HIGHAM -v- BABOO PTY LTD [2026] WADC 56

[2026] WADC 56 [2026] WADC 56 [JM] Page 1 JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA IN CHAMBERS LOCATION : PERTH CITATION : HIGHAM -v- BABOO PTY LTD [2026] WADC 56 CORAM : REGISTRAR NAIRN HEARD : 19 MARCH 2026 WITH SUPPLEMENTARY SUBMISSIONS 29 MAY 2026 & 5 JUNE 2026 DELIVERED : 25 JUNE 2026 FILE NO/S : CIV 247 of 2023 BETWEEN : GEOFFERY HIGHAM Plaintiff AND BABOO PTY LTD Defendant Catchwords: Judgments - Statutory entitlement to post-judgment interest under s 8(1) Civil Judgments Enforcement Act 2004 (WA) - Judgment creditor - Monetary judgment - Judgment sum - Consent judgment providing for portions of judgment sum to be paid by judgment debtor to non-parties in light of statutory medical benefits previously received by plaintiff, including Medicare, National Disability Insurance Scheme and State hospital benefits - Whether s 8(1) Civil Judgments Enforcement Act 2004 (WA) is inconsistent with National Disability Insurance Scheme Act 2013 (Cth) -- 1 of 51 -- [2026] WADC 56 [2026] WADC 56 [JM] Page 2 Legislation: Australian Constitution, s 109 Civil Judgments Enforcement Act 2004 (WA), s 3, s 8, s 13, s 19, s 24 Health and Other Services (Compensation) Act 1995 (Cth), s 23, s 33, s 33A, s 33B, s 33C, s 33D, s 33H, s 33J, s 33L, s 33M Health Services Act 2016 (WA), s 6, s 7, s 53A, s 53B, s 55, s 56, s 57, s 57A, s 57D National Disability Services Insurance Scheme Act 2023 (Cth), s 106, s 107, s 111, s 112, s 113, s 114, s 115, s 116, s 183, s 192, s 207 Result: Findings made relevant to calculation of plaintiff's post-judgment interest entitlements Representation: Counsel: Plaintiff : Mr T S Maclaurin Defendant : Mr C C Rimmer Solicitors: Plaintiff : Percy Kakulas Gleeson Defendant : Sparke Helmore Lawyers Case(s) referred to in decision(s): 1559 High Street Pty Ltd v Camillo Builders Pty Ltd [2026] VSCA 129 Anthony v Tasmanian Alkaloids Pty Ltd (No 2) [2005] TASSC 68 Atanaskovic v Birketu Pty Ltd [2025] NSWCA 263 Badari v Minister for Housing and Homelands [2025] HCA 48 Commissioner for Fair Trading v Jonval Builders Pty Ltd (No 3) [2022] NSWSC 1641 Commonwealth Bank of Australia v Saggese [2018] VSC 40 Doedens v Owen (No 2) [2018] SASC 23 Dunn v WA Reproductive Technology Council [2026] WASCA 65 Flinn v The Maryborough Sugar Factory Limited [2003] QDC 446 G Global 120E T2 Pty Ltd v Commissioner of State Revenue [2025] HCA 39 -- 2 of 51 -- [2026] WADC 56 [2026] WADC 56 [JM] Page 3 Jeanette Jana BHT Ronald Jana v Western Sydney Local Health District t/as Westmead Hospital [2021] NSWSC 1444 Jenkins and National Disability Insurance Agency (NDIS) [2025] ARTA 2493 Keystart Loans Ltd v Mengel [2026] WASC 174 Millbrook v Davies (No 2) [2004] SADC 92 Mineralogy Pty Ltd v BGP Geoexplorer Pte Ltd [2018] QCA 256 Mount Bruce Mining Pty Ltd v Wright Prospecting Pty Ltd (No 2) [2014] NSWCA 425 Novoship (UK) Ltd & v Mikhaylyuk [2013] EWHC 89 (Comm) Owners of Majestic Rise and Majestic Crest Apartments Strata Plan 40793 v Spirov [2023] FCA 722 Ramadan v ACN 098 408 176 Pty Ltd (No 3) [2024] SASCA 19 Rambal v The Griffin Coal Mining Co Pty Ltd [2015] WASCA 197 Taylor v Company Solutions (Aust) Pty Ltd [2012] QSC 309 The Owners - Strata Plan No 31337 v Balacco [2026] NSWCA 50 Wanis v Lifestyle Residences Hobsons Bay Pty Ltd (No 2) [2024] NSWSC 1296 Ward v HCOA Operations (Australia) Pty Ltd [2013] QSC 92 Watson v Ward [2013] QCA 393 Westpac Banking Corporation ACN 007 457 141 v The Bell Group Ltd ACN 008 666 993 (in Liq) [2009] WASCA 166 Wilden Pty Ltd v Green [No 3] [2016] WASCA 74 Youssef v Bevchain Pty Ltd [2023] NSWDC 313 -- 3 of 51 -- [2026] WADC 56 REGISTRAR NAIRN [2026] WADC 56 [JM] Page 4 REGISTRAR NAIRN: 1 By a judgment given on a consent basis on 5 December 2024, judgment was entered for the plaintiff against the defendant in the sum of $4,800,000. 2 The judgment terms provided that the defendant was to pay that sum in a certain manner within 14 days of the date of service, namely: (a) the sum of $380,756.70 to the National Disability Insurance Agency (NDIA);1 (b) the sum of $480,000 to Medicare Australia (Medicare);2 and (c) the balance to the plaintiff, inclusive of any repayments pursuant to the Health Services Act 2016 (WA) (Health Services Act), and exclusive of certain other workers' compensation payments previously made.3 3 As it happened: (a) the $480,000 sum the subject of order 3(b) of the judgment was not paid by the defendant's insurer until 24 January 2025;4 (b) no payment was made to NDIA until 24 March 2025, when the sum of $389,802.02 was paid by the defendant's insurer;5 and (c) the plaintiff was not paid the balance of the judgment sum (after accounting for the payments to NDIA and Medicare) until 24 March 2025.6 4 By a Form 7 application brought under the Civil Judgments Enforcement Act 2024 (WA) (Enforcement Act), the plaintiff seeks recovery of post-judgment interest pursuant to s 8 of the Enforcement Act in the sum of $86,009.23. 5 It is that application which is the subject of these reasons, and which was the subject of detailed submissions from the parties.7 1 Order 3(a) of the judgment. 2 Order 3(b) of the judgment. 3 Order 3(c) of the judgment. 4 Letter from the plaintiff's solicitors dated 29 May 2026. 5 Letter from plaintiff's solicitors dated 29 May 2026; letter from defendant's solicitors dated 29 May 2026. 6 Affidavit of Donna Irene Percy filed 26 November 2025, pars 36 - 37, Attachment DIP13; Affidavit of Chantelle Williams filed 16 December 2025, pars 18 - 19, Attachment CW-13. -- 4 of 51 -- [2026] WADC 56 REGISTRAR NAIRN [2026] WADC 56 [JM] Page 5 Summary of issues and outcome 6 There is no dispute that the plaintiff is entitled to some post-judgment interest pursuant to s 8 of the Enforcement Act. 7 The ultimate issue for my determination is what amount of post-judgment interest is payable by the defendant to the plaintiff in respect of the judgment. 8 To resolve that ultimate issue, and having regard to the parties' submissions, various sub-issues arose for determination. 9 Those sub-issues, and a summary of my findings on each, are as follows: 1. From what date does post-judgment interest accrue? Finding: From the date of judgment (5 December 2024). 2. Is the plaintiff entitled to post-judgment interest on that part of the judgment sum payable to the NDIA pursuant to order 3(a) of the judgment? Finding: Yes. 3. Is the plaintiff entitled to post-judgment interest on that part of the judgment sum payable to Medicare pursuant to order 3(b) of the judgment? Finding: No. 4. Is the plaintiff entitled to post-judgment interest on that part of the judgment sum that the plaintiff must pay under the Health Services Act? Finding: Yes. 5. Did the NDIA recovery notice issued under the National Disability Insurance Scheme Act 2013 (Cth) (NDIS Act) impact the plaintiff's entitlements to post-judgment interest? Finding: No. 10 In view of these findings, the plaintiff is entitled to post-judgment interest on the sum of $4,320,000 (being $4,800,000 less $480,000) from 5 December 2024 to 24 March 2025. 7 The plaintiff filed its initial written submissions on 21 January 2026; the defendant's submissions were filed on 9 February 2026. This was followed by oral submissions at a special appointment on 19 March 2026. The parties then provided supplementary submissions as follows: by letters from the plaintiff's solicitors dated 29 May 2026 and 5 June 2026; by letters from the defendant's solicitors dated 29 May 2026 and 5 June 2026. -- 5 of 51 -- [2026] WADC 56 REGISTRAR NAIRN [2026] WADC 56 [JM] Page 6 How the Civil Judgments Enforcement Act 2004 (WA) provides for an entitlement to post-judgment interest 11 Before addressing the specific issues arising in this case, it is helpful to provide an overview of the Enforcement Act and understand how it provides for an entitlement to post-judgment interest, the nature and extent of that entitlement, and upon whom the entitlement is conferred. No common law entitlement to post-judgment interest 12 At common law there was no entitlement to post-judgment interest.8 Accordingly, the plaintiff's entitlement to post-judgment interest must be found within the Enforcement Act. Section 8 Civil Judgments Enforcement Act 2004 (WA) 13 Section 8(1) of the Enforcement Act: (a) sets out the obligation to pay post-judgment interest; (b) identifies the rate at which post-judgment interest is to be paid, namely the rate prescribed by the regulations,9 or at a rate set by the court; (c) identifies the sum on which post-judgment interest is to be calculated, namely the 'unpaid amount of a judgment sum'; and (d) identifies the period over which post-judgment interest is payable, namely from the date of the judgment until the date on which the judgment is paid. 14 Section 8(1) needs to be read subject to s 8(2), s 8(3), s 8(4) and s 8(5). Those subsections have been described as 'exceptions' to the rule in subsection (1).10 However, neither party contends that any of those other subsections apply in this case. Accordingly, my focus remains on s 8(1). 15 It has been held that: (a) section 8(1) grants a judgment creditor an entitlement to post-judgment interest; and 8 Wanis v Lifestyle Residences Hobsons Bay Pty Ltd (No 2) [2024] NSWSC 1296 [44] - [45] (Davies J); Ramadan v ACN 098 408 176 Pty Ltd (No 3) [2024] SASCA 19 [27] (Ramadan). 9 Presently 6% per annum: Reg 4(1) Civil Judgments Enforcement Regulations 2005 (WA). 10 Rambal v The Griffin Coal Mining Co Pty Ltd [2015] WASCA 197 [96] (Buss JA). -- 6 of 51 -- [2026] WADC 56 REGISTRAR NAIRN [2026] WADC 56 [JM] Page 7 (b) while the court has a discretion to alter the rate of post-judgment interest from the prescribed rate, there is no discretion to deprive a judgment creditor of its entitlement to that interest.11 Post-judgment interest is payable to a 'judgment creditor' 16 Section 8(1) of the Enforcement Act does not expressly state to whom post-judgment interest is payable. 17 However, the rest of the Enforcement Act makes it clear that it is a 'judgment creditor' who is entitled to such interest. 18 'Judgment creditor' is defined in s 3 as being: a person who is entitled to the benefit of a monetary judgment, including a person to whom the benefit of a monetary judgment has passed (by assignment or any other way). 19 'Monetary judgment' is defined in s 3 as a judgment or order which requires or has the effect of requiring a person to pay money. 20 Also relevant to 'monetary judgment' is 'judgment sum', which s 3 defines as the amount of money to be paid under a monetary judgment. 21 A judgment creditor is given the right under s 27 to apply for a means inquiry in respect of a judgment debtor. The purpose of the means inquiry is to determine the judgment debtor's capacity to pay a judgment debt. 'Judgment debt' is defined in s 3 to include the unpaid amount of interest on a judgment sum. 22 I also note that the scheme of the Enforcement Act is that it is the judgment creditor who is given standing to apply for certain orders to recover that judgment debt. These include: (a) a s 32 application by a judgment creditor for a time for payment order by which the judgment debtor is given a time by which the judgment must be made; (b) a s 33 application by a judgment creditor for an order that the judgment debtor pay the judgment debt by instalments; (c) a s 35 application by a judgment creditor for an earnings appropriation order by which a party liable to pay earnings to a judgment debtor is required to pay those earnings to the judgment creditor; 11 Wilden Pty Ltd v Green [No 3] [2016] WASCA 74 [21] (McLure P). -- 7 of 51 -- [2026] WADC 56 REGISTRAR NAIRN [2026] WADC 56 [JM] Page 8 (d) a s 49 application by a judgment creditor for a debt appropriation order by which a person owing a debt to the judgment debtor is required to pay the debt to the judgment creditor; and (e) a s 59 application by a judgment creditor for a property seizure order authorising the sale of the judgment debtor's property. 23 These applications are defined as 'enforcement orders' in s 17 of the Enforcement Act and are further regulated by the provisions of s 18 - s 23. 24 On such applications the judgment creditor is given a right to apply for a relevant order which is for the purposes of recovering the judgment debt (which includes post-judgment interest). 25 I also note that by s 8(3) of the Enforcement Act it is the judgment creditor who is the only party who may waive post-judgment interest. This implies that such interest is payable to a judgment creditor. 26 Thus, post-judgment interest is payable to, and claimable by, a judgment creditor. A judgment creditor need not have been a party to the case in which judgment was given 27 By s 13(1)(d) of the Enforcement Act, if a person seeking to enforce a judgment was not personally a party to the case in which the judgment was given, leave of the court must be obtained before an enforcement order may be given. 