Ryan v Workers Compensation Nominal Insurer (No 2) [2020] NSWCA 129

Ryan v Workers Compensation Nominal Insurer (No 2) [2020] NSWCA 129

The offer of $20,000 plus the plaintiff's costs, although small compared with the claim, contained a real element of compromise and was more favourable than the outcome ultimately obtained by the Workers Compensation Nominal Insurer. The Insurer had years to investigate the accident and access to the primary material later used in the supplementary expert report. The later refinement of evidence did not make the case materially different from ordinary litigation development, and the policy of encouraging settlement favoured applying the default costs consequences under UCPR r 42.15. The discretion to depart from those consequences was therefore not exercised.

Jurisdiction
Australia
Judgment Date
03 July 2020
Procedural Posture
Costs Motion in Court of Appeal Concerning Offer of Compromise After Appeal From District Court Civil Proceedings Under Workers Compensation Act 1987 (nsw) S 151 Z / On the Papers; Notice of Motion to Vary Costs Order Made on 11 March 2020
Outcome
Motion granted; costs order varied to apply UCPR r 42.15 consequences, and the Workers Compensation Nominal Insurer ordered to pay Mr Ryan's costs of the notice of motion.
Legal Topics
['offer of Compromise' 'indemnity Costs' 'genuine Compromise' 'ucpr R 42.15' 'costs Discretion']
['costs' 'civil Procedure' 'workers Compensation Recovery Proceedings'] ['offer of Compromise' 'indemnity Costs' 'genuine Compromise' 'ucpr R 42.15' 'costs Discretion']

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Procedural Posture

Costs Motion in Court of Appeal Concerning Offer of Compromise After Appeal From District Court Civil Proceedings Under Workers Compensation Act 1987 (nsw) S 151 Z / On the Papers; Notice of Motion to Vary Costs Order Made on 11 March 2020

Legal Issues

  1. 1 ["Whether Mr Ryan's offer of compromise for $20,000 plus the plaintiff's costs was a genuine compromise." 'Whether the Workers Compensation Nominal Insurer established circumstances justifying departure from the ordinary costs consequences under Uniform Civil Procedure Rules 2005 (NSW), r 42.15.' 'Whether later evidentiary developments, including the supplementary report of Mr Keramidas, justified refusing indemnity costs from after the offer.']

Ratio Decidendi

The offer of $20,000 plus the plaintiff's costs, although small compared with the claim, contained a real element of compromise and was more favourable than the outcome ultimately obtained by the Workers Compensation Nominal Insurer. The Insurer had years to investigate the accident and access to the primary material later used in the supplementary expert report. The later refinement of evidence did not make the case materially different from ordinary litigation development, and the policy of encouraging settlement favoured applying the default costs consequences under UCPR r 42.15. The discretion to depart from those consequences was therefore not exercised.

Court Disposition

Motion granted; costs order varied to apply UCPR r 42.15 consequences, and the Workers Compensation Nominal Insurer ordered to pay Mr Ryan's costs of the notice of motion.

Orders

  • ['Vary order 2 made on 11 March 2020 by replacing "costs" with the words "(i) the defendant to pay the plaintiff\'s costs on the ordinary basis up to 25 July 2018, and (ii) the plaintiff to pay the defendant\'s costs on an indemnity basis from 26 July 2018", such that order 2 as varied will read: "2. Set aside the...