Insurance Australia Limited t/as NRMA Insurance v Rababeh (No 2)

[2022] NSWSC 991

Supreme Court

New South Wales

Medium Neutral Citation:

Insurance Australia Limited t/as NRMA Insurance v Rababeh (No 2) [2022] NSWSC 991

Hearing dates:

By way of written submissions

Date of orders:

25 July 2022

Decision date:

25 July 2022

Jurisdiction:

Common Law

Before:

Harrison AsJ

Decision:

(1) The first defendant is to pay the plaintiff’s costs of the proceedings.

(2) The plaintiff is issued a certificate pursuant to s 6 of the Suitors’ Fund Act 1951 (NSW).

Catchwords:

COSTS – Suitors’ fund – Whether cost fund certificate should be granted – Certificate granted

Legislation Cited:

Suitor’s Fund Act 1951 (NSW)

Cases Cited:

Insurance Australia Limited t/as NRMA Insurance v Rababeh [2022] NSWSC 942

Lou v IAG Limited t/as NRMA Insurance (2019) 101 NSWLR 606; [2019] NSWCA 319

Category:

Costs

Parties:

Insurance Australia Limited t/as NRMA Insurance (Plaintiff)
Dana Rababeh (First Defendant)
The President of the Personal Injury Commission of New South Wales (Second Defendant)
Maurice Castagnet, in his capacity as a Member of the Personal Injury Commission of New South Wales (Third Defendant)

Representation:

Counsel:
K. Rewell SC (Plaintiff)
M. Robinson SC with J. Gumbert (First Defendant)

Solicitors:
Hall & Wilcox Lawyers (Plaintiff)
Harrow Legal (First Defendant)

File Number(s):

2021/286768

Publication restriction:

Nil

Judgment

1. HER HONOUR: This judgment concerns costs.

2. On 15 July 2022, I handed down judgment in Insurance Australia Limited t/as NRMA Insurance v Rababeh [2022] NSWSC 942. I made orders that the matter be remitted to the Personal Injury Commission of New South Wales to be determined in accordance with law. I also ordered that costs be reserved. The parties have since agreed that the first defendant is to pay the plaintiff’s costs.

3. The first defendant has sought that her costs be paid out of the Suitor’s fund. She relied on written submissions.

The Suitor’s fund

4. Relevantly, sections 2 and 6 of the Suitor’s Fund Act 1951 (NSW) read:

“2   Definitions

(1) In this Act, unless the context or subject matter otherwise indicates or requires:

Appeal includes any motion for a new trial and any proceeding in the nature of an appeal.

…

Court includes such tribunals or other bodies as are prescribed.

…

6   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

…

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.

…

6C Payments not otherwise authorised by this Act

(1) If:

(a) a party to an appeal or other proceedings incurs or is liable to pay costs in the appeal or proceedings,

(b) the party is not otherwise entitled to a payment from the Fund in respect of the costs, and

(c) the Director-General is of the opinion that a payment from the Fund in respect of the costs, although not authorised by section 6, 6A or 6B, would be within the spirit and intent of those sections,

the Director-General may, with the concurrence of the Attorney General, pay from the Fund to the party such amount towards the costs as is assessed by the Director-General having regard to the circumstances of the case.

(2) A payment under this section shall not exceed $10,000.”

5. In Lou v IAG Limited t/as NRMA Insurance (2019) 101 NSWLR 606; [2019] NSWCA 319 (“Lou”) the Court of Appeal stated at [63] and [85]:

“[63]   In my view Campbell J was correct in Banos to conclude that the conclusive nature of the proceedings before the claims assessor helped characterise the nature of the claims assessor’s decision as one that falls within the relevant definition of a “court or tribunal” for the purposes of the Suitors’ Fund Act. The decision of the Proper Officer under s 62 of the Motor Accidents Compensation Act the subject of Henderson is distinguishable. Although CARS does not have a judicial head, all CARS assessors are legally qualified and exercise power by determining substantive legal rights. A claims assessor has a quasi-judicial role which is quite different to the limited “gatekeeper” function of a Proper Officer of the Medical Assessment Service, the subject of the Court’s decision in Henderson.”

6. The Court of Appeal in Lou granted leave to appeal from the refusal to grant a Suitors’ Fund Certificate, set aside an order of the primary judge refusing to grant the certificate, and in lieu thereof ordered that Ms Lou have a certificate under s 6 of the Suitors’ Fund Act.

7. As in Lou, the matter before this Court involved a Judicial Review where a decision of a Tribunal Member was set aside and remitted for redetermination. It is my view that in these circumstances the plaintiff is entitled to have a certificate under s 6 of the Suitors’ Fund Act.

The Court orders:

1. The first defendant is to pay the plaintiff’s costs of the proceedings.

2. The plaintiff is issued a certificate pursuant to s 6 of the Suitors’ Fund Act 1951 (NSW).

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