Pinarbasi v AAI Ltd t/as GIO (No 2) - [2023] NSWSC 255

Supreme Court

New South Wales

Medium Neutral Citation: Pinarbasi v AAI Ltd t/as GIO (No 2) [2023] NSWSC 255
Hearing dates: 1 February 2023
Date of orders: 22 March 2023
Decision date: 22 March 2023
Jurisdiction: Common Law
Before: Schmidt AJ
Decision:
1. The insurer bear Mr Pinarbasi’s costs of these proceedings, as agreed or assessed.
2. The matter be remitted to the President of the Personal Injury Commission of New South Wales to be dealt with according to law.

Catchwords:
COSTS — Party/Party — Exceptions to general rule that costs follow the event — judicial review proceedings — submitting appearance by insurer — where concession of insurer to error of delegate of President of Personal Injury Commission of New South Wales would have limited time of hearing and costs involves — Civil Procedure Act 2005 (NSW), s 56 — circumstances where submitting party should pay costs — Civil Procedure Act 2005 (NSW), s 98 — Uniform Civil Procedure Rules 2005 (NSW), Pt 42

Legislation Cited:
Civil Procedure Act 2005 (NSW), ss 56, 98
Motor Accidents Injuries Act 2017 (NSW)
Uniform Civil Procedure Rules 2005 (NSW), Pt 42

Cases Cited:
Highland v Labraga (No 3) [2006] NSWSC 871
Kisimul Holdings Pty Ltd v Clear Position Pty Ltd (No 2) (2014) 86 NSWLR 645; [2014] NSWCA 317
Latoudis v Casey (1990) 170 CLR 534; [1990] HCA 59
Mahenthirarasa v State Rail Authority of New South Wales (No 2) (2008) 72 NSWLR 273; [2008] NSWCA 201
Midson v Workers Compensation Commission (No 2) [2017] NSWSC 147
Nyman v Valmas [1997] NSWCA 235
Pinarbasi v AAI Ltd t/as GIO [2023] NSWSC 80

Category: Costs
Parties: Mr Ahmet Duran Pinarbasi (Plaintiff)
AAI Ltd t/as GIO (First Defendant)
Ms Ratula Gupta, Delegate of the President of the Personal Injury Commission of New South Wales (Second Defendant)
The President of the Personal Injury Commission of New South Wales (Third Defendant)
Representation:
Counsel:
Mr R Sheldon SC (Plaintiff)
Mr E Anderson (Plaintiff)
Mr S Free SC (Third Defendant)
Ms A Sapienza (Third Defendant)
Solicitors:
Bryden’s Lawyers (Plaintiff)
Barry Nilsson Lawyers (First Defendant)
Crown Solicitor’s Office (Second and Third Defendant)

File Number(s): 2022/198295

JUDGMENT

Mr Pinarbasi successfully brought judicial review proceedings in relation to a decision made by a delegate of the President of the Personal Injury Commission of New South Wales, in relation to his claim, that he had suffered injury in a 2018 motor vehicle accident which was compensable under the Motor Accidents Injuries Act 2017 (NSW): Pinarbasi v AAI Ltd t/as GIO [2023] NSWSC 80.
This judgment deals with the question of costs, the insurer having filed a submitting appearance and not having appeared to oppose the orders Mr Pinarbasi sought, to have the delegate’s decision set aside. The President appeared amicus at the hearing to advance submissions about the proper construction of the statutory scheme, there otherwise being no contradictor.
In issue is whether the insurer should now be ordered to bear Mr Pinarbasi’s costs. For reasons which follow I…

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: [2023] NSWSC 255
Decision Date: 22 March 2023

CaseChat Overview and Summary

The case of Pinarbasi v AAI Ltd t/as GIO (No 2) involves the plaintiff, Pinarbasi, and the defendant, AAI Ltd trading as GIO. The dispute revolves around judicial review proceedings, specifically the costs associated with the case. The case was heard in the Supreme Court of New South Wales. The primary issue before the court was whether the defendant should be held responsible for the costs of the proceedings, given that it had conceded an error by a delegate of the President of the Personal Injury Commission of New South Wales, which would have limited the duration of the hearing and potentially the costs involved.

The court considered whether the general rule that costs follow the event should be departed from in this instance. It assessed whether the concession by the defendant constituted a significant factor that would justify awarding costs against them. The court referenced sections 56 and 98 of the Civil Procedure Act 2005 (NSW) and Part 42 of the Uniform Civil Procedure Rules 2005 (NSW) to guide its decision. The court determined that the circumstances warranted an exception to the general rule, and as a result, the defendant should be liable for the costs of the proceedings.

The reasoning of the court was based on the defendant's concession of error, which was seen as a critical factor that influenced the outcome of the case. The court found that the defendant's actions had effectively shortened the hearing and reduced the costs, justifying the imposition of costs against them. The final orders of the court reflected this decision, with the defendant ordered to pay the costs of the proceedings. This outcome underscores the importance of the principle that the party responsible for the proceedings should bear the costs, even in cases where a concession is made.

Orders