AAI Limited t/as AAMI v Phillips (No. 2) - [2018] NSWSC 1829

Supreme Court

New South Wales

Medium Neutral Citation: AAI Limited t/as AAMI v Phillips (No. 2) [2018] NSWSC 1829
Hearing dates: On the papers
Date of orders: 03 December 2018
Decision date: 03 December 2018
Jurisdiction: Common Law
Before: Davies J
Decision:
(1) The first defendant’s notice of motion filed 14 November 2018 is dismissed.
(2) The first defendant is to pay the costs of the notice of motion.
Catchwords:
JUDGMENTS AND ORDERS – amending, varying and setting aside – where plaintiffs successful in proceedings for judicial review of decision of SIRA MAS Review Panel - application by first defendant to set aside order that he pay the plaintiffs’ costs – UCPR r 36.16

COSTS – party/party – exceptions to general rule that costs follow the event – nature of the proceedings - where only one of two interrelated medical issues were referred to Review Panel – where proceedings taken in relation to Review Panel’s decision on referred decision – where success by plaintiffs was moot until other issue determined – whether an exception to the general rule - where plaintiff obtained relief but not by way of certiorari – whether plaintiffs obtained relief other than relief sought in summons – relevant enquiry into conduct of litigation not conduct of antecedent matters – where first defendant submits that proceedings were inutile but did not exercise right to seek stay of proceedings
COSTS – Suitors’ Fund – where plaintiffs successful because of error of law of administrative body - no certificate granted to first defendant in circumstances where proceedings were by way of judicial review not an appeal against the decision of a court
Legislation Cited: Motor Accidents Compensation Act 1999 (NSW) s 58
Suitors' Fund Act 1951 (NSW) ss 2, 6, 6C
Uniform Civil Procedure Rules 2005 (NSW) rr 36.16, 59.10
Cases Cited: AAI Limited t/as AAMI v Phillips [2018] NSWSC 1710
Henderson v QBE Insurance (Australia) Ltd [2013] NSWCA 480; (2013) 66 MVR 69
IAG Ltd t/as NRMA Insurance v Abiad [2018] NSWSC 1603
Mead v Watson as Liquidator for Hypec Electronics [2005] NSWCA 133
Wingfoot Australia Partners Pty Ltd v Kocak (2013) 252 CLR 480; [2013] HCA 43
Texts Cited: Nil
Category: Costs
Parties: AAI trading as AAMI (First Plaintiff)
Insurance Australia Ltd t/as NRMA Insurance (Second Plaintiff)
Erroll Phillips (First Defendant)
State Insurance Regulatory Authority (Second Defendant)
A Review Panel appointed by the State Insurance Regulatory Authority (Third Defendant)
Representation:
Counsel:
K P Rewell SC (First & Second Plaintiffs)
A Canceri (First Defendant)
Submitting appearances (Second & Third Defendants)
Solicitors:
Moray & Agnew (First & Second Plaintiffs)
CMC Lawyers (First Defendant)
Crown Solicitors Office (Second and Third Defendants)

File Number(s): 2017/348070
Publication restriction: Nil

Judgment

I gave judgment in this matter on 13 November 2018: AAI Limited t/as AAMI v Phillips [2018] NSWSC 1710. I made declarations that the Certificates of the third defendant relating to two motor accidents were affected by jurisdictional error, an order in the nature of mandamus remitting the matter…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2018] NSWSC 1829
Decision Date: 03 December 2018

CaseChat Overview and Summary

The case of AAI Limited trading as AAMI v Phillips (No. 2) involved the plaintiffs, AAI Limited, seeking a review of a decision made by the SIRA MAS Review Panel. The matter was before the court, which was required to determine whether the defendant, Phillips, should be required to pay the plaintiffs' costs following their successful judicial review application. The dispute arose from the plaintiffs' challenge to the Review Panel's decision, with the primary issue being whether the plaintiffs were entitled to their costs under the circumstances of the case.

The court was tasked with examining the nature of the proceedings and whether the plaintiffs' success in obtaining relief was sufficient to warrant an award of costs. The court considered whether the plaintiffs' success in the judicial review was an exception to the general rule that costs follow the event, particularly since the proceedings were limited to one of two interrelated medical issues referred to the Review Panel. The court also explored whether the plaintiffs' success was moot until the other issue was determined, and if the plaintiffs obtained relief other than that which was sought in the summons. Additionally, the court examined whether the proceedings were inutile and if the defendant had exercised his right to seek a stay of the proceedings.

The court held that the plaintiffs were entitled to their costs as they successfully obtained relief due to an error of law by the administrative body. The court noted that the plaintiffs' success was not moot and was not by way of certiorari. The court also found that the plaintiffs' success was not inutile as the defendant did not exercise his right to seek a stay of the proceedings. The court further determined that the plaintiffs' success was not relief other than that sought in the summons. Consequently, the court ruled that the plaintiffs were entitled to their costs, and no certificate was granted to the defendant as the proceedings were by way of judicial review, not an appeal against a court decision.

The court ordered that the defendant pay the plaintiffs' costs of the proceedings, and no certificate was granted under UCPR r 36.16.

Orders