28 The existence of this provision, in conjunction with a definition of 'judgment creditor' that is tied to who has the benefit of a judgment rather than who happens to be a party to a proceeding, confirms that the Enforcement Act contemplates that: (a) judgments may give rise to benefits to persons other than the parties to the proceedings that led to the judgment; and (b) a person other than a party to a proceeding may be able to enforce a judgment. -- 8 of 51 -- [2026] WADC 56 REGISTRAR NAIRN [2026] WADC 56 [JM] Page 9 29 The drafters of the Enforcement Act have chosen to confer standing to enforce a monetary judgment on the persons entitled to the benefit of that judgment, in lieu of a different approach, such as conferring standing on the party to the proceedings who procured the judgment.12 Compensatory character of post-judgment interest 30 Post-judgment interest under s 8 of the Enforcement Act is intended to be compensatory in character; that is, to compensate the judgment creditor for being held out of money to which it is entitled.13 31 As a corollary, such interest is not intended to penalise the judgment debtor.14 Entitled means legally entitled; such entitlement may be passed to another 32 The definition of judgment creditor refers to a person 'entitled' to the benefit of a judgment. 33 In defining who may be 'entitled' to the benefit of a judgment, the definition also expressly captures a person who has been 'passed' the benefit of a judgment (such as by an assignment). 12 Curiously, s 20(1) of the Enforcement Act states that 'a court may only make an enforcement order in respect of a monetary judgment on the application of the judgment creditor or a person given leave under section 13(1)(d)' [emphasis added]. While this tends to suggest that a person given leave under s 13(1)(d) may be a person other than a judgment creditor, and that such person may be entitled to enforce a judgment, the provisions of the Enforcement Act dealing with enforcement orders only speak of the judgment creditor as being the person entitled to bring the application. Further, by s 13(2)(a), a court, before granting leave, must be satisfied 'that the person seeking to enforce the judgment is entitled to do so …'. That being the case, I do not consider that s 20(1) alters the scheme of the Enforcement Act as granting only judgment creditors with the rights of enforcement. 13 Westpac Banking Corporation ACN 007 457 141 v The Bell Group Ltd ACN 008 666 993 (in Liq) [2009] WASCA 166 [33] (Wheeler JA). A similar approach has been adopted elsewhere, notwithstanding differences in the manner in which the enabling legislation is drafted; see, for example Mount Bruce Mining Pty Ltd v Wright Prospecting Pty Ltd (No 2) [2014] NSWCA 425 [14] (Mount Bruce); Mineralogy Pty Ltd v BGP Geoexplorer Pte Ltd [2018] QCA 256 [35] (BGP Geoexplorer); Novoship (UK) Ltd & v Mikhaylyuk [2013] EWHC 89 (Comm) [53] (Clarke J) (Novoship). 14 Novoship [53]. The non-penal character of post-judgment interest has also been recognised in Queensland: see Flinn v The Maryborough Sugar Factory Limited [2003] QDC 446 (Flinn) [45] (McGill QC DCJ). On the other hand, in New South Wales, South Australia and Tasmania, it has been accepted that post-judgment interest serves a further purpose of providing an incentive to a judgment debtor to pay a judgment (or marking disapproval at failure to pay), but this approach is based on the standard rate of post-judgment interest in those jurisdictions being higher than the standard rate of pre-judgment interest. For the New South Wales position, see Mount Bruce [14]; for South Australia, see Ramadan [19]; for Tasmania, see Anthony v Tasmanian Alkaloids Pty Ltd (No 2) [2005] TASSC 68 [4] (Tasmanian Alkaloids). That consideration is not applicable in Western Australia. -- 9 of 51 -- [2026] WADC 56 REGISTRAR NAIRN [2026] WADC 56 [JM] Page 10 34 The example of an assignment as a means by which benefit may be 'passed' indicates that: (a) the relevant entitlement to a benefit under a judgment is a reference to a legal entitlement to that benefit (that is, it is entitlement that is capable of being recognised in law and passed to another by legal instrument or operation of law); and (b) at least where there has been a passing of entitlement, the entitlement of a party to the benefit of a judgment need not emerge from the judgment itself. 35 The requirement for a legal entitlement is reinforced by s 19(1) of the Enforcement Act, which provides that the purpose of an enforcement order is to satisfy a 'judgment debt owed to the judgment creditor' (emphasis added). 36 This element of legal entitlement further indicates that merely to be a practical beneficiary of a judgment does not qualify a person as a judgment creditor. 37 In a simple case where a judgment provides for a defendant to pay a plaintiff a sum of money, it is the judgment itself which confers on the plaintiff the legal entitlement to the benefit of that sum.15 By extension, the judgment qualifies that plaintiff as the judgment creditor, at least as at the date of judgment. 38 I further observe that a person who at one point in time was a judgment creditor may lose that status if that person's relevant entitlement is passed to another, whether by assignment or otherwise. 39 In this regard, I clarify that when I refer to a 'legal' entitlement, I mean an entitlement recognised by law. 40 So, for example, a person who was an assignee under an equitable assignment of a monetary judgment would, in my view, qualify as the judgment creditor under the Enforcement Act notwithstanding that the assignment may not have been effective at law, outside of equity.16 15 See Commonwealth Bank of Australia v Saggese [2018] VSC 40 [21] (Derham AsJ) and the authorities cited therein. This common law position is reinforced by s 11(1) of the Enforcement Act, which provides that, generally speaking, a judgment 'has effect' upon it being given. 'Judgment' includes a District Court judgment: s 5(b) of the Enforcement Act. See Owners of Majestic Rise and Majestic Crest Apartments Strata Plan 40793 v Spirov [2023] FCA 722 [57] - [59], in which Banks-Smith J applied s 11 to Magistrates Court judgments (which are also covered by the Enforcement Act). 16 Compare the position in Victoria; see Commonwealth Bank of Australia v Saggese [26] - [28]. In that case, Derham AsJ considered that an assignee in equity of a judgment entered for the assignor could -- 10 of 51 -- [2026] WADC 56 REGISTRAR NAIRN [2026] WADC 56 [JM] Page 11 A judgment creditor can only recover the post-judgment interest that is due to that judgment creditor 41 Section 24 of the Enforcement Act warrants specific comment. I observe that: (a) section 24 sets out how a judgment creditor is to apply monies received in respect of a judgment debt, including to any post-judgment interest; (b) section 24 does not contemplate that a judgment creditor will be entitled to be paid anything in respect of a judgment other than the subject matter of s 24(1), namely the judgment sum, interest on that sum, and enforcement costs; and (c) when it refers to post-judgment interest that the judgment creditor will be recovering, s 24 specifically refers to interest 'due to the judgment creditor' on the judgment sum. 42 Thus, s 24 does not accommodate a circumstance in which a judgment creditor is in receipt of any sums (including post-judgment interest) payable to persons other than the judgment creditor. 43 In this way, the Enforcement Act indicates that a judgment creditor will only be entitled to recover interest payable to that judgment creditor (as opposed to interest that may be payable to other persons). It is entitlement to benefit that counts; not entitlement to be paid 44 It is notable that the drafter of the Enforcement Act has defined 'judgment creditor' as being a person entitled to the benefit of a monetary judgment when it would have been possible to define it by reference to a person entitled to be paid the monies the subject of a monetary judgment. 45 It is conceivable that an entitlement to the benefit of a monetary judgment may exist without a co-existing entitlement to be paid the monies the subject of the judgment. Thus, a judgment creditor without an entitlement to be paid might be able to enforce a monetary judgment. (under the Victorian rules addressing enforcement of judgments) enforce that judgment without any need to join the assignor to the enforcement action. For a Western Australian example of where a legal entitlement was recognised in party that was not party to the original proceedings, and where leave to enforce was granted under the Enforcement Act, see Keystart Loans Ltd v Mengel [2026] WASC 174 (involving a 'Transfer Order' issued under the Keystart Act 2024 (WA)). -- 11 of 51 -- [2026] WADC 56 REGISTRAR NAIRN [2026] WADC 56 [JM] Page 12 46 On the other hand, how is that to be reconciled with other key provisions of the Enforcement Act, such as: (a) section 19(1), which speaks of a judgment debt 'owed to the judgment creditor' (emphasis added); and (b) section 24, which expressly contemplates that it is the judgment creditor that will be the person recovering the proceeds of a judgment debt that has been enforced? 47 One potential means of reconciliation is as follows: (a) the terms of a given judgment may direct a payment to be made to a person other than the plaintiff who procured it; (b) in such a case, it may still be proper to recognise the plaintiff as the judgment creditor, provided that the plaintiff is still the person entitled to the benefit of the judgment; (c) an example might be where the third-party payment directed by the judgment is discharging a debt that the plaintiff owes to the third party; and (d) in such case, notwithstanding the payment is going elsewhere, the plaintiff remains the person to whom the judgment debt is owed (as between the plaintiff and defendant), and who is the relevant judgment creditor for enforcement purposes (without the third party having an enforcement role). 48 There is no obvious injustice or absurdity in this outcome; the judgment sum, once paid (either to the third party, pursuant to the original judgment, or to the plaintiff, in the context of enforcement proceedings under the Enforcement Act and with application of s 24), is no longer unpaid and is thereby discharged. 49 Ultimately one must be careful not to dwell too much on such issues in the abstract; it is important to apply the Enforcement Act to the circumstances of a given case. 50 For present purposes, it suffices to simply recognise that a person's status as a judgment creditor turns on an entitlement to benefit, rather than an entitlement to payment. -- 12 of 51 -- [2026] WADC 56 REGISTRAR NAIRN [2026] WADC 56 [JM] Page 13 Summary 51 In summary: (a) the entitlement to post-judgment interest arises out of s 8(1) of the Enforcement Act; (b) only a judgment creditor as defined by the Enforcement Act is able to claim post-judgment interest on that judgment; (c) to qualify as a judgment creditor, a person must be legally entitled to the benefit of the monetary judgment, but need not have been a party to the proceedings that led to the judgment; (d) the judgment creditor can claim only the specific post-judgment interest that is 'due to' that judgment creditor (to adopt the parlance of s 24), meaning interest payable on the particular judgment sum to which the judgment creditor is entitled; and (e) the object of that post-judgment interest is to compensate the judgment creditor being temporarily held out of the money to which that judgment creditor is entitled; the object is not to penalise the judgment debtor. Issue 1: From what date does post-judgment interest accrue? 52 I now turn to consider the first of the issues identified in [9] above, namely: From what date does post-judgment interest accrue? 53 As I have already indicated, s 8(1) of the Enforcement Act clearly indicates that post-judgment interest is payable from the date of the judgment. 54 In this case, there is no doubt about that date: The judgment was given on 5 December 2024. 55 Contrary to the defendant's submissions,17 I find that the 14-day period given for payment expressed in the judgment18 is of no moment in this regard. It is the date of judgment which is the date that the operation of s 8(1) of the Enforcement Act is tied to. 17 Defendant's submissions filed 9 February 2026, par 2.2. 18 By order 3 of the judgment, the various payments of the judgment sum components in orders 3(a), (b) and (c) had to be paid '[w]ithin 14 days of the date of the service of this order …'. -- 13 of 51 -- [2026] WADC 56 REGISTRAR NAIRN [2026] WADC 56 [JM] Page 14 56 For completeness, I note that there was no provision in the judgment altering the time from which the judgment has effect, being a provision contemplated by s 11(1)(a) of the Enforcement Act. Issue 2: Is the plaintiff entitled to post-judgment interest on that part of the judgment sum payable to the NDIA? 57 I now turn to the second issue, namely whether the plaintiff can recover post-judgment interest in respect of sums payable by the defendant to the NDIA pursuant to order 3(a) of the judgment. 