Ryan v O'Halloran (No 2) - [2021] ACTSC 230

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	Ryan v O’Halloran (No 2)
Citation:	[2021] ACTSC 230
Hearing Dates:	22 July 2021
DecisionDate:	17 September 2021
Before:	Loukas-Karlsson J
Decision:	See [57]
Catchwords:	COSTS – application for alternate costs order – where plaintiff was successful in one claim but unsuccessful in the other – where plaintiff received offers that exceeded awarded damages – application for set off – enforceable money orders – in the interests of justice to grant set off
Legislation Cited:	Court Procedure Rules 2006 (ACT) pt 2.10, rr 1603, 1720, 2000 Court Procedures Act 2004 (ACT) s 5A Motor Accident Injuries Act 2019 (ACT) Road Transport (Third-Party Insurance) Act 2008 (ACT) (repealed) ss 141, 145, 155 Road Transport (Third-Party Insurance) Regulation 2008 (ACT) (repealed) reg 29
Cases Cited:	Calderbank v Calderbank [1975] 3 All ER 33 Cooper v Singh [2017] ACTCA 21 Gray v Richards (No 2) [2014] HCA 47; 315 ALR 1 Mitchell v Australian Capital Territory [2018] ACTSCFC 1; 13 ACTLR 208 Ryan v Bunnings Group Limited [2020] ACTSC 353 Stewart v Atco Controls Pty Ltd (in liq)(No 2) [2014] HCA 31; 88 ALJR 811 WSA Online Limited v Arms (No 2) [2006] FCAFC 108
Texts Cited:	Gino Dal Pont, Law of Costs (Third Edition, LexisNexis Butterworths, 2013)
Parties:	Mark Ryan (Plaintiff) Jade O’Halloran (First Defendant) Stephen Cain (Second Defendant) Insurance Australia Limited t/as NRMA Insurance (Third Defendant)
Representation:	Counsel Self-represented (Plaintiff) William Fitzsimmons SC (Defendants)
Solicitors Self-represented (Plaintiff) HWL Ebsworth Lawyers (Defendants)
File Number:	SC 312 of 2017

LOUKAS-KARLSSON J:

Introduction

The third defendant seeks various costs orders. The plaintiff, who is now unrepresented, resists the costs orders sought.

The plaintiff originally claimed damages arising from five incidents which occurred on the following dates:

(a) 18 January 2012 – the Bunnings Incident (SC 268 of 2017).

(b) 20 January 2013 – MVA 1 (SC 312 of 2017).

(c) 15 January 2014 – the Eastlake Incident (SC 267 of 2017).

(d) 31 August 2015 – MVA 2 (SC 312 of 2017).

(e) 25 January 2018 – MVA 3 (SC 510 of 2018).

The claims the subject of the hearing before the Court occupied over 20 days. On 23 December 2020, I published my judgment: Ryan v Bunnings Group Limited [2020] ACTSC 353 (Ryan v Bunnings). I made orders as to costs, with liberty to apply in respect to any alternate cost orders.

In proceedings SC 312 of 2017, the third defendant seeks a variation of the costs orders, relying upon offers made in the year prior to the commencement of the hearing. At [780] and [782] of Ryan v Bunnings, I made the following cost orders in respect of SC 312 of 2017, with liberty to apply in respect of any alternative cost orders:

(a) In respect of MVA 1: Judgment for the plaintiff in the amount of $11,190 and defendants to pay the plaintiff’s costs.

(b) In respect of MVA 2: Judgment for the defendants…

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 Ryan v O'Halloran (No 2)

Details

AGLC: Ryan v O'Halloran (No 2) [2021] ACTSC 230
Case: [2021] ACTSC 230
Decision Date

CaseChat Overview and Summary

The case of Ryan v O'Halloran (No 2) [2021] ACTSC 230 was heard by Justice Loukas-Karlsson over 20 days. The plaintiff, Mark Ryan, originally sought damages arising from five incidents, which the court determined in a previous decision, Ryan v Bunnings Group Limited [2020] ACTSC 353 (Ryan v Bunnings). The current decision addresses costs orders sought by the third defendant, Insurance Australia Limited t/as NRMA Insurance, against the plaintiff. The plaintiff was successful in one claim but unsuccessful in the other. The third defendant sought various costs orders, including set off of the judgment sum against the costs orders.

The legal issues before the court were whether the plaintiff should be ordered to pay the third defendant's costs in relation to two motor vehicle accidents (MVA 1 and MVA 2) and whether the set off application should be granted. The court examined the relevant legislation, including the Road Transport (Third-Party Insurance) Act 2008 (ACT) (repealed), the Motor Accident Injuries Act 2019 (ACT), and the Court Procedure Rules 2006 (ACT). The court also considered relevant case law and texts on costs.

The court found that in respect of MVA 1, the plaintiff should be ordered to pay the third defendant's costs in the sum of $2,500, in accordance with s 155(2)(d) of the Third-Party Insurance Act and r 1720 of the Court Procedure Rules. The court also found that in respect of MVA 2, the plaintiff should be ordered to pay the third defendant's costs in the sum of $60,000. The court granted the set off application, reducing the costs payable by the plaintiff to $51,310. The court based its decision on the overriding purpose of reaching a fair and just result, the legislative intent to encourage early resolution of motor accident claims, and the plaintiff's financial difficulties.

Orders