Dordevic v Moore
[2019] ACTSC 17
•8 February 2019
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | Dordevic v Moore |
Citation: | [2019] ACTSC 17 |
Hearing Date: | On the papers |
DecisionDate: | 8 February 2019 |
Before: | Burns J |
Decision: | See [6] |
Catchwords: | PROCEDURE – Costs – costs of application – application by plaintiff to be authorised to proceed with claim despite non-compliance with notice requirements – whether costs of that application be costs in the cause – parties invited to file written submissions – whether there was fault on both sides |
Legislation Cited: | Road Transport (Third Party Insurance) Act 2008 (ACT) ss 95, 85 |
Cases Cited: | Dordevic v Moore [2017] ACTSC 320; 12 ACTLR 282 |
Parties: | Vesna Dordevic (Plaintiff) Rachel Louise Moore (First Defendant) Kidane Belay (Second Defendant) Adam Radic (Third Defendant) Insurance Australia Limited Trading As NRMA Insurance (Fourth Defendant) |
Representation: | Counsel Ms K Musgrove (Plaintiff) Mr D Crowe (First, Second, Third and Fourth Defendants) |
| Solicitors Blumers Lawyers (Plaintiff) Moray and Agnew (First, Second, Third and Fourth Defendants) | |
File Number: | SC 320 of 2017 |
BURNS J
On 15 December 2017 I made orders under s 95(2)(c)(ii) of the Road Transport (Third Party Insurance) Act 2008 (ACT) authorising the plaintiff to proceed further with her claim despite her non-compliance with the notice requirements in s 85(2) of that Act: Dordevic v Moore [2017] ACTSC 320; 12 ACTLR 282. In my written reasons published that day, I indicated that I was minded to make an order that costs of that application be costs in the cause, but as I had not heard submissions on the issue I invited the parties to file written submissions on the question of costs within 14 days. Both the plaintiff and defendants filed submissions by the end of January 2018. I was subsequently misinformed that the matter had resolved, or may be in the process of resolving, and I did not address the submission of the parties or make formal orders, for which I apologise. I note that, in any event, preparation of the matter for trial has progressed.
The plaintiff submitted that in the light of her success in the application, she should receive an order for costs in her favour, to be agreed or assessed at the conclusion of the proceedings.
The defendants (effectively Insurance Australia Limited) contended that a costs order should be made in its favour, but it would not oppose an order that such costs not be assessed or payable until the conclusion of the proceeding.
In my opinion there was fault on both sides with regard to the subject matter of the application. The plaintiff, by her lawyer, did not proffer any real excuse for her failure to comply with the requirements of the Act until she swore on affidavit in the application on 11 October 2017. The information in that affidavit was supported and supplemented by the affidavit of the plaintiff’s lawyer, also affirmed on 11 October 2017.
I accept that prior to receipt of that material, no reasonable explanation for the plaintiff’s failure to comply had been offered by the plaintiff. In my opinion, that position changed after the defendants received the affidavits to which I have referred. The approach of the defendants in continuing to actively oppose the application after that time was unreasonable.
In my opinion, the just order is that there be no order as to costs of the application.
| I certify that the preceding six [6] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Burns. Associate: Date: 8 February 2019 |
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