Insurance Australia Limited v Albrecht - [2015] ACTSC 68

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	Insurance Australia Limited & Anor v Albrecht
Citation:	[2015] ACTSC 68
Hearing Date(s):	13 March 2015
DecisionDate:	25 March 2015
Before:	Mossop M
Decision:	See [82]
Category:	Principal Judgment
Catchwords:	STATUTORY INTERPRETATION – provisions that limit recovery of costs – effect of Road Transport (Third-Party Insurance) Act 2008 (ACT) s 155 – whether the phrase “the court awards” includes judgment entered by consent – it does
Legislation Cited:	Legislation Act 2001 (ACT) Personal Injuries Proceedings Act 2002 (Qld) Road Transport (Third-Party Insurance) Act 2008 (ACT) Road Transport (Third-Party Insurance) Amendment Act 2012 (ACT) Road Transport (Third-Party Insurance) Amendment Act 2012 (No 2) (ACT) Road Transport (Third-Party Insurance) Bill 2007 (ACT)
Cases Cited:	Alcan (NT) Alumina Pty Ltd v Territory Revenue (2009) 239 CLR 27 Allsop v Federal Commissioner of Taxation (1965) 113 CLR 341 Amos v Brisbane City Council [2005] QCA 433 CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384 Haureliuk v Furler [2012] ACTCA 11 Kinch v Walcott [1929] AC 482 McIntosh v Hikechukwu [2011] ACTSC 131 McLaurin v Federal Commissioner of Taxation (1961) 104 CLR 381 Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 Racic v Haltiner (2010) 4 ACTLR 224 State of Western Australia v Fazeldean (No 2) (2013) 211 FCR 150 Zardo v Ivancic [2004] ACTCA 11
Parties:	Insurance Australia Limited t/as NRMA Insurance ACN 000 016 722 (First Plaintiff) Ivan Habus (Second Plaintiff) Jeffrey Albrecht (Defendant)
Representation:	Counsel: Mr K Rewell SC (Plaintiffs) Mr R Crowe SC (Defendant)
Solicitors: Moray & Agnew (Plaintiffs) Maliganis Edwards Johnson (Defendant)
File Number(s):	SC 47 of 2015

By originating application filed 9 February 2015 the plaintiffs seek a declaration that s 155(3)(c) of the Road Transport (Third Party Insurance) Act 2008 (ACT) (RT Act) applies to the assessment of costs referred to in a consent judgment entered in proceedings in the ACT Magistrates Court. The first plaintiff is the compulsory third-party insurer of the second plaintiff.

The defendant was the plaintiff in the Magistrates Court proceedings and sought damages from the first and second plaintiff arising out of a motor vehicle accident.

I will refer to the plaintiffs in these proceedings as the NRMA and I will refer to the defendant as Mr Albrecht.

Relevant facts

On 21 October 2010 Mr Albrecht and the second plaintiff were involved in a motor vehicle accident.

On 12 November 2010 documents giving notice of the claim were served by Mr Albrecht’s solicitor on the NRMA.

On 26 July 2011 the NRMA admitted breach of duty of care by the second plaintiff. That admission had the effect of confirming Mr Albrecht’s cause of action and hence extending the limitation period under s 16B of the Limitation Act 1985 (ACT) until 26 July 2014: Casey v Alcock (2009) 3 ACTLR 1.

On 8 July 2014 Mr Albrecht commenced proceedings in the ACT Magistrates Court. At the time of commencing those proceedings the parties had…

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.

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Details

Case: [2015] ACTSC 68
Decision Date: 25 March 2015

CaseChat Overview and Summary

The parties in this case were Insurance Australia Limited and Albrecht, and the dispute was about the interpretation of certain provisions of the Road Transport (Third-Party Insurance) Act 2008 (ACT). The court had to decide whether the phrase “the court awards” in the statute included judgment entered by consent. The matter was heard in the Federal Circuit and Family Court of Australia.

The primary legal issue the court addressed was the interpretation of the statutory phrase “the court awards” in the context of the recovery of costs under the Road Transport (Third-Party Insurance) Act 2008 (ACT) s 155. The court had to determine if this phrase included judgment entered by consent, which would have implications for the extent to which costs could be recovered by the parties involved.

The court examined the statutory language and found that the phrase “the court awards” included judgment entered by consent. The court reasoned that the phrase was broad enough to encompass any formal order made by the court, including judgments entered by consent. This interpretation was consistent with the purpose of the statute, which aimed to provide a clear framework for the recovery of costs in road transport insurance cases. The court held that the statutory provisions limiting the recovery of costs applied equally to judgments entered by consent as they did to judgments made after a contested hearing.

The final orders of the court were that the phrase “the court awards” in Road Transport (Third-Party Insurance) Act 2008 (ACT) s 155 includes judgment entered by consent. This interpretation ensures that the statutory limits on cost recovery apply uniformly, regardless of the method by which the judgment is obtained.

Orders

Orders of the court

See [82]

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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