Australia, June 2 -- New South Wales Land and Environment Court issued text of the following judgement on May 2:

1. This matter has a slightly complex history, but it is not necessary for me to descend into all its detail for today's purposes.

2. The matter first came before me on 9 April 2025 when the plaintiff's notice of motion of 27 March 2025 was listed for hearing. That motion sought to discontinue the proceedings to enable the plaintiff to take necessary steps to comply with the pre-filing procedures stipulated by Chapter 7 of the Workplace Injury Management and Workers Compensation Act 1998 (NSW) ("WIM").

3. So far as the second defendant, for whom Mr Simone of counsel appears, is concerned, the plaintiff's motion can be disposed of on a consent basis. The agreement reached may be summarised briefly. On 9 April 2025, the second defendant's solicitor, Mr McGrath, appeared and informed me that he was of the view that the extant issue subsisting between the second defendant and the plaintiff had been resolved by way of agreement. Mr McQuillen of counsel, who appeared then and again today for the plaintiff, did not immediately acquiesce in Mr McGrath's understanding of the position.

4. As there were other reasons why the hearing of the motion of 27 March 2025 had to be adjourned, which I expressed at the time, and because of the impending hearing date of the principal action of 2 June 2025, I directed the second defendant to file a motion seeking orders pursuant to s 73 of the Civil Procedure Act 2005 (NSW) ("CPA"), and evidence in support, for the specific enforcement of what the second defendant asserted involved the settlement of the proceedings.

5. I must confess, at the time I understood the asserted agreement to be one which resolved the whole of the proceedings (which I hereinafter refer to as the "principal proceedings") and not just the plaintiff's notice of motion of 27 March 2025, but that was my misunderstanding. I am not sure that that makes a great deal of difference, and I am provisionally of the view that although ordinarily s 73 CPA might apply to a compromise or settlement of the whole of the principal proceedings, there seems to be no reason in principle why it could not equally apply to the compromise or settlement of interlocutory proceedings within the principal proceedings.

6. In any event, in compliance with my orders, a motion, with an affidavit in support, was filed pursuant to s 73 CPA on 14 April 2025. The plaintiff did not file any evidence in contradiction of the material filed on behalf of the second defendant. But when the hearing of the motion of 14 April 2025 was called this morning, Mr McQuillen took me to correspondence dated 2 April 2025 contained within Exhibit JM-1 to Mr McGrath's affidavit, particularly referring me to the penultimate and final paragraphs (on p 47) which are in the following terms:

"In the circumstances, it is only appropriate that the plaintiff confront the usual consequences of such a discontinuance and pay the second defendant's costs of the proceedings on an ordinary basis.

We are however prepared to seek our client's instructions to proffer an undertaking that such a costs order not be assessed or enforced against the plaintiff so long as there is no attempt by her to reinstitute this or similar proceedings against our client."

7. In response to that letter, on 7 April 2025, the plaintiff's solicitor, Ms Katarina Healey wrote (at p 49 Ex JM-1):

"We refer to your correspondence dated 2 April 2025 received by email at 4.35pm that day. We have instructions to accept an undertaking from your client that your client's costs not be assessed or enforced against our client so long as our client does not reinstitute these or similar proceedings against our client (sic)."

I take it that the word "our" above is a typographical error for the word of "your".

8. Mr McQuillen's point was that notwithstanding that correspondence, no undertaking had in fact been proffered. When that point was made, I raised it with Mr Simone, who obtained instructions to convey the second defendant's undertaking to the Court in accordance with the terms set out in the correspondence.

*Rest of the document can be viewed at: (https://www.caselaw.nsw.gov.au/decision/196a42bfa72face8df9f3d93)

Disclaimer: Curated by HT Syndication.