58 For the plaintiff in this case to recover post-judgment interest, he must demonstrate he was a judgment creditor at all material times, that is, that he was a person entitled to the benefit of a monetary judgment. 59 There is no dispute between the parties that the judgment in question is a monetary judgment, and that the plaintiff is entitled to post-judgment interest on the balance of the judgment sum that the plaintiff was to receive after accounting for non-party payments. 60 Relevant to the second issue, the dispute lies in whether the plaintiff is to be treated as a judgment creditor in respect of the portion of the judgment sum ($380,756.70) that the judgment (by order 3(a)) requires to be made to the NDIA. 61 In order to determine whether the plaintiff has the status of a 'judgment creditor' with respect to that portion of the judgment sum, it is appropriate to consider the judgment in its context.19 62 To understand the why the judgment directs the defendant to make a payment to the NDIA, it is necessary to consider: (a) the NDIS Act; and (b) the factual context in which the judgment was made. Statutory context: National Disability Insurance Scheme Act 2013 (Cth) 63 The NDIS Act contains various provisions which facilitate the recovery of the value of NDIS benefits provided to an injured person, where that injured person is entitled to compensation from a third party. 19 As to the ability to have regard to extrinsic context when construing a judgment, see Badari v Minister for Housing and Homelands [2025] HCA 48 [12] (Gageler CJ, Gordon, Edelman, Steward & Gleeson JJ). -- 14 of 51 -- [2026] WADC 56 REGISTRAR NAIRN [2026] WADC 56 [JM] Page 15 Mechanism to recover NDIS funding from the injured person 64 Section 107 of the NDIS Act deals with recovery of past NDIS amounts where the relevant injured person and the third party settle the injured person's compensation claim against the third party, including where the settlement is by a consent judgment (which is the nature of the judgment in this case). 65 By s 107(1), s 107 of the NDIS Act applies if two criteria are satisfied: (a) first, a consent judgment fixes an amount of compensation in respect of a personal injury that has caused (to any extent) a participant's impairment; and (b) second, before the day of the consent judgment, NDIS amounts had been paid in respect of supports in relation to the participant's impairment. 66 'Participant' is defined in s 9 of the NDIS Act as a person who is a participant in the National Disability Insurance Scheme. By s 28 of the NDIS Act, a person becomes a participant in the scheme when the relevant NDIA official (CEO) decides that the person meets the access criteria. 67 Where s 107 applies, s 107(2) of the NDIS Act indicates that the relevant participant is liable to pay the NDIA an amount, described as the recoverable amount. 68 The quantification of that recoverable amount is addressed in s 107(2), s 107(3) and s 107(4). In general terms, and subject to certain provisos including making allowance for any contributory negligence on the participant's part, the recoverable amount is determined by reference to past NDIS funding provided to a participant. 69 A consideration which clouds the calculation of the recoverable amount is that, by s 116, the NDIA is given a discretion to disregard: … the whole or part of a compensation payment as not having been fixed by a judgement (including a consent judgement) or settlement, if the [relevant NDIA official] thinks it is appropriate to do so in the special circumstances of the case. 70 At any rate, it is clear that the calculation of the recoverable amount is to be ascertained in accordance with the NDIS Act. -- 15 of 51 -- [2026] WADC 56 REGISTRAR NAIRN [2026] WADC 56 [JM] Page 16 71 The NDIS Act expressly contemplates that an injured person may be entitled to NDIS funding irrespective of that person's entitlement to recover compensation from a third party, but if a third party causes or contributes to a person's impairments and the person is awarded compensation (including via a consent judgment), the NDIA can seek to recover past NDIS funding provided for supports arising from impairments attributable to the injury.20 72 The purpose of s 107 of the NDIS Act is, in the specific context of a settlement, to prevent 'double dipping' and enhance the financial viability of the scheme.21 73 To trigger a repayment liability, there needs to be a causal link between the injury a participant is being compensated for outside of the NDIS, and the reason why that participant received NDIS funding. The relevant question under s 107 is whether the participant's impairment 'was caused, to any extent, by personal injury and if so, [whether] compensation had been received under a settlement in respect of the injury, and [whether] any amount of compensation was fixed in respect of the injury'.22 74 It has been observed that: (a) in contrast to other similar legislative schemes, s 107 does not make provision for a charge in favour of the NDIA prior to judgment being entered, and does not expressly specify whether a plaintiff has a right to recover from a defendant in respect of any NDIS amounts;23 and (b) as a result, there is uncertainty as whether and to what extent a personal injury plaintiff can properly make a claim against a defendant for NDIS funding amounts which were not losses actually incurred by that plaintiff.24 75 By s 108 of the NDIS, an amount payable under s 107 is a debt due by the person to the Agency. 20 Jenkins and National Disability Insurance Agency (NDIS) [2025] ARTA 2493 [58] (Jenkins) (Senior Member B De Villiers). 21 Jenkins [56] (Senior Member B De Villiers). Despite this, the NDIS Act does not appear to expressly make provision for the impact of the settlement of a personal injury claim in respect of a participant's future NDIS funding: See Youssef v Bevchain Pty Ltd [2023] NSWDC 313 (Youssef) [174] - [175] (Newlinds SC DCJ). The focus of s 107 on recovery of only past NDIS funding amounts suggests it is a relatively crude instrument when it comes to prevention of 'double-dipping'. 22 Jenkins [60] (Senior Member B De Villiers). 23 Youssef [169] - [170] (Newlinds SC DCJ). 24 See Youssef [173] (Newlinds SC DCJ). -- 16 of 51 -- [2026] WADC 56 REGISTRAR NAIRN [2026] WADC 56 [JM] Page 17 76 The key point is that it is the NDIS participant who, upon judgment being entered, shoulders the liability to pay the recoverable amount to the Agency.25 Mechanism to recover NDIS funding from a third party or its insurer via preliminary notices and recovery notices 77 By s 109 - s 115, the NDIS Act also sets out certain circumstances in which a respondent to a relevant claim by a NDIS participant, and that respondent's insurer, may themselves become directly liable to the NDIA in respect of NDIS benefits paid to a NDIS participant. 78 In short summary: 1. By s 109, where a NDIS participant commences a relevant claim against a respondent party (whom I will refer to as a defendant), the NDIA may give that defendant or its insurer a preliminary notice of an intention to recover an amount from the defendant or insurer (s 109 preliminary notice). 2. By s 110, the defendant or its insurer (as the case may be) will commit an offence if it has received a s 109 preliminary notice and has failed to give the NDIA (within a prescribed time) notice of its liability to pay compensation to a NDIS participant. 3. By s 111, where a NDIS participant has been paid NDIS amounts for an impairment, and there is a defendant (or insurer) with a relevant liability to compensate (or indemnify) in respect of that impairment, the NDIA may give that defendant (or its insurer) a recovery notice that the NDIA proposes to recover an amount specified in the notice (s 111 recovery notice). Where a s 111 recovery notice is given, the defendant or its insurer (as the case may be) is liable to pay the NDIA the amount specified in the notice. 4. By s 112, where a defendant or its insurer has been given either a s 109 preliminary notice or a s 111 recovery notice in respect of the defendant or insurer's actual or potential liability to pay compensation, the defendant (where the notice is directed to it) is not liable to pay that compensation while the notice has effect and (in the case of a notice to the insurer) the insurer is not liable to indemnify its insured, and the insured is not liable to pay compensation, while the relevant notice has effect. 25 Youssef [172] (Newlinds SC DCJ). -- 17 of 51 -- [2026] WADC 56 REGISTRAR NAIRN [2026] WADC 56 [JM] Page 18 5. By s 113, where a defendant or its insurer makes a payment of an amount specified in a s 111 recovery notice, that payment operates (to the extent of the payment) as a discharge of liability to pay compensation to the NDIS participant, and a discharge of its liability to pay the NDIA. 6. A defendant or insurer in receipt of a s 109 preliminary notice or a s 111 recovery notice can become liable for an offence under s 114, or to make a payment to the NDIA under s 115, if that defendant or the insurer makes an unauthorised compensation payment that is prohibited by the NDIS Act.26 79 The evident intent of these provisions is to ensure that, where NDIA issues a s 111 recovery notice, the relevant defendant or insurer pays NDIA its entitlements first in preference to the NDIS participant being paid any compensation. The provisions provide security that NDIA will be able to recover previously provided funding from a relevant judgment or settlement. Pre-judgment factual context 80 I now turn to the factual context in which order 3(a) of the judgment was made, as appears from the court file and the affidavit material before me. 81 The plaintiff's action commenced with the filing of a writ together with a statement of claim on 19 January 2023. 82 The statement of claim details an accident on 27 February 2020. It alleges the plaintiff was injured when loading sheep into a livestock trailer, using a ramp supplied by the defendant. It is alleged that the plaintiff's injuries were attributable to the defendant's negligence or breach of statutory duty. 83 By updated particulars of damage filed 18 December 2023, the plaintiff detailed a damages claim for a particular sum, plus: (a) repayment of workers' compensation payments; (b) an indemnity for injury-related expenses covered by Medicare; 26 Section 115 of the NDIS Act makes the relevant compensation payer or insurer directly liable to the NDIA for the amount of a s 111 recovery notice if the payer (or its insurer) fails to abide by s 114. In such an event, a separate debt becomes payable to the NDIA for the amount stated in the s 111 recovery notice, which debt can be recovered by it in a court of competent jurisdiction. See s 115(4) and s 183(1) of the NDIS Act. -- 18 of 51 -- [2026] WADC 56 REGISTRAR NAIRN [2026] WADC 56 [JM] Page 19 (c) an indemnity for any Centrelink recovery; and (d) an indemnity for any NDIA recovery. 84 By an amended defence filed 21 February 2023, the defendant denied the plaintiff's claim and also raised an express allegation of contributory negligence. 85 By notice dated 23 October 2024, NDIA advised the plaintiff in effect that: (a) the plaintiff was a NDIS participant; (b) the estimated recoverable amount under the NDIS Act was $423,063.45; and (c) the actual recoverable amount would only be finalised 'once the compensation claim has finished and will include costs for all past disability supports paid by the NDIS, up to the day before the claim finalises'.27 86 On 4 December 2024, shortly after trial dates were vacated, a memorandum of proposed consent judgment was lodged with the court (which led to the judgment being entered on 5 December 2024). 87 It is not in contention that the plaintiff's claim in the action was one that attracted the operation of the recovery provisions of the NDIS Act. 88 Indeed, at the time the proposed consent judgment was lodged, the parties were operating on the basis that: (a) the NDIA estimate of the recoverable amount given on 23 October 2024 was current; and (b) after adjusting for the plaintiff's contributory negligence (which was expressly provided for in the judgment), NDIA would seek recovery of $380,756.70 (being the same figure adopted in order 3(a)).28 89 This background context explains why order 3(a) was included in the judgment; namely to discharge the plaintiff's liability to the NDIA that would arise by operation of s 107 of the NDIS Act. 27 Affidavit of Donna Irene Percy filed 26 November 2025, Attachment DIP-2. 