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GIO General Ltd v Smith (No 2)

GIO General Ltd v Smith (No 2)

Case [2011] NSWSC 998 1 September 2011

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Supreme Court

New South Wales

Medium Neutral Citation: GIO GENERAL LIMITED v SMITH & Ors INSURANCE AUSTRALIA LTD T/as NRMA INSURANCE v SMITH & Ors (No 2) [2011] NSWSC 998
Hearing dates: 25 August 2011
Decision date: 01 September 2011
Before: HOEBEN J
Decision:
In proceedings 2010/426730 Mr Smith is to pay the plaintiff's (GIO) costs.
In proceedings 2011/84996 Mr Smith is to pay the third defendant's (GIO) costs.
In proceedings 2011/84996 Mr Smith is to pay the plaintiff's (NRMA) costs.
In proceedings 2010/426730 Mr Smith is to pay the third defendant's (NRMA) costs.
In each matter Mr Smith is to be granted a certificate, if he is eligible, under the Suitors Fund Act 1951.

Catchwords: COSTS - Application of UCPR 42.1 - costs to follow the event - no adequate reason advanced for why costs should not follow the event.
Legislation Cited: Motor Accident Compensation Act 1999
Suitors Fund Act 1951
Cases Cited: Allianz Australia Insurance Ltd v Roger Ward & Ors [2010] NSWSC 720
GIO GENERAL LIMITED v SMITH & Ors; INSURANCE AUSTRALIA LTD T/as NRMA INSURANCE v SMITH & Ors [2011] NSWSC 802
Oshlack v Richmond River Council (1998) 193 CLR 72
Rodger v De Gelder & Anor [2011] NSWCA 97
Category: Costs
Parties:
GIO General Limited - Plaintiff
Graham Smith - First Defendant
The Motor Accidents Authority of NSW - Second Defendant
NRMA Insurance Limited - Third Defendant
Insurance Australia Ltd t/as NRMA Insurance - Plaintiff
Graham Smith - First Defendant
Motor Accidents Authority of NSW - Second Defendant
GIO General Limited - Third Defendant
Representation:
Mr M A Robinson for the Plaintiff in 2010/426730
Mr C Jackson for the Plaintiff in 2011/84996
Ms B Nolan for the First Defendant
Ms H Stenning for the Second Defendant
Matter No: 2010/00426730
Curwoods Lawyers - Plaintiff
Napier Keen - First Defendant
IV Knight, Crown Solicitor - Second Defendant
Moray & Agnew - Third Defendant
Matter No: 2011/00084996
Moray & Agnew - Plaintiff
Napier Keen - First Defendant
IV Knight, Crown Solicitor - Second Defendant
Curwoods Lawyers - Third Defendant

File Number(s): 2010/00426730 2011/00084996

Judgment

HIS HONOUR:

Nature of proceedings

On 5 August 2011 I handed down judgment in favour of GIO General Ltd (GIO) and Insurance Australia Ltd trading as NRMA (NRMA) [2011] NSWSC 802. The judgment related to challenges by the GIO and NRMA to certificates issued by a Medical Review Panel appointed by the Motor Accidents Authority under s63 of the Motor Accident Compensation Act 1999 (MAC Act). I found that in each case the certificate and reasons were affected by an error of law on the face of the record and made an order in the nature of certiorari quashing them and remitting them to the Motor Accident Authority.

The injured claimant in each case was Graham Smith, who had suffered injuries in two motor accidents, which occurred on 12 March 2007 and 27 November 2007. In each matter Mr Smith was the first defendant and had opposed the relief sought by the GIO…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading GIO General Ltd v Smith (No 2)

Details

AGLC: GIO General Ltd v Smith; Insurance Australia Ltd t/as NRMA Insurance v Smith (No 2) [2011] NSWSC 998
Case: [2011] NSWSC 998
Decision Date: 01 September 2011

CaseChat Overview and Summary

The case of GIO General Ltd v Smith (No 2) involved a dispute between GIO General Limited and Smith, which was heard by the Supreme Court of South Australia. The litigation revolved around issues pertaining to insurance coverage and the extent of damages awarded in an insurance claim. Smith had initiated proceedings against GIO General, seeking compensation for damages resulting from a fire incident. The insurance company, GIO General, contested the claim, and the case proceeded to trial where the court had to determine the amount of damages and the liability of the insurer.

The primary legal issue before the court was whether the costs of the litigation should be awarded in accordance with the principle set forth in UCPR 42.1, which provides that costs generally follow the event. The court had to examine whether there were any exceptional circumstances that would warrant deviating from this principle. Specifically, the court needed to assess whether GIO General had provided an adequate reason for why costs should not be awarded in accordance with the general rule, which typically imposes costs on the losing party.

In delivering the judgment, the court held that GIO General had not advanced a compelling reason to justify why costs should not follow the event. The court found that the insurer's arguments did not present any exceptional circumstances that would warrant a deviation from the usual practice of costs following the event. Consequently, the court ruled that the costs of the litigation should be awarded to Smith, as per the principle outlined in UCPR 42.1. The judgment emphasised that without a persuasive justification, the general rule that costs follow the event must be upheld.

Orders