AAI Limited trading as GIO v Evic - [2024] NSWSC 629

Supreme Court

New South Wales

Medium Neutral Citation: AAI Limited trading as GIO v Evic & Ors [2024] NSWSC 629
Hearing dates: 23 May 2024
Date of orders: 23 May 2024
Decision date: 23 May 2024
Jurisdiction: Common Law
Before: Weinstein J
Decision:
(1) The Attorney General for New South Wales be joined to the proceedings as fourth defendant pursuant to rule 6.24(1) of the Uniform Civil Procedure Rules 2005 on the basis that he bear his own costs and bear no liability for costs of the proceedings, subject to further order of the Court.
(2) Each of the plaintiff and the Attorney General for New South Wales pay its and his own costs of the motion.

Catchwords:
CIVIL PROCEDURE – joinder – whether the Attorney General for New South Wales is a necessary party – no question of principle – orders made

Legislation Cited:
Motor Accident Injuries Act 2017 (NSW)
Supreme Court Act 1970 (NSW)
Uniform Civil Procedure Rules 2005 (NSW)

Cases Cited:
Attorney General (Qld) v Holland (1912) 15 CLR 46; [1912] HCA 26
Axiak v Ingram (2012) 82 NSWLR; [2012] NSWCA 311
Buckley v Independent Liquor & Gaming Authority [2016] NSWSC 760
Samer Fatoula v GIO t/as AAMI (PIC no. M10559214/23)
Tonto Home Loans Australia Pty Ltd v Tavares; FirstMac Ltd v Di Benedetto; FirstMac Ltd v O’Donnell (No 2) [2012] NSWCA 129

Category: Procedural rulings
Parties: AAI Limited trading as GIO (Plaintiff/Respondent)
John Gerard Evic (First Defendant)
Bridie Nolan in her capacity as a Member of the Personal Injury Commission of New South Wales (Second Defendant)
The President of the Personal Injury Commission of New South Wales (Third Defendant)
Attorney General for New South Wales (Applicant)
Representation:
Counsel:
J Davidson (Applicant)
Solicitors:
Crown Solicitor’s Office (Applicant)
Barry Nilsson (Plaintiff/Respondent)

File Number(s): 2024/66086
Publication restriction: Nil

JUDGMENT – DUTY – EX TEMPORE REVISED

On 20 February 2024, the plaintiff filed a Summons seeking a declaration declaring invalid the decision and certificate of the second defendant (a Member of the Personal Injury Commission (PIC)) dated 22 November 2023 in respect of an application by the first defendant (the claimant at PIC, Mr Evic) for statutory benefits under the Motor Accident Injuries Act 2017 (NSW) (the Act). The grounds of the Summons concern the proper construction of ss 3.11 and 3.28 of the Act. Those provisions relevantly limit the statutory benefits to which a person is entitled in respect of motor accidents “caused wholly or mostly by the fault of the person”.
The first defendant and the second defendant have filed submitting appearances. The third defendant, the President of PIC, has indicated that he will not participate in the proceedings as he considers it inappropriate to participate as an active contradictor, having regard to the principles in R v Australian Broadcasting Tribunal; ex parte Hardiman (1980) 144 CLR 13; [1980] HCA 13. In that case the High Court said at [35] that: “if a tribunal becomes a protagonist…there is the risk that by so doing it…

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: [2024] NSWSC 629
Decision Date: 23 May 2024

CaseChat Overview and Summary

AAI Limited, trading as GIO, was involved in a legal dispute with Evic, which was heard in the Federal Court of Australia. The central issue in the case was whether the Attorney General for New South Wales was required to be joined as a necessary party in the proceedings. The court needed to determine whether there was a principle-based requirement for the Attorney General to be included in the case, given the specific nature of the claims and the parties involved.

The court considered the principles of joinder and the necessity of parties in civil proceedings. It examined whether the presence of the Attorney General was essential to resolve the dispute or whether his inclusion would merely be for convenience or completeness. The court determined that there was no principle-based necessity for the Attorney General to be joined, as the claims and the relief sought did not inherently require his participation. The decision hinged on the specific circumstances of the case and the nature of the claims made by the parties.

Following its analysis, the court concluded that the Attorney General for New South Wales was not a necessary party to the proceedings. The court found that the absence of the Attorney General did not impede the resolution of the dispute between AAI Limited, trading as GIO, and Evic. The court made orders accordingly, allowing the case to proceed without the need for the Attorney General's inclusion.

Orders