28 Affidavit of Donna Irene Percy filed 26 November 2025, par 10. -- 19 of 51 -- [2026] WADC 56 REGISTRAR NAIRN [2026] WADC 56 [JM] Page 20 90 However, it does not appear that NDIA had, immediately prior to judgment being entered, issued anything other than an estimate of what was payable to it. 91 There is no evidence that a s 109 preliminary notice or a s 111 recovery notice had been issued by the NDIA to the defendant or its insurer before judgment was entered. 92 As such, no specific liability on the plaintiff's (or anyone else's) part to pay anything to NDIA had crystallised before entry of judgment. 93 The provision made in the judgment for a payment of an amount to NDIA was, in substance, an imperfect estimate. Objectively, the parties must have appreciated that there was a risk that the true amount payable to the NDIA by the plaintiff was going to be either higher or lower than the figure included in order 3(a). The purpose of order 3(a) given this context 94 Given the above context, the objective intent of order 3(a) in directing payment of a portion of the judgment to the NDIA was to discharge the plaintiff's estimated liability to the NDIA arising under s 107 and s 108 of the NDIA Act, rather than to confer a legal entitlement upon the NDIA to the extent of that payment. 95 This is confirmed by the structure of the judgment itself. 96 The headline order of the judgment, order 1, is that the plaintiff is entitled judgment in the sum of $4,800,000. Order 3(a) is merely a means by which the plaintiff will receive the benefit of a particular portion of that sum. 97 The direction of payment to the NDIA is one of convenience, in the sense of saving the plaintiff from having to himself pay monies over to the NDIA. 98 I am reinforced in this conclusion by the fact that, at the time the judgment was issued, it was not clear what amount was ultimately going to be payable to the NDIA. 99 As explained above, the recoverable amount is determined in accordance with the NDIS Act, rather than the parties' agreement. -- 20 of 51 -- [2026] WADC 56 REGISTRAR NAIRN [2026] WADC 56 [JM] Page 21 100 This meant that order 3(a) of the judgment in this case would not necessarily reflect the actual recoverable amount the plaintiff would have to pay to NDIA. 101 All that had been issued at the date of judgment was the NDIA's estimate, and the amount specified in order 3(a) of the judgment could never operate to bind the NDIA as to its recovery entitlement. 102 Given s 107 and s 116 of the NDIS Act, upon judgment the plaintiff was bound to pay NDIA a potentially different amount. 103 It would not make sense for the parties (and by extension the court in pronouncing a consent judgment) to have intended for order 3(a) to operate to permanently transfer the substantive benefit of a portion of judgment from the plaintiff to NDIA in circumstances where: (a) there was uncertainty as to what amount NDIA would seek to recover; and (b) the parties were not in a position to bind the NDIA as to the extent of its recovery entitlements. Finding: Plaintiff is entitled to post-judgment interest on the sum payable under order 3(a) 104 Accordingly, I conclude that order 3(a) provides for a sum of money which is in substance a monetary judgment to which the plaintiff is entitled beneficially; that is to say, the plaintiff remains the judgment creditor for the amount the subject of order 3(a). 105 By extension, the plaintiff is entitled to recover post-judgment interest on the portion of the judgment sum covered by order 3(a). 106 This conclusion also recognises what I foreshadowed at [47] above in my abstract analysis of the Enforcement Act; namely that in an action between party A and party B, if judgment is given whereby party B is ordered to pay party C in circumstances where that payment to party C will discharge a liability of party A, party A is the relevant judgment creditor; not party C. 107 Indeed, it is perhaps an order like order 3(a) of the judgment in this case that the drafter of the Enforcement Act had in mind when choosing to define judgment creditor as an entitled beneficiary, rather than simply stating it is the person to whom the judgment sum was to be paid. -- 21 of 51 -- [2026] WADC 56 REGISTRAR NAIRN [2026] WADC 56 [JM] Page 22 108 There is no injustice or absurdity in giving the plaintiff in this case the right to enforce and recover the judgment debt the subject of order 3(a) in lieu of the NDIA. 109 This is because: (a) the plaintiff as the party to the proceedings the subject of the judgment has a stronger interest in enforcing the judgment than the NDIA; (b) indeed, the NDIA might never take any action to enforce a judgment ostensibly made in its favour having regard to its own extensive powers under the NDIS Act to ensure that debts owed to it are recovered; (c) before any enforcement order is given under the Enforcement Act, it remained open to the defendant to satisfy the judgment by paying the NDIA as per the terms of the judgment; and (d) if the defendant did not pay the NDIA as per the judgment, and the plaintiff took enforcement proceedings as a judgment creditor under the Enforcement Act seeking direct recovery of the sum the subject of order 3(a) in lieu of that sum being paid to the NDIA, the defendant's position would be protected since payment under any enforcement order would satisfy the judgment (and, if there were any doubt about the discharge, this could be resolved by an ancillary or consequential order made by the court when granting the relevant enforcement order).29 110 For completeness, I see no reason why the plaintiff should be deprived of the ability to recover post-judgment interest on that sum, having regard to the compensatory character of such interest. 111 I acknowledge that the parties quite properly contemplated that a substantial portion of the plaintiff's money entitlements under the judgment were being immediately paid over to the NDIA and in that sense the plaintiff would never have those monies in his pocket. 112 However, I do not find that consideration is sufficient to deny the plaintiff post-judgment interest on those monies. 29 By s 20(3) of the Enforcement Act, when or after making an enforcement order, the court may make any necessary ancillary or consequential order and may do so on terms as to costs or otherwise. -- 22 of 51 -- [2026] WADC 56 REGISTRAR NAIRN [2026] WADC 56 [JM] Page 23 113 Upon judgment being entered, the plaintiff became indebted to the NDIA under s 108 of the NDIS Act for the recoverable amount. 114 By s 183(1) of the NDIS Act, a debt under the NDIS Act is recoverable by legal proceedings taken by the NDIA in a court of competent jurisdiction. 115 If the defendant delayed payment in accordance with order 3(a), the plaintiff himself faced a claim from the NDIA that (at least to the extent of the payment) the plaintiff had delayed payment of the debt imposed by s 108, which in turn could expose the plaintiff (if legal proceedings were taken) to a claim for pre-judgment interest on that debt. 116 Given that exposure, the plaintiff retained an ongoing interest in enforcing order 3(a) against the defendant. Issue 3: Is the plaintiff entitled to post-judgment interest on that part of the judgment sum payable to Medicare? 117 I now turn to the third issue; namely whether the plaintiff is entitled to post-judgment interest on that portion of the judgment sum payable to Medicare pursuant to order 3(b) of the judgment. 118 Order 3(b) required the defendant to pay Medicare 'the advance payment of $480,000'. 119 As with order 3(a), it is useful to provide the statutory and factual context in which that order was made. Statutory context: Health and Other Services (Compensation) Act 1995 (Cth) 120 To understand why an advance payment might be made to Medicare, it is necessary to consider the Health and Other Services (Compensation) Act 1995 (Cth) (HOSC Act). Compensable person liable to repay medicare benefit where compensation fixed under a judgment or settlement 121 By s 8(1) and s 8(4) of the HOSC Act, subject to certain exceptions not relevant here, where: (a) an amount of compensation is fixed under a judgment or settlement in respect of an injury to a compensable person; and -- 23 of 51 -- [2026] WADC 56 REGISTRAR NAIRN [2026] WADC 56 [JM] Page 24 (b) a 'medicare benefit' has already been paid in respect of a professional service rendered to the compensable person in the course of treatment of the injury, the 'compensable person' is liable to pay to the Commonwealth 'an amount equal to the Medicare benefit'. 122 Relevantly: (a) a 'medicare benefit' is a reference to a medicare benefit under Part II of the Health Insurance Act 1973 (Cth);30 (b) a 'settlement' captures a consent judgment;31 (c) a 'compensable person' is (relevant to this case) a person who is entitled or who has received a compensation payment in respect of an injury;32 (d) 'compensation' includes a payment in settlement of a claim for damages made in respect of an injury to a person;33 and (e) 'amount of compensation' captures the total sum of all compensation amounts payable under the relevant judgment or settlement.34 123 By s 8(2) of the HOSC Act, the compensable person's liability to repay a medicare benefit to the Commonwealth will be reduced where the relevant judgment or settlement provides for a reduction in compensation based on contributory negligence on the part of the compensable person. Advance payment regime 124 One of the mechanisms that the HOSC Act implements to facilitate the orderly recovery of medicare benefits from persons who are entitled to receive compensation from a third party in respect of an injury is the advance payment regime, which is contained in pt 3, div 2A of the HOSC Act. 125 By s 33B(1) of the HOSC Act, a compensation payer or insurer may pay the Commonwealth an advance payment in respect of compensation payable under a judgment and settlement if certain conditions are satisfied. 30 Section 3(1) of the HOSC Act read with s 3(1) of the Health Insurance Act 1973 (Cth). 31 Section 3(1) of the HOSC Act. 32 Section 3(1) of the HOSC Act. 33 Section 4 of the HOSC Act. 34 Section 3(2) of the HOSC Act. -- 24 of 51 -- [2026] WADC 56 REGISTRAR NAIRN [2026] WADC 56 [JM] Page 25 126 By s 33B(2) of the HOSC Act, the advance payment is generally 10% of the amount payable under the judgment or settlement. 127 As noted below, it is not in contention in this case that the defendant was entitled to pay an advance payment in respect of the judgment. 128 By s 33A(3)(a) of the HOSC Act, a notice of intention to make an advance payment must be given before the judgment or settlement is made. 129 By s 33B(3)(a) of the HOSC Act, the advance payment must be paid within 28 days after the judgment or settlement was made. 130 By s 33L, when an advance payment is made, that payment operates as a discharge (to the extent of the payment) of: (a) the compensation payer's or insurer's liability to compensate the compensable person under the relevant judgment or settlement; and (b) the compensable person's liability to pay the Commonwealth amounts payable under the HOSC Act or the Health and Other Services (Compensation) Care Charges Act 1995 (Cth) in respect of compensation payable under the relevant judgment or settlement. 131 Further, where an advance payment is made, there are various mechanisms under the HOSC Act for reconciling the amount of that advance payment against the amount which is ultimately repayable to the Commonwealth for medicare benefits rendered in respect of a compensable person. In short: (a) under s 33C(1) and s 33D(1), Medicare usually has a three-month period to issue (under s 33C) a notice of past benefits rendered in treating the compensable person's injury; (b) under s 33H, if the notice of past benefits issued under s 33C is for a lesser sum than the advance payment, the Commonwealth must pay the compensable person the difference; and (c) conversely, under s 33J, if the notice of benefits is for a greater sum than the advance payment, the compensable person must pay the Commonwealth the difference. -- 25 of 51 -- [2026] WADC 56 REGISTRAR NAIRN [2026] WADC 56 [JM] Page 26 132 In summary, the advance payment regime is one where a person paying compensation to the compensable person under a judgment or settlement is given the option to pay the Commonwealth an advance payment of 10% of the total amount payable under a judgment or settlement. Where this option is available and is taken, the practical effect is that: (a) the injured person only receives 90% of the amount otherwise payable under a judgment or settlement; and (b) ten per cent is paid to the Commonwealth, following which there is a reconciliation process by which the actual amount ultimately repayable by the compensable person to the Commonwealth is determined and, depending on the outcome of that reconciliation, the compensable person either receives a rebate (if the advance payment exceeds the amount actually payable to the Commonwealth) or is subjected to a liability (if the advance payment is not sufficient). 