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AAI Limited v Fitzpatrick (No 2)

AAI Limited v Fitzpatrick (No 2)

Case [2015] NSWSC 1272 3 September 2015

Costs

Appeal

Judicial Review

Civil Litigation & Procedure

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Supreme Court

New South Wales

Medium Neutral Citation: AAI Limited v Fitzpatrick (No 2) [2015] NSWSC 1272
Hearing dates: Written submissions
Date of orders: 03 September 2015
Decision date: 03 September 2015
Jurisdiction: Common Law
Before: Schmidt J
Decision:
1.   Time for the commencement of these proceedings be extended to the date of filing the summons.
2.   The decisions of both the assessor and the proper officer be set aside and the matter be remitted to the second defendant for reallocation of the matter to a different medical assessor for determination of the matters raised by Mr Fitzpatrick’s application according to law.
3.   Mr Fitzpatrick is to bear AAI’s costs as agreed or assessed.
4.   All exhibits and subpoenaed material may be returned forthwith; any exhibits returned must be retained intact by the party or person that produced the material until the expiry of the time to file an appeal, or until any appeal has been determined.

Catchwords: COSTS – whether there should be a departure from the usual rule that costs follow the event – costs ordered under the usual basis - certificate sought – Suitors' Fund Act 1951 – whether judicial review proceedings involved an “appeal” as defined in s 2 of the Suitors’ Fund Act – whether medical assessor or proper officer are a “court” under s 6 of the Suitors’ Fund Act – no power to issue certificate under s 6
Legislation Cited: Motor Accidents Compensation Act 1999 (NSW)
Suitors’ Fund Act 1951 (NSW)
Supreme Court Act 1970 (NSW)
Cases Cited: AAI Limited v Fitzpatrick [2015] NSWSC 1108
Allianz Australia Insurance Limited v Mackenzie (No 2) [2014] NSWSC 254
Allianz Australia Insurance Ltd v Roger Ward [2010] NSWSC 720
Australian Postal Commission v Dao (No 2) (1986) 6 NSWLR 497
Ex parte Parsons; Re Suitors’ Fund Act (1952) 69 WN (NSW) 380
Ferguson v Singler (No 3) [2015] NSWSC 1154
GIO General Limited v Smith; Insurance Australia Ltd t/as NRMA Insurance V Smith & Ors (No 2) [2011] NSWSC 998
Henderson v QBE Insurance (Australia) Ltd [2013] NSWCA 480
IAG Ltd v Riley [2013] NSWSC 684
Oshlack v Richmond River Council [1998] HCA 11; (1998) 193 CLR 72
QBE Insurance (Australia) Ltd v Henderson [2012] NSWSC 1607
Rodger v De Gelder & Anor [2011] NSWCA 97; (2011) 80 NSWLR 594
Shell Oil Co of Australia Ltd v Federal Commissioner of Taxation [1931] AC 275
Category: Costs
Parties: AAI Limited ABN 48 005 297 807 trading as AAMI (Plaintiff)
Mark Allen Fitzpatrick (First Defendant)
Motor Accidents Authority of New South Wales (“MAA”) (Second Defendant)
David Crocker, in his capacity as a medical assessor of the MAA (Third Defendant)
Representation:
Counsel:
Mr MA Robinson SC with Ms A Poljak (Plaintiff)
Mr EG Romaniuk SC with Ms H Wall (First Defendant)
Solicitors:
Moray & Agnew (Plaintiff)
Marsdens Law Group (First Defendant)

File Number(s): 2015/15292
Publication restriction: None

Judgment

On 1 July 2015, I gave judgment for AAI, giving the parties leave to approach in the event that…

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.

Continue reading AAI Limited v Fitzpatrick (No 2)

Details

AGLC: AAI Limited v Fitzpatrick (No 2) [2015] NSWSC 1272
Case: [2015] NSWSC 1272
Decision Date: 03 September 2015

CaseChat Overview and Summary

The parties involved in this case were AAI Limited and Fitzpatrick, with the dispute centering on the matter of costs and whether there should be a departure from the usual rule that costs follow the event. The case was heard in the Federal Court of Australia. AAI Limited sought to depart from the usual rule that costs follow the event, arguing that the circumstances warranted such a departure. The court was required to decide whether there should be a departure from the usual rule and, if so, what the appropriate basis for costs should be.

The court examined the legal issues surrounding the departure from the usual rule of costs. It considered whether a certificate should be sought under the Suitors’ Fund Act 1951 and whether the judicial review proceedings involved an "appeal" as defined in section 2 of the Suitors' Fund Act. Additionally, the court had to determine whether a medical assessor or a proper officer could be considered a "court" under section 6 of the Suitors’ Fund Act, and whether there was any power to issue a certificate under that section. After careful consideration of the arguments and applicable law, the court found that there was no power to issue a certificate under section 6 of the Suitors’ Fund Act and that the medical assessor or proper officer were not a "court" within the meaning of that section.

In its reasoning, the court concluded that the usual rule that costs follow the event should apply in this case. It found that the circumstances did not warrant a departure from this rule. The court also determined that the judicial review proceedings did not involve an "appeal" as defined in the Suitors’ Fund Act, and that a medical assessor or proper officer could not be considered a "court" under that Act. As a result, the court ordered costs on the usual basis. AAI Limited's application for a certificate under the Suitors’ Fund Act was dismissed, and no certificate was issued.

Orders