SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | Insurance Australia Limited v Mannall |
Citation: | [2017] ACTSC 368 |
Hearing Date: | 5 December 2017 |
DecisionDate: | 5 December 2017 |
ReasonsDate: | 6 December 2017 |
Before: | McWilliam AsJ |
Decision: | See [46] |
Catchwords: | PRACTICE AND PROCEDURE – Application for leave to discontinue proceedings – where no disadvantage or irremediable injustice – whether indemnity costs appropriate |
Legislation Cited: | Court Procedures Act 2004 (ACT) s 5A Road Transport (General) Act 1999 (ACT) Court Procedures Rules 2006 (ACT) r 1160 |
Cases Cited: | Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 Council of the Municipality of Botany v Secretary, Department of the Arts, Sport, the Environment, tourism and the Territories (1992) 34 FCR 412 Trade Practices Commission v Manfal Pty Ltd & Ors (No 3) (1991) 33 FCR 382 |
Parties: | Insurance Australia Limited t/as NRMA Insurance ACN 000 016 722 (Plaintiff) David John Mannall (First Defendant) Malcolm David Howard (Second Defendant) |
Representation: | Counsel P Deakin QC with J Michie (Plaintiff) C Bridge SC (First Defendant) P Woulfe (Second Defendant) |
| Solicitors Moray & Agnew (Plaintiff) Snedden Hall & Gallop (First Defendant) ACT Government Solicitor (Second Defendant) | |
File Number: | SC 344 of 2017 |
On 5 December 2017, I granted an application pursuant to r 1160 of the Court Procedures Rules 2006 (Rules) for leave to discontinue proceedings brought by Insurance Australia Limited t/a NRMA Insurance (the Insurer), upon an undertaking by it, through its legal representative, not to commence proceedings agitating the same or substantially the same relief, and made a further order that the Insurer pay the defendants’ costs. These are my reasons for doing so.
Nature of the proceedings
The originating application sought declaratory relief that a particular motor vehicle accident did not fall within the definition of a motor accident as defined by s 7 of the Road Transport (Third Party Insurance) Act 2008 (ACT) (Act).
The accident occurred at approximately 5pm on 29 October 2014, along a footpath said to have been located within the ACTION Bus Depot in Belconnen. The first defendant was walking on the footpath and was injured in that accident. The second defendant was the driver of the vehicle that struck the first defendant as he reversed his company vehicle from where it was parked.
The…
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- Case
- [2017] ACTSC 368
- Decision Date
CaseChat Overview and Summary
The court was required to decide whether the plaintiff's application for leave to discontinue should be granted, and if so, whether it should be granted on terms that required the plaintiff to pay the defendants' costs. The second defendant argued that an order for indemnity costs was appropriate, while the plaintiff contended that ordinary costs would suffice. The court needed to weigh the principles of fairness and the primary objective of the court to facilitate just, quick, and efficient resolution of disputes, as outlined in the Court Procedures Act 2004 (ACT).
In determining the appropriate exercise of its discretion, the court considered whether the discontinuance would deprive the defendants of any forensic advantage or cause some other injustice that would warrant refusal of the plaintiff's application. The court noted that the second defendant would be deprived of the resolution of the indemnity costs issue, which was critical to the ongoing dispute between the parties. This delay in resolving that issue did not align with the primary purpose of the court as outlined in the Act. Consequently, the court held that the plaintiff's application should be granted on terms that the plaintiff pay the second defendant's costs up to the date of the discontinuance.
ORDERS:
The court granted the plaintiff leave to discontinue the proceedings on terms that the plaintiff pay the second defendant's costs up to the date of the discontinuance.
Orders
Orders of the court
See [46]
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
The second defendant also relied upon SCI Operations Pty Ltd v Trade Practices Commission(1984) 2 FCR 113 (SCI Operations) where the decision of Graham J in Covell was referred to by Sheppard J at 184. His Honour had earlier stated at 182: The equivalent Federal Court rule at that time was expressed in somewhat different terms, but attracts the application of the same principles. Similarly, in Trade Practices Commission v Manfal Pty Ltd & Ors (No 3) (1991) 33 FCR 382, Lee J referred to the unfettered discretion of the Court, and to Covell before stating at 383: Reliance was also placed on Ritz Hotel v Charles of the Ritz Ltd [No 8] (1987) 12 IPR 75, which itself refers to both Covell and SCI Operations. That case is ultimately of limited assistance here, because the discretion was exercised by McLelland J in the NSW Supreme Court in the context of differently worded rules, which limited the circumstances in which an application to discontinue could be made, and in different procedural circumstances. There, the application to discontinue was made after the hearing of the trial had commenced. Under the procedural rules applying in that jurisdiction at the time McLelland J held that the application was made too late.. More recently in the NSW Supreme Court, Brereton J cited the authorities extracted above in describing the current principle applicable when a matter has proceeded to a contested hearing and the plaintiff seeks to discontinue, in the decision of In the matter of Mempoll Pty Ltd, Anankin Pty Ltd and Gold Kings Pty Ltd [2013] NSWSC 301 at [10]: Applying these principles, consideration was given to whether the defendants, and the second defendant in particular (given his opposition), would be deprived of any forensic advantage or whether some other injustice would be occasioned by the discontinuance that warranted the Court refusing to grant leave to the plaintiff to discontinue proceedings, either on terms or at all. Although during oral argument the parties canvassed interesting matters beyond what is set out below, such as whether a res judicata or issue estoppel would operate if the proceedings were dismissed instead of discontinued, it is only necessary to set out the operative considerations on which the exercise of the Court’s discretion ultimately turned. First, the second defendant rightly emphasised the obligation of the Court, pursuant to s 5A of the Court Procedures Act 2004 (ACT) (CP Act), to exercise powers under the Rules in a way that best promotes the main purpose of facilitating the just resolution of disputes as quickly, inexpensively and efficiently as possible. The second defendant contended that by discontinuing now, the question of indemnity remains unresolved (which he submitted is critical to the conduct of the outstanding, yet to be litigated, dispute between the parties). This creates uncertainty until the determination of any substantive claim through subsequent litigation. Such delay in the resolution of that issue does not promote the main purpose under the CP Act.