133 I also pause to note that where an advance payment is made in the case of a consent judgment, in practical terms it might take some months after the date of a consent judgment before it is apparent whether the compensable person is entitled to any refund of any portion of the advance payment. 134 By s 33M(1) of the HOSC Act, and provided that the Commonwealth operates within the timeframes relevant to it, the Commonwealth is effectively exempted from any law requiring the Commonwealth to pay interest on the advance payment on the basis that the advance payment has not been paid to the compensable person. 135 In a similar vein, by s 33M(3) of the HOSC Act, if a compensation payer or insurer makes an advance payment, that payer or insurer is not liable to pay interest which any law purports to impose on it 'because the advance payment has not been paid to the compensable person after the judgment or settlement has been made'. -- 26 of 51 -- [2026] WADC 56 REGISTRAR NAIRN [2026] WADC 56 [JM] Page 27 Factual context relevant to Medicare 136 Specific to order 3(b) relating to the Medicare advance payment, I note as follows: (a) on 2 December 2024, the defendant's solicitors proposed to the plaintiff's solicitors that there should be an order for a 10% advance payment to Medicare included in the judgment;35 (b) this was accepted by the plaintiff's solicitors on the same date;36 and (c) further, the parties have confirmed it is common ground that the defendant (or its insurer): (i) had a right to make an advance payment of $480,000 under the HOSC Act; and (ii) made that advance payment on 24 January 2025.37 The purpose of order 3(b) given this context 137 It is evident that the parties sought the inclusion of order 3(b) in the judgment on the basis that it was agreed that the defendant (or its insurer) would make an advance payment under the HOSC Act (as in fact occurred). 138 Put another way, order 3(b) was to render the judgment consistent with the operation of the advance payment regime of the HOSC Act. Finding: Plaintiff is not entitled to post-judgment interest on the sum payable under order 3(b) 139 For the reasons that follow, and given the advance payment was in fact made, I find that s 33M(3) of the HOSC Act operates to exempt the defendant from any obligation to pay post-judgment interest on the advance payment sum that might otherwise arise under the Enforcement Act. 35 Affidavit of Donna Irene Percy filed 26 November 2025, Attachment DIP10. 36 Affidavit of Donna Irene Percy filed 26 November 2025, Attachment DIP11. 37 Letter from the defendant's solicitors to the court dated 29 May 2026; letter from the plaintiff's solicitors dated 29 May 2026. -- 27 of 51 -- [2026] WADC 56 REGISTRAR NAIRN [2026] WADC 56 [JM] Page 28 Section 109 of the Australian Constitution 140 The terms of s 33M(3) purport to override contrary State laws and thereby invoke consideration of s 109 of the Australian Constitution, which provides that: When a law of a State is inconsistent with a law of the Commonwealth, the latter shall prevail, and the former shall, to the extent of the inconsistency, be invalid. 141 With reference to s 109 of the Australian Constitution, it has been held that: (a) where there is an inconsistency that engages s 109, the State law is rendered inoperative to the extent of the inconsistency;38 (b) the State law resumes with full force and effect on and from the Commonwealth law ceasing to have effect;39 (c) there are two aspects of, or approaches to, inconsistency to consider in a given case, namely direct inconsistency and indirect inconsistency;40 (d) direct inconsistency involves consideration of whether the State law alters, impairs, undermines or detracts from the operation of the Commonwealth law;41 (e) indirect inconsistency involves considering whether the Commonwealth law is to be read as expressing an intention to 'cover the field' with respect to its subject matter, such that there is no scope for the operation of a State law dealing with the same subject matter;42 (f) an example of an inconsistency which engages s 109 is where a Commonwealth law confers an immunity, and a State law infringes that immunity, since in that circumstance the relevant State law impairs or detracts from the operation of the Commonwealth law;43 and 38 G Global 120E T2 Pty Ltd v Commissioner of State Revenue [2025] HCA 39 [38] (Global 102E) (Gageler CJ, Gordon, Edelman, Steward, Gleeson, Jagot & Beech-Jones JJ). 39 Global 102E [38]. 40 Global 102E [39] - [40]. 41 Global 102E [40]; 1559 High Street Pty Ltd v Camillo Builders Pty Ltd [2026] VSCA 129 [104] (1559 High Street) (McLeish, Kennedy, Kaye JJA). 42 Global 102E [40]. 43 Global 102E [42]. -- 28 of 51 -- [2026] WADC 56 REGISTRAR NAIRN [2026] WADC 56 [JM] Page 29 (g) another example is where a State law requires a person to do something prohibited by a Commonwealth law.44 Inconsistency in this case 142 But for s 33M(3) of the HOSC Act, it would be arguable that s 8 of the Enforcement Act operates to continue to apply post-judgment interest to the monies the subject of the advance payment, from the date of judgment up to the date the advance payment was made. 143 The rationale for this argument would be similar to the rationale I have applied in finding that post-judgment interest continued to accrue on the payment being made to the NDIA under order 3(a) of the judgment; in short, the plaintiff is to be treated as the relevant judgment creditor ultimately entitled to the benefit of the payment being made to the third party. 144 However, it is not necessary that I resolve that argument since, if s 8 did operate in such manner, it would be inconsistent with the HOSC Act and would be overridden to that extent. 145 I note that in other jurisdictions it has been accepted that a similar provision of the HOSC Act, namely s 33, overrode State legislation providing for post-judgment interest.45 146 I see no reason why a different conclusion would apply here. 147 Section 33M(3) of the NDIS Act makes it clear on its face the interest exemption in favour of a compensation payer or insurer: (a) applies wherever an advance payment is made; and (b) applies to any interest that would otherwise be payable on the advance payment by reason of there being a delay in the payment of that sum. 148 It does not matter when the advance payment is made. 44 Dunn v WA Reproductive Technology Council [2026] WASCA 65 [77]. 45 Section 33 is the equivalent of s 33M of the HOSC Act, operating in cases other than where an advance payment is made. I note in Flinn, McGill QC DCJ accepted (at [31], [32], [39]) that s 33 of the HOSC Act operated to negate, in part according to its terms, the entitlement to post-judgment interest arising under s 48 Supreme Court Act 1995 (Qld). Similarly, in Jeanette Jana BHT Ronald Jana v Western Sydney Local Health District t/as Westmead Hospital [2021] NSWSC 1444 (Jana), Davies J accepted (at [46]) that s 33 of the HOSC Act 'by force of s 109 of the Australian Constitution, varies the operation of s 101 [of the Civil Procedure Act (NSW)]'. -- 29 of 51 -- [2026] WADC 56 REGISTRAR NAIRN [2026] WADC 56 [JM] Page 30 149 The scheme of the HOSC Act is that, wherever an advance payment is actually made in respect of a consent judgment, the compensable person entitled to the benefit of the consent judgment: (a) must await the outcome of the reconciliation process described above to procure any refund (from the Commonwealth) of any portion of the advance payment; and (b) is not entitled to claim interest from anyone by reason of the advance payment not being paid at the time of the consent judgment. 150 Accordingly, I find that post-judgment interest is not payable to the plaintiff on that advance payment. 151 In making that finding, I reject the plaintiff's supplementary submission46 to the effect that s 33M(3) of the HOSC Act should be construed as operating in such a manner that the plaintiff remains entitled to post-judgment interest from the date of judgment (5 December 2024) until the date the advance payment was made (in this case 24 January 2025). 152 I do so for two reasons. 153 First, to construe s 33M(3) in such a way as to permit the accrual of post-judgment interest from the date of judgment until payment of the advance payment would run directly contrary to s 33B(3)(a) of the HOSC Act, which expressly gives the compensation payer 28 days to pay an advance payment. 154 By extension, the defendant's obligation to pay the advance payment in this case did not arise until 28 days after the date of judgment. 155 To the extent that s 8 of the Enforcement Act may be able to be interpreted as entitling the plaintiff to post-judgment interest on the advance payment from the date of judgment, it would be inconsistent with the 'grace period' that the HOSC Act gives for payment. 156 Second, and more fundamentally, the plaintiff's submission is not supported by the clear words of s 33M(3) itself, which do not permit any room for interest to be payable on an advance payment, even where the advance payment is paid late to the Commonwealth. 46 Letter from plaintiff's solicitors to the court dated 29 May 2026, page 2. -- 30 of 51 -- [2026] WADC 56 REGISTRAR NAIRN [2026] WADC 56 [JM] Page 31 157 What matters for s 33M(3) to operate is that the advance payment is made, not when it was made. 158 Where the advance payment is made, s 33M(3)(b) indicates that it overrides any law that would make interest payable 'because the advance payment has not been paid to the compensable person after the judgment or settlement has been made'. 159 The balance of s 33M of the HOSC Act is also instructive. 160 Under s 33M(1), the Commonwealth is granted a similar statutory immunity from any liability for interest that might otherwise accrue under another law by reason of the advance payment being detained by the Commonwealth after the judgment or settlement. 161 By s 33M(2), that immunity only extends to protect the Commonwealth up to the date on which the Commonwealth is due to makes a refund payment to the compensable person. In other words, the Commonwealth's immunity from interest does not apply to the period in which the Commonwealth is overdue in making a refund payment. 162 It is telling that there is no equivalent to s 33M(2) in respect of a compensation payer or insurer's late payment of an advance payment. 163 I am satisfied that the HOSC Act, by s 33M, simply leaves no room for s 8 of the Enforcement Act to operate, specifically with respect to the advance payment component of the judgment. 164 Accordingly, the plaintiff is precluded from recovering post-judgment interest on the $480,000 sum the subject of order 3(b) of the judgment. Issue 4: Is the plaintiff entitled to post-judgment interest on that part of the judgment sum that the plaintiff must repay under the Health Services Act 2016 (WA)? 165 I now turn to the fourth issue; namely whether the plaintiff is entitled to post-judgment interest on that part of the judgment sum that the plaintiff must repay under the Health Services Act 2016 (WA) (Health Services Act). -- 31 of 51 -- [2026] WADC 56 REGISTRAR NAIRN [2026] WADC 56 [JM] Page 32 166 Order 3(c) of the judgment required the defendant to pay the plaintiff the balance of the judgment sum (after accounting for amounts payable under order 3(a) and 3(b)), inclusive of any repayments pursuant to the Health Services Act 2016 (WA). 167 As with order 3(a) and 3(b), I now set out the statutory and factual context in which order 3(c) of the judgment was made. Statutory context: Health Services Act 2016 (WA) 168 Part 6 of the Health Services Act deals with recovery of costs of treatment provided by certain service providers in the Western Australian health system to an injured person who becomes entitled to compensation in respect of that person's injury. 169 By operation of s 55(1), s 56(2) and s 57(1) of the Health Services Act: (a) fees and charges for the provision of health services by health service providers may be fixed in accordance with the Health Services Act; and (b) a health service provider may 'impose' such fees and charges, in which case the relevant fee or charge is payable by or on behalf of the person who received the health service. 170 'Health service' is defined broadly in s 7(1) to capture any service for 'maintaining, improving, restoring or managing people's physical and mental health and wellbeing'. It is akin to 'treatment'. 171 By s 6 of the Health Services Act, 'health service provider' refers to a provider established via ministerial order under s 32(1)(b). 172 Section 57A of the Health Services Act establishes a means by which a health services provider may recover a dollar value for services initially rendered free of charge by that provider in certain circumstances.47 173 Section 57A is triggered if the following conditions are satisfied: (a) a person (referred to as the 'patient') receives a health service from a health service provider in relation to an injury; and (b) the health service provider does not charge the patient a 'compensable charge' for a health service. 