Christina Kim Andrews v Allianz Australia Insurance Ltd (No 2)

[2011] NSWDC 117

District Court

New South Wales

Medium Neutral Citation:	Christina Kim Andrews v Allianz Australia Insurance Ltd (No 2) [2011] NSWDC 117
Decision date:	24 March 2011
Jurisdiction:	Civil
Before:	Cogswell SC DCJ
Decision:	Plaintiff to pay the defendant's costs of the proceedings on 16.12.10 and each party to bear its own costs of the proceedings on 17.2.11
Catchwords:	CIVIL LAW - costs - who should pay for various days
Category:	Costs
Parties:	Christina Kim Andrews Allianz Australia Insurance Ltd (as agent for NSW Self Insurance Corporation and TAC Fund)
Representation:	Mr Petrushnko for Ms Andrews Mr Stanton for Allianz
File Number(s):	2010/239933

Judgment

1. Christina Kim Andrews was successful in her application to extend time for her to sue Allianz Australia Insurance Limited regarding a car accident which occurred in 1980. In a judgment which I delivered on 7 March 2011, I ordered the limitation period be extended. That order was made under s 60G of the Limitation Act 1969. This morning I specified that the period be extended to 15 April 2011.

2. This morning I have heard from Mr Stanton and from Mr Petrushnko regarding the costs of Ms Andrews' application. I have been assisted both by Mr Stanton and Mr Petrushnko in oral submissions and by Mr Stanton and Ms M Campbell in their respective written submissions.

3. The case occupied three days. Two of those days occurred towards the end of last term, namely 16 and 17 December 2010. The matter concluded with further evidence and addresses on a third day which was 17 February 2011. I have already ordered Ms Andrews to pay Allianz's costs for the second day 17 December 2010 for reasons which I have already given. I have to decide who will pay the costs of the first and the third day.

4. I have determined that Ms Andrews' should pay Allianz's costs for the first day. I have little doubt in reaching that conclusion because, as Mr Stanton points out, the relief sought in the summons originally filed was not pursued. Ultimately, the relief sought by Ms Campbell on behalf of her client focused on one provision of the Limitation Act rather than the several provisions which were originally relied upon.

5. The state of Ms Andrews' case was in some uncertainty at the end of the first day. That was, as Mr Stanton points out because she did not have in her possession certain documents which were in the possession of Allianz. Mr Petrushnko points out that had Allianz produced these documents then the plaintiff would have been able to proceed on the first day. I do not accept that submission. In my opinion, it was for a plaintiff such as Ms Andrews in a case such as this, to use the procedures of the court to obtain from the defendant in such proceedings documents in advance of any hearing. For those reasons I propose to order Ms Andrews in due course to pay the costs of the first day.

6. I propose that each party bear their own costs of the last day. There was in my opinion nothing amounting to unreasonable conduct on the part of Allianz in this case. However, on the other hand, Ms Andrews has been successful in her application. The issues taken by Mr Stanton in cross examination of Ms Andrews and in submissions to me were quite reasonable but ultimately his client was not successful and Ms Andrews was.

7. On the other hand, it was Ms Andrews who was seeking the extension of time from the court. As Mr Petrushnko pointed out, she had acted quickly. As soon as she realised and received appropriate advice she acted. Although I can see an argument for a defendant in a case such as this to pay the plaintiff's costs - at least for the last day in this case - or for the plaintiff's costs to be costs in the cause, I regard the second option as effectively an order that Allianz pay Ms Andrews' costs because success on liability is almost certain. She was a child passenger in the back seat of a car. However, on the other hand, it was not obvious until the last day that the focus of the argument was on s 60G of the Act.

8. In all the circumstances, I think it appropriate that each party pay the costs of the last day.

9. Accordingly, my order is that the plaintiff pay the defendant's costs of the proceedings on 16 December 2010 and that each party bear their own costs of the proceedings on 17 February 2011.

MFI # FILLIN "NUMBER space DESCRIPTION" \* MERGEFORMAT 9 MR STANTON'S SUBMISSIONS

MFI #10 MS CAMPBELL'S SUBMISSIONS

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Decision last updated: 31 August 2011