AAI Limited v Josipovic (No 2) - [2013] NSWSC 1577

Supreme Court

New South Wales

Medium Neutral Citation: AAI Limited v Josipovic (No 2) [2013] NSWSC 1577
Hearing dates: In chambers on the papers
Decision date: 01 November 2013
Jurisdiction: Common Law
Before: Campbell J
Decision:
(1) First defendant's application for indemnity costs is dismissed;
(2) Each party to bear its or her own costs of the application.

Catchwords: COSTS - offer of compromise purportedly made in accordance with r 20.26 Uniform Civil Procedure Rules 2005 (NSW) - application for indemnity costs pursuant to r 42.15A - whether offer made in public law claim in the Court's supervisory jurisdiction engages r 20.26 - whether an order dismissing the proceedings engages r 42.15A
Legislation Cited: Civil Procedure Act 2005 (NSW)
Motor Accidents Compensation Act 1999 (NSW)
Uniform Civil Procedure Rules 2005 (NSW)
Cases Cited: AAI Limited v Josipovic [2013] NSWSC 1524
Attorney-General (NSW) v Quin [1990] HCA 21; 170 CLR 1
Dawson v ACP Publishing Pty Ltd [2007] NSWSC 542
Morgan v Johnson (1998) 44 NSWLR 578
Whitney v Dream Developments Pty Ltd [2013] NSWCA 188
Category: Costs
Parties: AAI Ltd (plaintiff)
Biljana Josipovic (defendant)
Representation: Counsel:
MA Robinson SC (plaintiff)
JE Sexton SC with JK Trainor and J Lee (defendant)
Solicitors:
Curwoods Lawyers (plaintiff)
Gajic & Co (defendant)

File Number(s): 2013/140606

Judgment

In these proceedings an insurer challenged the validity of a certificate issued under s.94(4) Motor Accidents Compensation Act 1999 (NSW) (the Act) by a claims assessor of the Claims Assessment and Resolution Service in respect of her assessment of the first defendant's (the claimant) claim for damages for personal injury suffered in a motor accident.

The insurer's claims for relief were formulated in various ways in its amended summons. Essentially, it sought an order in the nature of certiorari setting aside the assessment certificate and a further order in the nature of mandamus remitting the claimant's application for reassessment according to law.

On 17th October 2013 I pronounced orders dismissing the proceedings and making the following order as to costs:

The plaintiff to pay the first defendant's costs of and incidental to the proceedings forthwith after they have been agreed or assessed.

My reasons are published with the medium neutral citation of [2013] NSWSC 1524.

As I pointed out at [10] of the principal judgment, the insurer's challenge to the validity of the certificate of assessment concerned the assessment made for future domestic assistance on a commercial basis. That head of damage was assessed at $75,996.60, in the context of a total assessment of $118,633.60 plus costs and disbursements (which the assessor allowed in the sum of $28,564.08).

As required by s.94(1)(b) the claims assessor made an assessment of the amount of damages, and in compliance with s.94(4) she issued the insurer and the claimant with a certificate as to the assessment, specifying the amount of damages and attaching a brief statement of her reasons for the assessment to the certificate (s.94 (5)).

By dint of s.95 of the Act, an assessment of the amount of…

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: [2013] NSWSC 1577
Decision Date: 01 November 2013

CaseChat Overview and Summary

The case of AAI Limited v Josipovic (No 2) involved the plaintiff, AAI Limited, and the defendant, Josipovic. The dispute originated from an offer of compromise made under rule 20.26 of the Uniform Civil Procedure Rules 2005 (NSW). The plaintiff sought indemnity costs pursuant to rule 42.15A after the defendant's application to dismiss the proceedings was successful. The primary legal issue the court had to address was whether an offer of compromise made in a public law claim within the court's supervisory jurisdiction could engage rule 20.26. Additionally, the court had to determine if an order dismissing the proceedings could engage rule 42.15A.

The court considered the nature of the public law claim and the applicability of rule 20.26, which deals with offers of compromise in civil proceedings. The court reasoned that while rule 20.26 generally applies to civil proceedings, its application to public law claims within the court's supervisory jurisdiction was less straightforward. The court found that the rule could apply if the public law claim had a significant private law component. Regarding rule 42.15A, the court examined whether the offer of compromise met the criteria for an indemnity costs order. The court concluded that the offer was not made in accordance with rule 20.26 and thus did not engage rule 42.15A.

In summary, the court held that the offer of compromise did not engage rule 20.26 because it was made in a public law claim within the court's supervisory jurisdiction without a significant private law component. Consequently, the order dismissing the proceedings did not engage rule 42.15A. The court dismissed the plaintiff's application for indemnity costs, highlighting the importance of the distinction between public and private law in the context of offers of compromise and costs orders.

Orders