47 A similar mechanism is set up under s 57B to cover free of charge services provided by public hospitals before the establishment of health service providers under the Health Services Act. -- 32 of 51 -- [2026] WADC 56 REGISTRAR NAIRN [2026] WADC 56 [JM] Page 33 174 By s 53A of the Health Services Act, 'compensable charge' is defined to mean 'a fee or charge that a person who received compensation could be charged for the service when the service was provided'. 175 In other words, a compensable charge is a notional charge that the relevant provider could have charged the patient under the Health Service Act but did not charge. 176 Where s 57A of the Health Services Act applies: (a) by s 57A(2), when compensation is paid or is payable in relation to an injury for which the patient received a health service, the compensable charge for that service is payable to the health service provider; and (b) by s 57A(3), the health service provider may recover the compensable charge from a relevant person, including either of the following persons: (i) a compensation payer, if that compensation payer has not paid, or has only partially paid compensation to the patient; or (ii) the patient, if the patient has received compensation in relation to the injury. 177 By s 53A and s 53B of the Health Services Act: (a) 'compensation' refers to a payment made 'in relation to' a personal injury (whether or not the injured person is the recipient of that payment) that is a payment of a relevant kind, which includes damages; and (b) 'compensation payer' means a person who must pay compensation to another person in relation to an injury. 178 By s 57A(4) of the Health Services Act, where the compensation payer pays the compensable charge under s 57A(3), that payment discharges both: (a) the payer's obligation to pay the equivalent amount of compensation to the patient; and (b) the obligation to pay that charge under the Health Services Act. -- 33 of 51 -- [2026] WADC 56 REGISTRAR NAIRN [2026] WADC 56 [JM] Page 34 179 Finally, by s 57D of the Health Services Act, where the compensation payer has been given a relevant statutory notice from a health service provider, the compensation payer must pay the compensable charge to that provider before paying the compensation to the patient. Pre-judgment factual context 180 It is not in contention between the parties that the plaintiff had received treatment (health services) from relevant health providers which would be subject to recovery claims being made by those providers under the Health Services Act. 181 The evidence before me establishes that, at the time that judgment had been entered: (a) the parties were expressly contemplating that one or more health service providers may seek a recovery of compensable charges pursuant to the Health Services Act following judgment being entered; (b) the precise amounts recoverable by the relevant health service providers were unknown;48 and (c) however, the defendant had agreed to accept an undertaking from the plaintiff's solicitors that: (i) a sum of $471,686.40 would be retained in the plaintiff's solicitors' trust account until the Health Services Act recovery had been quantified; and (ii) any Health Services Act recovery amount would not be paid until written notice of the quantified recovery amount had been provided to the defendant (and its insurer), and the defendant's share of any reduction in the quantified recovery amount had been paid to the defendant (or its insurer).49 48 Indeed, the precise amounts were still apparently uncertain in March 2025, well after judgment had been entered: see Affidavit of Donna Irene Percy filed 26 November 2025, pars 29(a), 31(a). 49 Affidavit of Donna Irene Percy filed 26 November 2025, Attachments DIP10 and DIP11. -- 34 of 51 -- [2026] WADC 56 REGISTRAR NAIRN [2026] WADC 56 [JM] Page 35 182 There is no evidence in this case that the defendant (or its insurer) had been given a notice under s 57D of the Health Services Act that would have required the defendant (or its insurer) to pay a health service provider in advance of the plaintiff.50 183 Nevertheless, it is apparent the parties were operating on the basis that, as between them: (a) it would be the plaintiff who was to directly discharge any liability to pay any relevant health service provider any recovery arising under pt 6 of the Health Services Act; (b) the judgment sum included an allowance of $471,686.40 to cover that liability; (c) it was not known whether that allowance would equate with the amount ultimately to be recovered under the Health Services Act; (d) to the extent that the $471,686.40 exceeded the amount needed to cover the recovery, the defendant would be entitled to a repayment of the difference (in priority to the recovery amount being paid to the relevant health service providers); and (e) the defendant was given comfort (via the trust account arrangement and the undertaking from the plaintiff's solicitors) that the allowance would be retained and applied for the agreed purpose only. The purpose of order 3(c) given this context 184 Given the above context, it can be seen that the purpose of order 3(c) of the judgment is to clarify and confirm that the amount being paid to the plaintiff under that order captures within it any amounts that the plaintiff may be required to pay to any health service provider under the Health Services Act. 185 This was a case where the compensable charges were to be recovered under the Health Services Act from the plaintiff (as a 'patient' under s 57A of the Health Services Act), rather than the defendant (as a 'compensation payer'). 50 The actions actually taken by the relevant health services to pursue recovery under the Health Services Act are not clear on the evidence before me. However, I note that, as at 10 February 2025 (being sometime after judgment), it appears that two health services had confirmed their position, and the position of a third health service was yet to be confirmed. See Affidavit of Chantelle Williams, Attachment CW-11. -- 35 of 51 -- [2026] WADC 56 REGISTRAR NAIRN [2026] WADC 56 [JM] Page 36 Finding: Plaintiff is entitled to post-judgment interest on that part of the judgment sum that the plaintiff was liable to repay under the Health Services Act 2016 (WA) 186 I find that when the judgment was entered: (a) compensation became payable to the plaintiff in relation to an injury for which the plaintiff had received health services so as to attract the operation of the Health Services Act; (b) the compensable charges for those health services became payable to the health service providers; and (c) the compensable charges could be recovered by the providers in the following manner: (i) from the defendant, until the plaintiff was paid compensation; and (ii) from the plaintiff, upon the plaintiff being paid compensation. 187 Accordingly, at the time that judgment was entered (and before compensation was paid), it was actually the defendant to whom the relevant health service providers could look to recover the relevant compensable charges. 188 Despite this, it is clear that the intent of the relevant portion of order 3(c) of the judgment is to provide for the plaintiff (rather than the defendant) to pay the recovery amounts under the Health Services Act out of the judgment sum monies that the defendant would pay under the judgment. 189 This approach appears to be consistent with the Health Services Act, given that s 57D was not operative, and given that s 57A(3) contemplates that the plaintiff will become the relevantly liable party upon receipt of compensation. 190 While there was a collateral agreement between the parties that $471,686.40 was being earmarked for that purpose, the reality was that the parties could not bind the relevant health service providers. 191 If the total recovery amount proved to be greater than that earmarked sum, the plaintiff (at least upon receipt of the judgment monies) would nonetheless be responsible to pay the full recovery amount under s 57A(3). -- 36 of 51 -- [2026] WADC 56 REGISTRAR NAIRN [2026] WADC 56 [JM] Page 37 192 Conversely, if the recovery amount was less than the earmarked sum, the plaintiff (upon receipt of the judgment monies) would only have to pay the health service providers the lesser sum, subject to the plaintiff's obligation under the collateral agreement to refund the defendant the surplus. 193 The defendant submits that any amounts that were to be recovered from the judgment under the Health Services Act: (a) were not costs or expenses actually incurred by the plaintiff, nor was the plaintiff liable to pay interest on such amounts; and (b) were not amounts which the plaintiff was entitled to retain as he was always subject to repaying such amounts under the Health Services Act.51 194 Nevertheless, I find that: (a) the plaintiff, upon receipt of the judgment sum, is the party ultimately responsible for repayment of the compensable charges to the relevant health service providers under the Health Services Act; (b) the reference in order 3(c) to the judgment sum being inclusive of any repayments pursuant to the Health Services Act, is doing nothing more than recognising that an unspecified component of the judgment sum might have to be used to discharge the plaintiff's liability under the Health Services Act; and (c) consistent with the approach I have taken with the payment to NDIA under order 4(a), it is appropriate to treat the plaintiff as the judgment creditor for that part of the judgment sum that the plaintiff was ultimately liable to repay to health service providers under the Health Services Act. 195 There is nothing unjust or absurd in the outcome in a context where: (a) but for the plaintiff's injury (being an injury which the defendant accepts it is liable to compensate the plaintiff for), the plaintiff would not have had any liability to repay compensable charges under the Health Services Act; and 51 Defendant's outline of submissions filed 9 February 2026, pars 14 - 15. -- 37 of 51 -- [2026] WADC 56 REGISTRAR NAIRN [2026] WADC 56 [JM] Page 38 (b) there is nothing in the judgment that indicates that the plaintiff will not receive the full amount of the balance payable under order 3(c), meaning that if the defendant was to delay paying that amount, the plaintiff is being kept out of the funds to which he is entitled under the judgment. 196 While I acknowledge that it appears that the parties made a collateral agreement under which a certain portion of the judgment sum would not ever be available for the plaintiff's use (being the earmarked sum I have referred to above), the judgment itself is silent about that arrangement. 197 I do not consider that the application of s 8 of the Enforcement Act upon a monetary judgment should be influenced by a collateral private agreement between the parties, at least where that agreement does not include a waiver of post-judgment interest under s 8(3) of the Enforcement Act. 198 There is no evidence that, in the collateral agreement, the plaintiff agreed to waive interest on any component of the sum being paid under order 3(c). 199 The plaintiff is entitled to post-judgment interest on the total judgment sum payable under order 3(c) of the judgment, with no adjustment to be made for any amounts repayable under the Health Services Act. Issue 5: Did the NDIA recovery notice issued under the National Disability Insurance Scheme Act 2013 (Cth) impact the plaintiff's entitlements to post-judgment interest? 200 I now turn to consider the fifth issue, namely whether the recovery notice issued under s 111 of the NDIS Act impacts the plaintiff's entitlements to post-judgment interest. How this issue arises The s 111 recovery notice issued by NDIA on 31 January 2025 201 On 31 January 2025, the NDIA issued a recovery notice to the defendant's insurer pursuant to s 11 of the NDIS Act, specifying that the NDIA sought to recover from the defendant's insurer an amount of $389,809.02 (s 111 recovery notice).52 52 Affidavit of Donna Irene Percy filed 26 November 2025, pars 24, 25, Attachment DIP8. -- 38 of 51 -- [2026] WADC 56 REGISTRAR NAIRN [2026] WADC 56 [JM] Page 39 202 It is not in contention that: (a) NDIA was entitled to issue the s 111 recovery notice under s 111 of the NDIS Act; (b) when the s 111 recovery notice was issued: and (i) by s 111(3) of the NDIS Act, the defendant's insurer became liable to pay NDIA the amount specified in the notice; and (ii) by s 112(2) of the NDIS Act, the defendant's insurer liability to indemnify the defendant, and the defendant's liability to compensate the plaintiff pursuant to the judgment, was suspended while the notice had effect; and (c) when the amount specified in the s 111 recovery notice was paid by the defendant's insurer on 24 March 2025: (i) the s 111 recovery notice no longer had effect, the payment having discharged the s 111 recovery notice;53 and (ii) the suspension of obligations in place under s 112(2) of the NDIS Act was lifted. 