act 1970 (NSW). I do not consider that those powers extend to an order reopening an appeal in circumstances where, although final orders have not all been made, the Court has determined that it will not set aside the specific order which one party now wishes to challenge. 12 Even if such power were available to a single judge, I would not exercise that power. It is a matter for the Court, preferably as originally constituted, to consider whether to take that step. 13 On being advised that I intended to take this approach, counsel for the appellant invited me to refer the motion to the Court constituted by three judges, which I will now do. He also indicated that he would be content if the Court dealt with the matter on the papers. There is an affidavit which has been filed on behalf of the appellant which annexes written submissions. I will return to those. 14 The motion appears to raise a separate issue with respect to the assessment of costs made on 27 May 2008. That motion is based upon the same proposition as the request to reopen the costs order below, namely that, because the proceedings are caught by the new statutory regime, the basis for calculation of costs, according to the appropriate regime, will be different to that assumed to operate prior to the judgment of this Court. Accordingly, it is appropriate that the whole of the notice of motion be referred to the Court of Appeal for determination. The costs of today should be costs in the motion. 15 I make the following orders: (1) Refer the motion filed on 8 August 2008 to the Court of Appeal for hearing and determination. (2) Direct the appellant to serve any affidavit on which it seeks to rely by Friday 5 September 2008. (3) Reserve to the respondent right to file any further evidence in response to the affidavit of the appellant and to file written submissions. (4) Direct that any dispute in relation to the calculation of the quantum of damages be addressed by written submissions filed by both parties, together with short minutes of orders proposed to be made by the court. (5) Give liberty to the parties to apply on three days' notice. (6) Otherwise reserve the matter for determination of the outstanding issues. 16 I have not fixed a time with respect to (3) and (4) in the expectation that the parties will proceed diligently. Any unanticipated difficulties can be dealt with by further directions. ********** 11/09/2008 - Typographical error - Paragraph(s) Header DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.