Insurance Australia Ltd t/as NRMA Insurance v Asaner (No 3)

[2016] NSWSC 1201

Supreme Court

New South Wales

Medium Neutral Citation:	Insurance Australia Ltd t/as NRMA Insurance v Asaner (No 3) [2016] NSWSC 1201
Hearing dates:	On the papers
Date of orders:	05 August 2016
Decision date:	05 August 2016
Jurisdiction:	Common Law
Before:	Campbell J
Decision:	Confirm Order 3 pronounced on 5 August 2016
Catchwords:	ADMINISTRATIVE LAW – costs–whether depart from general rule
Legislation Cited:	Motor Accidents Compensation Act 1999 (NSW), ss 62(1), 62(1A) Uniform Civil Procedure Rules 2005 (NSW), r 35.16(3A)
Cases Cited:	Alavanja v NRMA Insurance Ltd [2010] NSWSC 1182 Alliance Australia Insurance Ltd v Habib (No 2) [2015] NSWSC 1870 Alliance Australian Insurance Ltd v Mackenzie (No 2) [2014] NSWSC 254 Henderson v QBE Insurance (Australia) Ltd [2013] NSWCA 480; 66 MVR 69 Insurance Australia Limited t/as NRMA Insurance v Asaner (No 2) [2016] NSWSC 1078 Jubb v Insurance Australia Ltd [2016] NSWCA 153 Mackenzie v Allianz Australia (No 2) [2015] NSWSC 1320 QBE Insurance (Australia) Ltd v Miller [2013] NSWCA 442; 67 MVR 322 Rodger v De Gelder [2011] NSWCA 97; 80 NSWLR 594 Singh v Motor Accidents Authority of New South Wales (No 2) [2010] NSWSC 1443
Category:	Costs
Parties:	Insurance Australia Limited t/as NRMA (Plaintiff)   Hakan Asaner (Defendant)
Representation:	Counsel: M Robinson SC with A Poljak (Plaintiff) E Romaniuk SC with E Grotte (Defendant)     Solicitors: Hall & Wilcox (Plaintiff) AJB Stevens Lawyers (Defendant)
File Number(s):	2015/349885

judgment

1. Mr Asaner seeks an order in accordance with r 35.16(3A) of the Uniform Civil Procedure Rules 2005 (NSW) setting aside order 3, an order for the unsuccessful first defendant to pay the plaintiff’s costs: Insurance Australia Limited t/as NRMA Insurance v Asaner (No 2) [2016] NSWSC 1078. Mr Asaner’s application is for this order to be substituted with an order that each party pay their own costs. By consent, the hearing of this application proceeded on the papers, with Counsel for both parties providing written submissions by way of email to my chambers.

2. The arguments of Mr Romaniuk of Senior Counsel in support of this application rely for the most part on the impact of the recent New South Wales Court of Appeal decision in Jubb v Insurance Australia Ltd [2016] NSWCA 153 on my determination of these proceedings. This decision of the Court of Appeal was handed down after I reserved my decision. In light of its relevance to the issues in contention, the parties were granted leave to address its import by way of written submissions prior to my final determination.

3. Mr Romaniuk submits that the arguments advanced in written submissions, and the application of principles, derived from Jubb were determinative of my decision in Asaner (No 2). He said the Court did not otherwise accept the arguments the plaintiff insurer advanced at the oral hearing, and neither did it make a positive finding in respect of any of the alleged errors of the proper officer that the plaintiff had particularised. While the insurer argued that the proper officer’s application of Singh v Motor Accidents Authority of New South Wales (No 2) [2010] NSWSC 1443 and Alavanja v NRMA Insurance Ltd [2010] NSWSC 1182 was incorrect, Mr Romaniuk argues that this was based on different arguments and conclusions to those accepted and made by the Court of Appeal in Jubb and relied upon by me. Mr Romaniuk further submits that, prior to Jubb, there was no proper basis for a finding that the principles espoused in Singh (No 2) and Alavanja in respect of s 62 Motor Accidents Compensation Act 1999 (NSW) as applied by the proper officer were “clearly wrong”: Mackenzie v Allianz Australia (No 2) [2015] NSWSC 1320 at [61] and [56].

4. Mr Romaniuk argues that it is therefore appropriate to depart from the usual rule that costs follow the event. The Court has found it appropriate in motor accident insurance cases to apportion cost orders where success was but on a narrow or limited ground: Alliance Australian Insurance Ltd v Mackenzie (No 2) [2014] NSWSC 254; Alliance Australia Insurance Ltd v Habib (No 2) [2015] NSWSC 1870. He distinguishes this application on the basis that, in each of these cases, the successful argument was run at the oral hearing not following, what he characterises as, an intervening and determinative decision of the Court of Appeal. For this reason an order for each party to bear its own costs, rather than apportionment, is appropriate.

5. Mr Robinson of senior Counsel for the plaintiff contends that Jubb merely consolidated an existing line of authority challenging the approach taken in Singh (No 2) and Alavanja in respect of the proper interpretation of s 62 of the Act. The Court of Appeal relied upon a body of case law extant at the time of oral argument and relied upon by the plaintiff to argue the incorrect reliance of the proper officer on Singh (No 2) and Alavanja, such as Rodger v De Gelder [2011] NSWCA 97; 80 NSWLR 594; QBE Insurance (Australia) Ltd v Miller [2013] NSWCA 442; 67 MVR 322 and Henderson v QBE Insurance (Australia) Ltd [2013] NSWCA 480; 66 MVR 69. Jubb was merely the most recent and explicit case in a line authority dealing with this provision, with the decision the Court reached in Asaner (No 2) open on the case as argued and presented at the hearing. Accordingly, the general rule applies and order 3 should not be disturbed.

6. I accept Mr Romaniuk’s submission that none of the arguments advanced by counsel for the plaintiff at the oral hearing were identical to the ratio of the Court of Appeal in Jubb. The grounds of error alleged by the plaintiff all emanated from their submission (which I rejected) that the proper officer did not view the DVD but rather chose to evaluate its significance through the expert report of Dr Harvey-Sutton when applying s 62; and further that the surveillance subsequent to the original medical report evinced in the DVD itself was reason for considering the information to be “new” and therefore satisfying the precondition: see Plaintiff Summary Submissions, [25]–[29]; [33]–[26]. While the plaintiff did argue that the proper officer erred in his application of Singh (No 2) and Alavanja, it was his failure to view the DVD and what was said to be his sole reliance on the expert report to reach this determination that formed the basis of the particularised grounds of error.

7. That this is so, however, it is not determinative of this application. I accept the submission for the plaintiff that Jubb was merely confirmatory of existing authority relied upon by Mr Robinson SC, as evident in [25]–[27] of my decision in Asaner (No 2). While the effect of the decision of the Court of Appeal significantly clarified the correct approach to s 62, the decision reached by me in Asaner (No 2) was open at the time of oral hearing. While the Court of Appeal’s strong disapproval of the “same issue” ground for non-satisfaction of the pre-condition perhaps could be said to have been skirted around rather than directly addressed in argument, the same authorities were invoked; being the same authorities which effectively presaged the reasoning in Jubb: Jubb clarified the matter but did not break new ground. I am not persuaded that the insurer won on a ground not substantially argued at the hearing.

8. Accordingly, I find no reason for departing from the usual rule that costs follow the event. I confirm order 3 made on 5 August 2016.

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Decision last updated: 31 August 2016