203 I further observe that, by s 113(2) of the NDIS Act, satisfaction of a s 111 recovery notice issued to an insurer discharges (to the extent of the payment) the insurer's liability to indemnify the defendant, the defendant's liability to compensate the plaintiff, and the plaintiff's liability to pay the NDIA that amount. 204 Thus, when the insurer paid $389,809.02 to the NDIA pursuant to the recovery notice, that payment operated to: (a) discharge (to the extent of $389,809.02) the defendant's obligation under the judgment to pay the plaintiff compensation; and 53 That these matters were not in contention was confirmed by the parties' responses to the court's letters dated 15 and 19 May 2026, contained in the letters from the parties' solicitors dated 29 May 2026. See also the plaintiff's outline of submissions dated 21 January 2026, par 16; defendant's outline of submissions filed 9 February 2026, par 7. -- 39 of 51 -- [2026] WADC 56 REGISTRAR NAIRN [2026] WADC 56 [JM] Page 40 (b) discharge (to the extent of $389,809.02) the plaintiff's obligation under s 107 to pay the NDIA the recoverable amount calculated in accordance with s 107. The defendant's submission as to the effect of the suspension on the obligation to pay post-judgment interest 205 The defendant submits that post-judgment interest cannot or does not accrue for so long as the defendant's liability to pay the plaintiff was suspended by operation of s 112 of the NDIS Act.54 206 In its written submissions, the defendant submitted that there was a 'clear conflict' between the NDIS Act and s 8 of the Enforcement Act insofar as the latter provision purports to provide that interest continues to accrue on a liability that is suspended by the former.55 207 In oral submissions, the defendant's counsel also pointed to s 114 of the NDIS Act, which prohibits payment of compensation while a s 111 recovery notice is in effect.56 208 The defendant's submissions invoke consideration of s 109 of the Australian Constitution. Sub-issues arising for consideration 209 To address the defendant's submissions, I address the following sub-issues in turn: (a) whether s 8(1) of the Enforcement Act, on its terms, provides for the accrual of post-judgment interest during a period of time where the judgment debtor's obligation is suspended by another law, in this case the NDIS Act (Operation Issue); and (b) if it does, whether in doing so s 8(1) of the Enforcement Act gives rise to an inconsistency such that, by operation of s 109 of the Australian Constitution, the NDIS Act prevails over s 8(1) of the Enforcement Act (Inconsistency Issue). 54 Defendant's outline of submissions filed 9 February 2026, par 7. 55 Defendant's outline of submissions filed 9 February 2026, par 7. 56 ts 14. -- 40 of 51 -- [2026] WADC 56 REGISTRAR NAIRN [2026] WADC 56 [JM] Page 41 Operation Issue 210 To resolve the Operation Issue, I consider below the words of s 8 of the Enforcement Act, the statutory purpose of post-judgment interest, and the relevant authorities. Starting with the words of s 8 211 In my view, the terms of s 8(1) of the Enforcement Act indicate that post-judgment interest does continue to accrue on a judgment debt even in circumstances where the judgment debtor's obligation to pay the judgment debt is suspended by law. 212 By s 8(1), interest is payable 'on the unpaid amount of a judgment sum from the date of the judgment until the date on which the judgment sum is paid'. 213 On the natural and ordinary meaning of those words, there is no exception permitted if, for any reason, the judgment sum is not paid. 214 This also explains why s 8(2) of the Enforcement Act exists. Section 8(2) is not intended to clarify s 8(1); rather the role of s 8(2) is to create a 'carve out' from the general rule in s 8(1), specifically it empowers a court to make an order that alters the application of s 8(1) where a suspension order, time for payment order, or instalment order has been made. 215 If s 8(2) did not exist, given the clear words of s 8(1) the court would lack the power to make any adjustments where a relevant suspension, time for payment or instalment order was made. Consideration of statutory purpose 216 A construction of s 8(1) of the Enforcement Act that recognises that post-judgment interest continues to accrue even where a judgment is subject to a statutory suspension is also consistent with the compensatory character of post-judgment interest. 217 The reality is that if there is a delay in payment, whatever the reason, that delay necessarily means that the judgment creditor is kept out of its money, and there is a loss there which post-judgment interest is intended to compensate. 218 Having considered the purpose of post-judgment interest, I see no reason to depart from the construction of s 8(1) that I have adopted. -- 41 of 51 -- [2026] WADC 56 REGISTRAR NAIRN [2026] WADC 56 [JM] Page 42 219 I further observe that there is no manifest injustice in such an outcome from a judgment debtor's perspective, given that: (a) while a suspension of an obligation to pay a judgment sum remains in force, it is the judgment debtor who continues to hold the money in its hands; and (b) in the specific context of a suspension under s 112 of the NDIS Act, the judgment debtor can act to remove the suspension (and thereby minimise exposure to post-judgment interest) by promptly paying the amount specified in the s 111 recovery notice. Consideration of authorities 220 It is also instructive to consider authorities which address the principle of whether a suspension of an obligation to pay a judgment impacts the accrual of statutory post-judgment interest. Stay cases 221 The plaintiff sought to draw an analogy with interstate cases in which a stay of execution had been ordered, yet the courts found that post-judgment interest continued to accrue during the period of the stay. 222 The plaintiff referred to Atanaskovic v Birketu Pty Ltd.57 In that case, the primary judge made orders staying orders requiring the payment of money. 223 Mitchelmore JA, in considering whether to grant leave to appeal, found that interest would continue to accrue pursuant to the NSW statutory provisions relating to post-judgment interest.58 The basis of this finding was not expanded upon, no doubt because, as the court observed, the applicant in that case conceded that very point. 224 A similar approach was taken by Leeming JA in The Owners - Strata Plan No 31337 v Balacco, where his Honour indicated that it was his 'preliminary view is that the benefit gained from the stay of execution of judgment should not disentitle [the judgment creditor] from post-judgment interest on the judgment to which she has now been found to be entitled …'.59 57 Atanaskovic v Birketu Pty Ltd [2025] NSWCA 263 (Atanaskovic). 58 Atanaskovic [27]. 59 The Owners - Strata Plan No 31337 v Balacco [2026] NSWCA 50 [83]. -- 42 of 51 -- [2026] WADC 56 REGISTRAR NAIRN [2026] WADC 56 [JM] Page 43 225 A similar approach can also be seen in the decision of Tasmanian Alkaloids, where there was a consent order staying execution pending the determination of an appeal. Blow J reasoned that a stay of execution did not extinguish the judgment debt,60 and there was no reason to suppose that post-judgment interest would cease accruing until the judgment was actually satisfied.61 226 Ultimately these decisions are of limited value in the Western Australian context because a similar approach is mandated by s 8(2) of the Enforcement Act in the case of a stay of execution. That provision provides in effect that the post-judgment interest remains payable in line with s 8(1) even where a stay of execution (via a suspension order) is ordered. 227 Nevertheless, I accept that these cases are consistent with accepting that post-judgment interest continues to accrue notwithstanding a temporary suspension of the obligation to make payment under a judgment. Conditional payment cases 228 It is also worth considering another class of cases in which a judgment sum was paid out by the judgment debtor, but on such conditions that the monies were not available for the judgment creditor's use. 229 An example is Commissioner for Fair Trading v Jonval Builders Pty Ltd (No 3).62 230 On 17 March 2020, the NSW Fair Trading Commissioner, via an application brought pursuant to the Fair Trading Act 1987 (NSW), obtained a judgment against various defendants. The terms of that judgment required the defendants to pay certain consumers (who were not parties to the proceedings) specified sums totalling more than $2 million. 231 An appeal was lodged, and consent orders were made requiring the defendants to pay the total value of the judgment into court (which they did, albeit belatedly). 60 Tasmanian Alkaloids [7]. 61 Tasmanian Alkaloids [3] - [5]. This is in the context of s 165 of the Supreme Court Civil Procedure Act 1932 (Tas), which was silent on when post-judgment interest ceased to accrue. 62 Commissioner for Fair Trading v Jonval Builders Pty Ltd (No 3) [2022] NSWSC 1641 (Jonval). -- 43 of 51 -- [2026] WADC 56 REGISTRAR NAIRN [2026] WADC 56 [JM] Page 44 232 The issue for consideration before Acting Justice Smith was whether post-judgment interest was payable pursuant to s 101 of the Civil Procedure Act 2005 (NSW) after the date on which the judgment sum had been paid into court, or whether the obligation to pay such interest ceased when the defendants made the payment into court. 233 Section 101(1) of the of the Civil Procedure Act 2005 (NSW) states that '… interest is payable on so much of the amount of a judgment … as is from time to time unpaid'. 234 The defendants argued in effect that upon paying the judgment monies into court, the judgment was no longer unpaid. 235 Acting Justice Schmidt rejected that argument. 236 Her Honour found that leaving 'the money with the court did not have the result that post-judgment interest did not continue to accrue'.63 237 This finding was made on the basis that the meaning of 'unpaid' was to be determined against a background where the evident intent of s 101 was to provide for a scheme of post-judgment interest which was compensatory.64 238 Consequentially, 'until the person entitled to be paid under the court's order, has actually been paid the judgment sum, that compensatory purpose is not achieved, with the result that the judgment remains 'unpaid'.65 239 Her Honour recognised that under the NSW legislation, there was scope for the court to alter the usual rule set out in s 101, but no such order had been applied for or made in the case. 240 Her Honour concluded that interest remained payable until the payments were made to the consumers (this occurred, on the facts, via an order for payment out of court).66 241 Her Honour was not dissuaded from this conclusion by the fact that the consumers concerned had taken no steps themselves to get the monies paid out of court earlier. In that regard, Her Honour observed that the applicable legislation imposed no burden on the beneficiaries to take active steps to obtain the fruits of the judgment.67 63 Jonval [28]. 64 Jonval [30]. 65 Jonval [31]. 66 Jonval [39]. 67 Jonval [31]. -- 44 of 51 -- [2026] WADC 56 REGISTRAR NAIRN [2026] WADC 56 [JM] Page 45 242 Another case involving a conditional payment is BGP Geoexplorer. 243 In BGP Geoexplorer judgment was issued under which one party (Mineralogy) was ordered to pay another party (BGP) a significant sum. Mineralogy appealed that judgment. Following the appeal being lodged, Mineralogy applied for a stay of execution. While that stay application was unsuccessful, Mineralogy did manage to elicit an undertaking from BGP and its solicitors to pay all monies received from Mineralogy under the judgment into a trust account, to be held until further order of the court. 244 Mineralogy paid the monies the subject of the judgment over, where the monies were then deposited in accordance with the undertaking. 245 Following the determination of the appeal in BGP's favour, an issue arose as to whether Mineralogy's liability for post-judgment interest ceased upon payment of the judgment sum into the trust account. 246 The Queensland Court of Appeal ruled that it did not; BGP was entitled to post-judgment interest until it received the judgment proceeds free of any trust arrangement or court order. 247 Payment of post-judgment interest was regulated by s 59(2) of the Civil Proceedings Act 2011 (Qld) which provided in effect that interest was payable, from the date of judgment, on the amount of money payable under the judgment. 