Cic Allianz Insurance Limited v Pillay (No 2)

[2018] NSWSC 305

Supreme Court

New South Wales

Medium Neutral Citation:	CIC Allianz Insurance Limited v Pillay (No 2) [2018] NSWSC 305
Hearing dates:	Written submissions
Date of orders:	13 March 2018
Decision date:	13 March 2018
Jurisdiction:	Common Law
Before:	Bellew J
Decision:	1. The first defendant is to pay the costs of the plaintiff, as agreed or assessed.
Catchwords:	COSTS – Where plaintiff was successful in application for judicial review of the decision of a Medical Review Panel – Whether costs should follow the event – Whether costs should be reserved pending the outcome of the decision of new Medical Review Panel to which the matter will be referred – No reason why costs should not follow the event – No point of principle
Cases Cited:	CIC Allianz Insurance Limited v Pillay [2017] NSWSC 1639
Category:	Costs
Parties:	CIC Allianz Insurance Limited (Plaintiff) Sagaren Pillay (First Defendant) State Insurance Regulatory Authority (Second Defendant) The Medical Assessors Review Panel comprising Assessors Christopher Oates, Geoffrey Stubbs and Clive Kenna (Third Defendant)
Representation:	Counsel: J Gumbert (Plaintiff) J Turnbull SC and H Ward (First Defendant)   Solicitors: McInnes Wilson Lawyers (Plaintiff) AM Legal (First Defendant) Submitting appearance (Second Defendant) Submitting appearance (Third Defendant)
File Number(s):	2017/155126
Publication restriction:	Nil

Judgment

1. In these proceedings CIC Allianz Insurance Limited (“the plaintiff”) was successful in an application for judicial review of a decision of a Medical Review Panel (“the panel”) which had been appointed by the State Insurance Regulatory Authority to undertake a review of injuries suffered by the first defendant in a motor vehicle accident.

2. In a judgment delivered on 4 December 2017 I concluded that the panel had erred in a number of respects. I made orders setting aside the panel’s decision and remitting the matters which were the subject of their determination to a differently constituted panel to be determined according to law: CIC Allianz Insurance Limited v Pillay [2017] NSWSC 1639. On that occasion I ordered that, absent an agreement being reached by the parties, short written submissions as to costs should be filed. This judgment deals with that issue.

3. The plaintiff submitted there was no reason why costs should not follow the event. In advancing that submission, the plaintiff emphasised that it had been successful in respect of each of the grounds of review which were advanced, in circumstances where the relief sought had been opposed by the first defendant. Anticipating the position of the first defendant, the plaintiff submitted that there was no utility in costs being reserved pending the determination of the relevant issues by a newly constituted panel.

4. The first defendant submitted that the question of costs should be reserved until such time as the outcome of the determination by the newly constituted panel was known. It was submitted that there was a possibility that such panel would ultimately reach the same conclusion as the previous panel, in which case the first defendant foreshadowed that it would seek an order that the plaintiff pay his costs of the proceedings.

5. Irrespective of what conclusion a differently constituted panel might reach, it remains the case that, as the plaintiff argued, the panel to which the matter was first referred erred in a number of separate respects. That fact will not be altered by the outcome of any further assessment, irrespective of what that outcome might be. In the proceedings before me, the defendant argued strongly against a conclusion that the panel had erred, but was wholly unsuccessful in doing so. In these circumstances, there is no proper basis for reserving the question of costs, and there is no reason why costs should not follow the event.

6. Accordingly, I order that the first defendant pay the costs of the plaintiff, as agreed or assessed.

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