Mannall v Howard (No 3) - [2019] ACTSC 260

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	Mannall v Howard (No 3)
Citation:	[2019] ACTSC 260
Hearing Date:	Decided on written submissions
DecisionDate:	26 September 2019
Before:	Mossop J
Decision:	See [39]
Catchwords:	COSTS – APPLICATION FOR SPECIAL COSTS ORDER – Second defendant ran argument that had been previously unsuccessful in other proceedings – leave granted to file an amended defence – argument that was ultimately successful only arose in the amended defence – Calderbank offers did not relate to the ultimate arguments advanced at hearing COSTS – APPLICATION FOR SPECIAL COSTS ORDER – Where insurer denied liability leading the insured to defend a claim – claim for contribution or indemnity under r 319 of Court Procedures Rules 2006 (ACT) – claim for indemnity arising under an insurer’s obligation to indemnify in s 21 of the Road Transport (Third Party Insurance) Act 2008 (ACT) – costs to be paid on an indemnity basis
Legislation Cited:	Court Procedures Act 2004 (ACT), s 5A Court Procedures Rules 2006 (ACT), rr 319, 406(1)(c), 407(3)(a), 1721, 1728 Road Transport (Third Party Insurance) Act 2008 (ACT), ss 21, 151(4) Safety, Rehabilitation and Compensation Act 1988 (Cth), s 44
Cases Cited:	Gray v Sirtex Medical Ltd [2011] FCAFC 40; 193 FCR 1 Hadley v Baxendale (1854) 9 Exch 341; 156 ER 145 Haider v Lane [2014] ACTSC 205 Mannall v Howard [2019] ACTSC 112 Mannall v Howard (No 2) [2019] ACTSC 113 Oshlack v Richmond River Council [1998] HCA 11; 193 CLR 72
Parties:	David Mannall (Plaintiff) Malcolm Howard (First Defendant) Insurance Australia Limited t/as NRMA Insurance (Second Defendant)
Representation:	Solicitors Snedden Hall & Gallop (Plaintiff) ACT Government Solicitor (First Defendant) Moray & Agnew (Second Defendant)
File Number:	SC 468 of 2017

MOSSOP J:

Introduction

On 21 June 2019, I ordered that judgment be entered in this matter for the first and second defendants against the plaintiff and that the plaintiff was to pay the costs of the first and second defendants: Mannall v Howard (No 2) [2019] ACTSC 113 (Mannall (No 2)). The order in relation to costs allowed for the parties to be further heard in relation to costs and in those circumstances, would not take effect until further order of the court. The parties did wish to be further heard in relation to costs. They filed written submissions in relation to costs and identified the evidence relied upon in relation to costs.

The submissions on costs have also identified that in my original decision I failed to make orders finally disposing of a notice claiming contribution or indemnity filed pursuant to r 319 of the Court Procedures Rules 2006 (ACT) by the first defendant against the second defendant.

The proceedings involved a claim by the plaintiff for damages arising when the first defendant reversed his vehicle into him at the Belconnen bus depot. Both the plaintiff and the first defendant worked there. The second defendant (NRMA) was the first defendant’s compulsory third-party (CTP) insurer.

The plaintiff…

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.

Continue reading Mannall v Howard (No 3)

Details

AGLC: Mannall v Howard (No 3) [2019] ACTSC 260
Case: [2019] ACTSC 260
Decision Date: 26 September 2019

CaseChat Overview and Summary

Mannall v Howard (No 3) involved the claimant, Mannall, and the second defendant, Howard. The dispute arose from a motor vehicle accident where Howard was allegedly negligent, leading to a claim for damages. The legal issues focused on the application for special costs and the assessment of indemnity costs. The court had to determine whether the second defendant's argument, which had been unsuccessful in previous proceedings, warranted a special costs order. Additionally, the court needed to address the appropriate basis for indemnity costs where the insurer denied liability, compelling the insured to defend the claim.

The court's reasoning centred on the fact that the second defendant's successful argument only emerged in the amended defence, which was filed after leave was granted. The court noted that the Calderbank offers made by the parties did not relate to the ultimate arguments presented at the hearing. Consequently, the court found that the second defendant's conduct did not warrant a special costs order. Regarding indemnity costs, the court held that since the insurer denied liability, the insured was justified in defending the claim. Under the Road Transport (Third Party Insurance) Act 2008 and the Court Procedures Rules 2006, the insurer's obligation to indemnify required costs to be paid on an indemnity basis.

Ultimately, the court dismissed the application for special costs but upheld the claim for indemnity costs on the basis of the insurer's denial of liability. The court's orders were detailed in paragraph [39] of the decision, providing clarity on the costs to be awarded to the claimant.

Orders

Orders of the court

See [39]

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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