Azzopardi v Mahajan (No 2)

[2023] NSWDC 529

District Court

New South Wales

Medium Neutral Citation:

Azzopardi v Mahajan (No 2) [2023] NSWDC 529

Hearing dates:

On the papers

Date of orders:

01 December 2023

Decision date:

01 December 2023

Jurisdiction:

Civil

Before:

Strathdee DCJ

Decision:

I revoke order 2 of 21 September 2023 regarding costs and in lieu thereof I order that the plaintiff’s costs of the Motion be costs in the cause.

Catchwords:

MOTOR ACCIDENTS COMPENSATION – costs

Legislation Cited:

Motor Accidents CompensationAct 1999 (NSW)

Uniform Civil Procedure Rules 2005 (NSW)

Cases Cited:

Azzopardi v Mahajan [2023] NSWDC 406

Category:

Costs

Parties:

Jane Rita Azzopardi (Plaintiff)
Rahul Mahajan (Defendant)

Representation:

Counsel:
Mr A Canceri (for the Plaintiff)
Mr A Bowen (for the Defendant)

Solicitors:
Galluzzo Lawyers (for the Plaintiff)
Barry Nilsson (for the Defendant)

File Number(s):

2023/181122

JUDGMENT

1. The proceedings arise from a motor vehicle accident that occurred on 20 December 2016. Jane Rita Azzopardi (‘plaintiff’) made a claim for personal injuries damages pursuant to the Motor Accidents CompensationAct 1999 (NSW) (‘MACA’).

2. I heard the proceedings on the Notice of Motion on 21 September 2023, and I gave judgment on the Motion on 4 October 2023 in Azzopardi v Mahajan [2023] NSWDC 406, and made the following orders:

1. Pursuant to s 62(1)(b) of the Motor Accidents Compensation Act 1999 (NSW), the plaintiff’s left sacral alar fracture caused by the motor accident on 20 December 2016 be referred to the Personal Injury Commission of New South Wales for further medical assessment of the issue as to the degree of permanent impairment flowing from the said left sacral alar fracture.

2. Costs of the motion be costs in the cause.

3. The issue of costs had not been agitated at that point, and I requested written submissions on the question, which both parties helpfully supplied. The costs issue has been determined on the papers.

4. The plaintiff’s submissions rely on the fact that the plaintiff was successful on the Motion and the general rule that costs follow the event, unless it appear that some other order should be made as to the whole or any part of the costs: r 42.1 of the Uniform Civil Procedure Rules 2005 (NSW). Despite the general rule that costs follow the event, and the plaintiff was successful on the motion she nevertheless seeks and order that her costs be costs in the cause.

5. The defendant submits that the appropriate order is that each party pay their own costs for the following reasons:

1. The defendant accepted liability for the accident, as such the order contended for by the plaintiff, that costs be costs in the cause, is in effect for the defendant to pay the costs of the Motion.

2. The plaintiff did not seek a review of the MAS Certificate of Dr Berry dated 15 November 2022 as she was entitled to do pursuant to s 63 of the MACA.

3. The outcome of an application under s 63 is now unknown, but the defendant submits that it would have involved substantially less costs than the application before this Court whilst still preserving her rights under s 62 of the MACA if required.

6. The plaintiff has responded to these assertions in her written submissions.

7. The issue of whether Assessor Berry was in error was examined in the hearing of the Motion, and I accepted that the plaintiff’s solicitor acted prudently in obtaining a refresher report which ultimately revealed the error.

8. Having had regard to all of the submissions put before me by the parties, I am of the view that the appropriate order is that costs of the Motion be costs in the cause.

Order

9. I revoke order 2 of 21 September 2023 regarding costs and in lieu thereof I order that the plaintiff’s costs of the Motion be costs in the cause.