Allianz Australia Insurance Limited v Habib (No 2)

Allianz Australia Insurance Limited brought an action against Habib, seeking judicial review of an assessment made by the Compensation to Asbestos Victims (CARS) scheme. The insurer contended that the CARS assessment undervalued the claim, and the court was tasked with determining the appropriate costs under the Suitors’ Fund Act. The central legal issues revolved around the interpretation of the Suitors’ Fund Act, specifically whether the CARS assessor constituted a "court" and whether the judicial review proceedings were considered proceedings by way of appeal. The court had to decide whether Allianz was entitled to full costs or if a reduced amount was more appropriate given the limited success in the proceedings.

The court examined the relevant provisions of the Suitors’ Fund Act and considered the nature of the CARS assessment process. It held that the CARS assessor did not function as a court for the purposes of the Act, and thus, the usual principles governing costs in judicial review proceedings did not strictly apply. The court also determined that the judicial review proceedings were not an appeal but rather a review of the CARS assessment. Consequently, the court found that Allianz was only partially successful in its claims, and therefore, it was appropriate to award costs on a more limited scale. The court concluded that Allianz should recover 40% of its costs, reflecting the partial success in the proceedings.

The court's decision was grounded in the specific circumstances of the case and the limited scope of Allianz's success. By awarding 40% of the costs, the court balanced the principle of costs following the event with the reality that Allianz had not achieved all the relief sought. This nuanced approach ensured that the costs awarded were proportionate to the outcome achieved. The judgment provides clarity for future cases involving similar judicial review proceedings and the application of the Suitors’ Fund Act to the CARS scheme.