Cowcher v Allianz Australia Insurance Limited (No.2)

[2019] NSWSC 1052

Supreme Court

New South Wales

Medium Neutral Citation:

Cowcher v Allianz Australia Insurance Limited (No.2) [2019] NSWSC 1052

Hearing dates:

On the papers

Date of orders:

19 August 2019

Decision date:

19 August 2019

Jurisdiction:

Common Law

Before:

Bellew J

Decision:

The plaintiff is to pay the first defendant’s costs, as agreed or assessed.

Catchwords:

PRACTICE AND PROCEDURE – Costs – Where the plaintiff was unsuccessful in judicial review proceedings – Where the plaintiff sought a certificate pursuant to the Suitors’ Fund Act 1951 – Where that Act grants power to issue a certificate to the respondent to a successful appeal – Whether the plaintiff was in the position of a “respondent” – Where her “appeal” had not been successful – Threshold requirements for the issue of a certificate not met – Application for certificate refused – Usual costs order made

Legislation Cited:

Suitors’ Fund Act 1951(NSW)

Cases Cited:

Allianz Australia Insurance Limited v Tarabay [2013] NSWSC 141; (2013) 62 MVR 537
Allianz Australia Insurance Limited v Ward & Ors [2010] NSWSC 720; (2010) 79 NSWLR 657; (2010) 57 MVR 327
Cahill v Insurance Australia Limited (No.2) [2019] NSWSC 597
CIC Allianz Australia Limited v McDonald & Ors [2012] NSWSC 887; (2012) 61 MVR 382
Cowcher v Allianz Australia Insurance Limited [2019] NSWSC 572.
GIO General Limited v Smith & Ors; Insurance Australia Limited t/as NRMA Insurance v Smith & Ors (No.2) [2011] NSWSC 998
IAG Limited v Riley [2013] NSWSC 684; (2013) 64 MVR 191
Insurance Australia Limited t/as NRMA Insurance v Banos (No.2) [2013] NSWSC 1668

Category:

Costs

Parties:

Sharon Cowcher – Plaintiff

 

Allianz Australia Insurance Limited – First defendant

 

Dr Mark Burns as the Approved Medical Assessor, appointed under s 59 of the Motor Accidents Compensation Act 1999 (NSW) – Second defendant

  The Proper Officer of the Motor Accidents Medical Assessment Service as appointed by SRIA – Third defendant

Representation:

Counsel:
C Hart – Plaintiff
J Catsanos – First defendant

  Solicitors:
Bale Boshev – Plaintiff
Moray and Agnew – First Defendant

File Number(s):

2018/390310

Publication restriction:

Nil

Judgment

INTRODUCTION

1. In these proceedings the plaintiff sought judicial review of the decision of the Proper Officer of the State Insurance Regulatory Authority to refuse her application for a review of a determination of a medical assessor. On 23 May 2019 I gave judgment dismissing the proceedings. [1] At the time of doing so, and in accordance with a request made by counsel for the plaintiff at the conclusion of the hearing, I reserved the question of costs and made orders for the provision of written submissions. Those submissions now having been received, this judgment deals with that question.

   1. See Cowcher v Allianz Australia Insurance Limited [2019] NSWSC 572.

2. Counsel for the plaintiff has accepted that costs should follow the event. [2] However, he has sought that I make an order granting the plaintiff a certificate pursuant to the Suitors’ Fund Act1951 (NSW) (“the Act”). The first defendant has chosen not to make any submissions regarding the issue of a certificate under the Act.

   2. See the plaintiff’s written submissions at (1).

The relevant legislation

3. Section 6(1) of the Act is in the following terms:

Costs of certain appeals

(1) If an appeal against the decision of a court:

(a) to the Supreme Court on a question of law or fact, or

(b) to the High Court from a decision of the Supreme Court on a question of law,

succeeds, the Supreme Court may, on application, grant to the respondent to the appeal or to any one or more of several respondents to the appeal an indemnity certificate in respect of the appeal.

4. The term “court” is defined in the Act as including “such tribunals or other bodies as are prescribed. [3]

   3. In s 2.

The submissions of the plaintiff

5. In written submissions, counsel for the plaintiff referred me to a number of authorities in which, he submitted, a certificate pursuant to the Act had been issued to an unsuccessful litigant in circumstances similar to the present. Counsel further submitted that each of those cases supported the proposition that the word “court” in s 6(1) of the Act included the Proper Officer or other relevant decision maker. The authorities to which I was referred included Allianz Australia Insurance Limited v Ward & Ors,[4] GIO General Limited v Smith & Ors; Insurance Australia Limited t/as NRMA Insurance v Smith & Ors (No.2), [5] Insurance Australia Limited t/as NRMA Insurance v Banos (No.2),[6] IAG Limited v Riley,[7] Allianz Australia Insurance Limited v Tarabay, [8] and CIC Allianz Australia Limited v McDonald & Ors. [9]

   4. [2010] NSWSC 720; (2010) 79 NSWLR 657; (2010) 57 MVR 327.

   5. [2011] NSWSC 998.

   6. [2013] NSWSC 1668.

   7. [2013] NSWSC 684; (2013) 64 MVR 191.

   8. [2013] NSWSC 141; (2013) 62 MVR 537.

   9. [2012] NSWSC 887; (2012) 61 MVR 382.

Consideration

6. I have had regard to the authorities to which I was referred. However, they do not address the particular circumstances of the present case, and indeed are distinguishable. Even if it is accepted that the proceedings before me were in the nature of an appeal against a decision of a court, s 6(1) of the Act permits the issue of a certificate if only if the appeal succeeds. The plaintiff, as I have noted, was not successful in the proceedings. That alone precludes the issue of a certificate. Further, s 6(1) confers a power to grant a certificate to the “respondent to the appeal”. Given that it was the plaintiff who brought these proceedings it could not be said that she is, for the purposes of s 6(1) of the Act, a respondent. It follows that in my view, the plaintiff has failed to meet the two thresholds imposed by s 6(1).

7. I am fortified in that view by the decision of Campbell J (to which I was not referred in submissions) in Cahill v Insurance Australia Limited (No.2). [10] In that case, his Honour dismissed a challenge by a plaintiff to a determination of a medical review panel, concluding:[11]

Even if it is accepted that the Review Panel was a court for the purposes of the Act, and judicial review proceedings, an appeal, the “appeal” has been unsuccessful in the Supreme Court and there is no power to grant a certificate. Moreover as the moving party in the proceedings the plaintiff cannot be equated with a respondent to an appeal.

10. [2019] NSWSC 597.

11. At [5].

8. The circumstances before his Honour were precisely the same as those now before me.

Order

9. For those reasons I make the following order:

1. The plaintiff is to pay the first defendant’s costs, as agreed or assessed.

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Endnotes