Multiplex Constructions Pty Limited v Irving & 2 Ors; Fugen Holdings Pty Limited v Irving & 2 Ors (No 2) [2005] NSWCA 1

Multiplex Constructions Pty Limited v Irving & 2 Ors; Fugen Holdings Pty Limited v Irving & 2 Ors (No 2) [2005] NSWCA 1

Multiplex was refused permission to raise the new s 151E(3) argument because there was no denial of procedural fairness, Multiplex had a full opportunity to make all submissions before judgment, the omission was due solely to its own conduct, the proposed argument was an afterthought and contentious, and allowing it would subvert the appeal process and the finality of litigation. The Court also declined to order Fugen to indemnify Multiplex for costs because that issue was not before the Court, and declined to order repayment to Royal because the legal basis for Royal's claim was not apparent and the payments were matters to be sorted out between Multiplex, Fugen and Royal.

Jurisdiction
Australia
Judgment Date
04 March 2005
Procedural Posture
Appeals From District Court Proceedings Concerning Negligence, Contractual Indemnity, Contribution and Insurance Indemnity / On Written Submissions After Reasons for Judgment Were Delivered and Before Formal Orders Were Entered
Outcome
The first and second appeals by Multiplex and Fugen were allowed as against Mr Irving and dismissed as against Royal; the new s 151E(3) argument was not permitted to be raised; varied judgments and costs orders were made.
Legal Topics
['discretion to Allow a New Argument After Judgment But Before Formal Orders' 'finality of Litigation' 'workers Compensation Insurer Indemnity' 'contractual Indemnity' 'future Economic Loss' 'costs of Appeals']
['civil Procedure' 'workers Compensation' 'insurance' 'negligence' 'costs'] ['discretion to Allow a New Argument After Judgment But Before Formal Orders' 'finality of Litigation' 'workers Compensation Insurer Indemnity' 'contractual Indemnity' 'future Economic Loss' 'costs of Appeals']

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Procedural Posture

Appeals From District Court Proceedings Concerning Negligence, Contractual Indemnity, Contribution and Insurance Indemnity / On Written Submissions After Reasons for Judgment Were Delivered and Before Formal Orders Were Entered

Legal Issues

  1. 1 ['Whether Multiplex should be permitted to raise a new argument based on s 151E(3) of the Workers Compensation Act 1987 (NSW) after judgment had been delivered but before formal orders were entered.' 'Whether an order should be made that Fugen indemnify Multiplex for costs in the first and second appeals and at trial.' "Whether Mr Irving or Fugen should be ordered to repay Royal $31,255.95 allegedly paid in excess of Royal's admitted liability."]

Ratio Decidendi

Multiplex was refused permission to raise the new s 151E(3) argument because there was no denial of procedural fairness, Multiplex had a full opportunity to make all submissions before judgment, the omission was due solely to its own conduct, the proposed argument was an afterthought and contentious, and allowing it would subvert the appeal process and the finality of litigation. The Court also declined to order Fugen to indemnify Multiplex for costs because that issue was not before the Court, and declined to order repayment to Royal because the legal basis for Royal's claim was not apparent and the payments were matters to be sorted out between Multiplex, Fugen and Royal.

Court Disposition

The first and second appeals by Multiplex and Fugen were allowed as against Mr Irving and dismissed as against Royal; the new s 151E(3) argument was not permitted to be raised; varied judgments and costs orders were made.

Orders

  • ['The first and second appeals by Multiplex and Fugen are allowed as against Mr Irving.' 'The first and second appeals by Multiplex and Fugen are dismissed as against Royal.' "The orders made by the trial judge in relation to Mr Irving's future economic loss and superannuation on future economic loss be varied: in...