248 Henry J observed that the effect of this provision was that post-judgment interest ceases to be payable when the relevant judgment requiring the payment of money has been satisfied.68 249 On the facts of BGP Geoexplorer, Henry J found that payment of the judgment sum into the trust account did not satisfy the judgment, since the judgment was given in unconditional terms entitling BGP to freely use the proceeds of judgment. Paying money into BGP's nominated account subject to conditions which prevented the use of that money was a very different thing to what was contemplated by that judgment.69 68 BGP Geoexplorer [22] (Henry J, Gotterson & McMurdo JJA agreeing). 69 BGP Geoexplorer [25] - [36] (Henry J, Gotterson & McMurdo JJA agreeing). -- 45 of 51 -- [2026] WADC 56 REGISTRAR NAIRN [2026] WADC 56 [JM] Page 46 250 In reaching that conclusion Henry J expressly recognised that post-judgment interest is for the purpose of compensating the unpaid beneficiary.70 251 What the decisions in Jonval and BGP Geoexplorer serve to underline is that it is consistent with the compensatory character of post-judgment interest to recognise that an unpaid beneficiary of a judgment will continue to accrue post-judgment interest for so long as the judgment sum remains out of the beneficiary's hands, whatever the reason.71 Conclusion 252 Having had regard to the words of s 8(1), its statutory purpose, and the relevant authorities, I conclude that s 8(1) does provide for the continuation of a post-judgment interest during a period of statutory suspension, including a suspension by operation of s 112 of the NDIS Act. Inconsistency Issue 253 I now turn to consider whether that operation of s 8(1) of the Enforcement Act gives rise to an inconsistency such that, by operation of s 109 of the Australian Constitution, the NDIS Act prevails over s 8(1) of the Enforcement Act. Relevant authorities 254 I have identified earlier at [141] above the principles relevant to the application of s 109 of the Australian Constitution. The relevant provisions of the NDIS Act 255 To consider whether a s 109 inconsistency exists, it is necessary to identify to the relevant terms of the Commonwealth statute. 256 In the context of a s 111 recovery notice, the key provisions are s 111, s 112, s 113, s 114 and s 115 of the NDIS Act, which have already been discussed at [78] and at [202] - [204] above. 257 By those provisions, where a s 111 recovery notice is issued after a judgment or settlement, the obligations of the compensation payer or insurer to pay compensation under the judgment or settlement are 70 BGP Geoexplorer [35] (Henry J, Gotterson & McMurdo JJA agreeing). 71 See also Doedens v Owen (No 2) [2018] SASC 23 [59] (Doedens) (Nicholson J), in the context of s 114 of the Supreme Court Act 1935 (SA). -- 46 of 51 -- [2026] WADC 56 REGISTRAR NAIRN [2026] WADC 56 [JM] Page 47 temporarily suspended until such time as the recoverable amount stated in the notice is paid. Indeed, payment of a compensable person contrary to the terms of the NDIS Act is an offence. 258 As noted at [79] above, a s 111 recovery notice forms part of a statutory scheme to ensure that NDIS funding is recovered from participants who receive compensation for a relevant injury. 259 It is also relevant to note that, by s 207(1) of the NDIS Act, it 'is the intention of the Parliament that this Act is not to apply to the exclusion of a law of a State or Territory to the extent that that law is capable of operating concurrently with this Act'. Analysis 260 I now turn to consider whether s 8(1) of the Enforcement Act is inconsistent with the NDIS Act, taking each of the two approaches to inconsistency referenced by the High Court. No direct inconsistency 261 For the following reasons, I find that s 8(1) of the Enforcement Act is not directly inconsistent with the NDIS Act. 262 First, I note that there is no express provision of the NDIS Act that purports to deal with the question of post-judgment interest in a manner inconsistent with s 8 of the Enforcement Act. This stands in contrast to s 33 and s 33M of the HOSC Act. 263 Second, the operation of s 8(1) of the Enforcement Act does not alter, impair, undermine or detract from the NDIS Act. 264 Notably, the NDIS Act does not purport to undo or extinguish the judgments or settlements it is concerned with. Rather it operates in substance as a temporary stay of execution. 265 The evident intent of s 111, s 112, s 114 and s 115 of the NDIS Act is to ensure that, where a s 111 recovery notice is issued to a compensation payer or its insurer, the NDIA gets repaid the relevant NDIS funding in priority to anyone else that the compensation payer or insurer may be liable to pay. 266 I do not see how requiring a judgment debtor to pay post-judgment interest, compensatory in nature, impairs or undermines the scheme of the NDIS Act relevant to s 111 recovery notices. -- 47 of 51 -- [2026] WADC 56 REGISTRAR NAIRN [2026] WADC 56 [JM] Page 48 267 That scheme (ultimately aimed at protecting the public purse) is still fully effective even in the face of s 8 of the Enforcement Act. 268 Nothing in s 8(1) of the Enforcement Act: (a) purports to relieve any person of any obligation imposed under the relevant provisions of the NDIS Act; or (b) requires any person to do something contrary to the NDIS Act. 269 Indeed, in one sense s 8(1) promotes the scheme of the NDIS Act. A judgment debtor the subject of an unsatisfied monetary judgment who is in receipt of a s 111 recovery notice has an incentive to promptly pay the amount specified in that notice. In particular, prompt payment will discharge the s 111 recovery notice and thereby clear the way for discharging the judgment, which will in turn minimise the judgment debtor's exposure to the judgment creditor for post-judgment interest. National Disability Insurance Scheme Act does not 'cover the field' 270 I further find that the NDIS Act does not relevantly 'cover the field' so as to engage the second approach to inconsistency described by the High Court. 271 The reason I so find is that: (a) section 207(1) of the NDIS Act is explicit in indicating an intention that it operate harmoniously with State legislation that is 'capable of operating concurrently' with the NDIS Act and this provision ought to be afforded significant weight in considering the question of inconsistency;72 (b) section 8(1) of the Enforcement Act is concerned with when interest is payable on a monetary judgment, and the amount of such interest; 72 Compare 1559 High Street. In that case, the Victorian Court of Appeal was considering whether the Victorian security of payment legislation conflicted with the Australian Consumer Law in place under the Competition and Consumer Act 2010 (Cth). The Competition and Consumer Act 2010 (Cth) included a provision in s 131C that provided (inter alia) that the Part of the act incorporating the Australian Consumer Law was 'not intended to exclude or limit the concurrent operation of any law of a State …', nor to 'limit, restrict or otherwise affect any right or remedy' a person may have but for the Australian Consumer Law. The Court of Appeal considered s 131C significant when considering the question of s 109 inconsistency, specifically there is a 'greater likelihood that that [Australian Consumer Law] is to be construed as intended to operate concurrently with the [Victorian security of payment legislation]': See 1559 High Street [114] - [117], [122]. -- 48 of 51 -- [2026] WADC 56 REGISTRAR NAIRN [2026] WADC 56 [JM] Page 49 (c) I do not see any reason why that particular aspect of the Enforcement Act cannot operate concurrently with a scheme under the NDIS Act under which the obligation to pay the judgment may be temporarily suspended; and (d) in light of s 207(1) of the NDIS Act, I see no warrant to interpret the NDIS Act as covering a field which captures when, and what amount of, post-judgment interest is payable on a judgment, that topic not being a topic which the NDIS Act is concerned with.73 Cases which address the question of inconsistency in the context of post-judgment interest 272 I am comforted in my above conclusions by those authorities where there has been consideration of the issue of whether there is any inconsistency between Commonwealth legislation impacting an obligation to pay a judgment and State legislation providing for post-judgment interest. 273 In Flinn, McGill QC DCJ held that, save for one exception, there was no direct or indirect s 109 inconsistency between the relevant State legislation regarding post-judgment interest74 and Commonwealth legislation75 which temporarily precluded a defendant from paying monies under a judgment. The exception was the HOSC Act which contained express provisions precluding post-judgment interest.76 Notably the NDIS Act does not have equivalent provisions addressing post-judgment interest. 274 In Millbrook v Davies (No 2),77 Smith DCJ held there was no inconsistency between, on the one hand, State legislation providing for post-judgment interest from the date of judgment78 and, on the other hand, Commonwealth legislation79 obliging a judgment debtor to temporarily withhold payment of judgment monies.80 73 In contrast to the HOSC Act: See s 33 and s 33M of the HOSC Act. 74 Section 48 Supreme Court Act 1995 (Qld). 75 Sections 1174A and 1176 of the Social Security Act 1991 (Cth); s 23(7) of the Disability Services Act 1986 (Cth). 76 Flinn [31], [32], [35], [37], [39] - [47]. 77 Millbrook v Davies (No 2) [2004] SADC 92 (Millbrook). 78 Section 40 District Court Act (SA). 79 Social Security Act 1991 (Cth) and the HOSC Act. In contrast to Flinn, the judgment does not refer to the impact of s 33 of the HOSC Act. 80 Millbrook [2] - [3]. -- 49 of 51 -- [2026] WADC 56 REGISTRAR NAIRN [2026] WADC 56 [JM] Page 50 275 In Taylor v Company Solutions (Aust) Pty Ltd,81 Douglas J referred to Flinn with apparent approval. His Honour further accepted a submission, informed by Flinn and Tasmanian Alkaloids, that deferral of a date by which a judgment sum is to be paid (thereby temporarily preventing execution of the judgment) did not alter the fact that post-judgment interest accrued from the date of the judgment on the basis that the judgment imposed an obligation to pay that remained 'unpaid' until it was satisfied.82 276 In Doedens, Nicholson J referred to Millbrook and Taylor without disapproval.83 His Honour found that s 114(2)(a) of the Supreme Court Act 1935 (SA), in providing for post-judgment interest over a defined period, was clear in requiring interest to be paid over the entirety of that period 'irrespective of how the delay in any payment might come about and whose fault it might have been'.84 277 In Jana, Davies J considered that: (a) section 33 of the HOSC Act did give rise to a s 109 inconsistency with the relevant State legislation regarding post-judgment interest85 and varied the operation of the State legislation to that extent; and (b) outside of the specific operation of s 33 of the HOSC Act, it was consistent with the compensatory purpose of statutory post-judgment interest to recognise that it accrues from the date of judgment even in the context of Commonwealth legislation86 operating in ways that may complicate and delay the payment of a judgment sum.87 278 These cases strongly support the view that there is no s 109 inconsistency between State legislation providing for a continuing entitlement to post-judgment interest when temporary prohibitions on paying a judgment, or suspensions of the obligation to pay the judgment, are in place under a Commonwealth law. 81 Taylor v Company Solutions (Aust) Pty Ltd [2012] QSC 309 (Taylor). 82 Taylor [13]. Taylor was also applied in this particular respect in Ward v HCOA Operations (Australia) Pty Ltd [2013] QSC 92 [10] - [14] (Ward). The appeal in Ward was dismissed: Watson v Ward [2013] QCA 393. 83 Doedens [71]. 84 Doedens [59]. 85 Section 101 of the Civil Procedure Act (NSW). 86 Section 114 of the NDIS Act and 1184B of the Social Security Act 1991 (Cth) were referenced. 87 Jana [23], [26], [32]. -- 50 of 51 -- [2026] WADC 56 REGISTRAR NAIRN [2026] WADC 56 [JM] Page 51 Finding: Plaintiff's entitlements to post-judgment interest not impacted 279 Therefore, in resolution of the fifth issue identified earlier, I find that: (a) post-judgment interest continued to accrue by operation of s 8(1) of the Enforcement Act notwithstanding the issue of the s 111 recovery notice under the NDIS Act; (b) no inconsistency between the NDIS Act and the Enforcement Act arises by such operation; and (c) accordingly, the plaintiff's entitlements in this case to post-judgment interest were not impacted by the s 111 recovery notice. Orders to be made 280 The parties ought to confer as to the proper calculation of the plaintiff's entitlements to post-judgment interest, and on a form of orders which reflects these reasons. 281 The parties ought to file an agreed minute of orders, or competing minutes of orders, within 14 days of the date of these reasons. I certify that the preceding paragraph(s) comprise the reasons for decision of the District Court of Western Australia. SB Registrar's Associate 25 JUNE 2026 -- 51 of 51 --