San v Rumble (No 2)

Case [2007] NSWCA 259

New South Wales


Court of Appeal


CITATION: San v Rumble (No 2) [2007] NSWCA 259
HEARING DATE(S): Application on papers
 
JUDGMENT DATE: 
21 September 2007
JUDGMENT OF: Beazley JA at 1; Ipp JA at 17; Campbell JA at 18
DECISION: No alteration to costs order pronounced 20 July 2007.
CATCHWORDS: PRACTICE AND PROCEDURE – costs – costs of application for leave to appeal –offer of compromise – motor vehicle accident – where Opponent made offer of compromise before hearing of application for leave to appeal – where application for leave to appeal dismissed – application for indemnity costs made by Opponent – whether rule 42.15 Civil Procedure Rules 2005 applicable in proceedings for costs under Ch 6 Motor Accidents Compensation Act 1999 – whether indemnity costs recoverable under s 151(2) Motor Accidents Compensation Act 1999 – whether “exceptional circumstances” existed - STATUTES – acts of parliament – construction – statutory definitions – role of statutory definitions in statutory interpretation – substitution of definiens for definiendum – construction by reference to objectives of statute – Motor Accidents Compensation Act 1999, Ch 6 - TORTS – negligence – motor vehicle accident – costs – where court proceedings preceded by assessment under Claims Assessment and Resolution Service – whether indemnity costs recoverable under s 151(2) Motor Accidents Compensation Act 1999 – interrelationship of Ch 6 Motor Accidents Compensation Act 1999 and rule 42.15 Civil Procedure Rules 2005 – Motor Accidents Compensation Act 1999, Ch 6 - WORDS AND PHRASES – “costs in connection with a motor accident” – “court awarded damages” – “exceptional case and for the avoidance of injustice” – “exceptional circumstances” – Motor Accidents Compensation Act 1999, ss 148(1), 151, 153(1)
LEGISLATION CITED: Health Insurance Act 1973 (Cth)
Legal Profession Act 1987
Motor Accidents Compensation Act 1999
Motor Accidents Compensation Regulation (No 2) 1999
Uniform Civil Procedure Rules 2005
CASES CITED: Awa v Independent News Auckland Ltd [1996] 2 NZLR 184
Baker v The Queen [2004] HCA 45; (2004) 223 CLR 513
Cohn v Hatcher [2005] FCAFC 199; (2005) 146 FCR 275
Council of the Municipality of Randwick v Rutledge (1959) 102 CLR 54
Damberg v Damberg [2001] NSWCA 87; (2001) 52 NSWLR 492
Director General, Department of Community Services v Adoptive Parents [2005] NSWCA 385; (2005) 64 NSWLR 268
Gibb v The Commissioner of Taxation of The Commonwealth of Australia (1966) 118 CLR 628
Ho v Professional Services Review Committee No 295 [2007] FCA 388
Kelly v The Queen [2004] HCA 12; (2004) 218 CLR 216
Maitland Hospital v Fisher (No 2) (1992) 27 NSWLR 721
Manly Council v Byrne & Anor (No 2) [2004] NSWCA 227
Mastrangelo v Reynolds [2001] WASC 347; (2001) 25 WAR 133; (2001) 127 A Crim R 469
Newcastle City Council v McShane (No 3) [2005] NSWCA 437; (2005) 65 NSWLR 155
No 20 Cannon Street Ltd v Singer & Friedlander Ltd [1974] 1 Ch 229
Oreb v Willcock [2005] FCAFC 196; (2005) 146 FCR 237

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San v Rumble (No 2) [2007] NSWCA 259
Case
[2007] NSWCA 259
Decision Date

CaseChat Overview and Summary

In *San v Rumble (No 2)*, the Court of Appeal of New South Wales considered an application for indemnity costs made by the Opponent following the dismissal of an application for leave to appeal in a motor vehicle accident matter. The Opponent had made an offer of compromise prior to the hearing of the application for leave to appeal.

The central legal issues before the Court were whether Rule 42.15 of the *Civil Procedure Rules 2005* was applicable to proceedings for costs under Chapter 6 of the *Motor Accidents Compensation Act 1999* (NSW), and whether indemnity costs were recoverable under section 151(2) of that Act. The Court also considered whether "exceptional circumstances" existed to justify an award of indemnity costs.

The Court reasoned that the *Motor Accidents Compensation Act 1999* (NSW) provided a comprehensive code for the recovery of costs in claims made under its provisions. It held that the specific provisions of Chapter 6 of the Act, particularly section 151(2), governed the recovery of costs in such matters, and that Rule 42.15 of the *Civil Procedure Rules 2005* did not apply. The Court further determined that the threshold for awarding indemnity costs under section 151(2) required proof of "exceptional circumstances" and that the Opponent had not demonstrated such circumstances in this instance.

The Court made no alteration to the costs order previously pronounced on 20 July 2007.

Orders

Orders of the court

No alteration to costs order pronounced 20 July 2007.

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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