Lou v IAG Ltd t/as NRMA Insurance

The appeal concerned the costs orders made by the primary judge in proceedings between the appellant, Lou, and the first respondent, IAG Ltd t/as NRMA Insurance. The appellant had filed a submitting appearance in the primary proceedings and argued that they neither caused nor contributed to the costs incurred by the first respondent, nor did they cause the errors that were the subject of the proceedings. The appellant contended that the primary judge failed to consider relevant factors when exercising their discretion regarding costs.

The central legal issues before the Court of Appeal were whether the primary judge erred in their costs discretion by failing to take into account relevant considerations, and whether a decision of a claims assessor under the *Motor Accidents Compensation Act 1999* (NSW) constituted a decision of a "court or tribunal" for the purposes of the *Suitors’ Fund Act 1951* (NSW). Additionally, the Court considered whether a judicial review pursuant to s 69 of the *Supreme Court Act 1970* (NSW) was an "appeal" for the purposes of s 6 of the *Suitors’ Fund Act 1951* (NSW).

The Court of Appeal found that the primary judge had failed to take into account relevant considerations when making the costs order. Specifically, the Court noted that the appellant had not caused the errors that led to the proceedings and had adopted a submitting appearance, thereby not contributing to the costs incurred by the first respondent. The Court also determined that a claims assessor's decision was not a decision of a "court or tribunal" for the purposes of the *Suitors’ Fund Act 1951* (NSW), and that judicial review under s 69 of the *Supreme Court Act 1970* (NSW) did not constitute an "appeal" for the purposes of that Act.

Consequently, the Court of Appeal granted leave to appeal, allowed the appeal, and set aside the primary judge's costs order. In lieu thereof, the Court ordered that the previous costs order made on 4 April 2019 be set aside, and that there be no order as to costs between the first respondent and the appellant in the primary proceedings. The first respondent was ordered to pay the appellant's costs of the application for leave to appeal and the appeal in relation to the first ground.