Court of Appeal
Supreme Court
New South Wales
Medium Neutral Citation: Smith v NRMA Insurance Limited [2016] NSWCA 250 Hearing dates: 15 August 2016; Further written submissions – 26 August 2016 Decision date: 09 September 2016 Before: Gleeson JA Decision: (1) That Ms Geraldine Daley be appointed to act as tutor of the appellant in these proceedings, such order to take effect upon the filing of a Consent to act as tutor in the approved form (UCPR Form 30).
(2) The respondent is precluded from seeking any recourse to Ms Geraldine Daley for the payment of any costs order made in its favour in these proceedings and Ms Daley is not personally liable in respect of any such costs order.Catchwords: PRODEDURE – costs – maximum costs orders and capped costs – Protective costs orders – unsuccessful motor vehicle accident claim against insurer for damages by brain-damaged child plaintiff – where tutor of child appellant removed on his own application – appeal stayed pending appointment of replacement tutor to child appellant – consent by independent solicitor to appointment as tutor contingent on protection against personal liability for costs – absence of alternative tutor willing to assume costs liability – whether order protecting independent solicitor tutor against personal liability for costs should be made – interests of justice having regard to parties’ respective rights and interests – stay otherwise effectively indefinite – purposes of appointment of tutor
PRODEDURE – costs – interlocutory proceedings – source of power to make protective costs order – UCPR r 2.1 – incidental power under UCPR r 7.18 – inherent jurisdiction
PRODEDURE – costs – protective costs order – Supreme Court Act 1970 s 46(2) – single Judge of Appeal – whether power available – whether protective costs order involves determination or decision of appealLegislation Cited: Civil Procedure Act 2005 (NSW) s 3, 56
Federal Court Rules 1979 (Cth) O 43
Federal Court Rules 2011 (Cth), r 40.51
Motor Accidents Compensation Act 1999 (NSW) Div 1 of Pt 1.2
Motor Accident Compensation Amendment Act 2006 (NSW)
Limitation Act 1969 (NSW) ss 11, 52
Supreme Court Act 1970 (NSW) s 23, 46
Uniform Civil Procedure Rules 2005 (NSW) (UCPR) rr 2.1, 7.13, 7.14, 7.15, 7.16, 7.18, 42.4, Form 30Cases Cited: Adams by her next friend O’Grady v State of New South Wales (No 2) [2008] NSWSC 1394
Ashton v Pratt (No 2) [2015] NSWCA 134
Azar v Kathirgamalingan [2012] NSWCA 429
Bobolas v Waverley Council [2012] NSWCA 126
Cai v Zheng (No 2) [2009] NSWCA 317
Dey v Victorian Railways Commissioners (1949) 78 CLR 62; [1949] HCA 1
Fernando (by his tutor, John Ley) v Minister for Immigration and Citizenship (No 9) [2009] FCA 833
Goddard Elliott (a firm) v Fritsch [2012] VSC 87
Guler v NSW Trustee and Guardian [2012] NSWSC 1369
Haines v Leves (1987) 8 NSWLR 442
Iskandar v Mahbur [2011] NSWSC 1056
Jaffari v Minister for Immigration and Multicultural Affairs (2001) 113 FCR 10
Jago v District Court of New…
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- Case
- [2016] NSWCA 250
- Decision Date
CaseChat Overview and Summary
The central legal issues before the Court were whether it had the power to make a protective costs order in these circumstances, and if so, from what source that power derived. Specifically, the Court examined the scope of the Uniform Civil Procedure Rules 2005 (UCPR), including rules 2.1 and 7.18, and the inherent jurisdiction of the Supreme Court. The Court also considered the applicability of section 46(2) of the Supreme Court Act 1970 (NSW) and whether a protective costs order constituted a determination or decision of the appeal itself.
Gleeson JA reasoned that the appointment of a tutor for a child litigant is a matter of procedure and that the court has broad powers to manage its proceedings in the interests of justice. The Court found that the power to make a protective costs order was available under the court's inherent jurisdiction, as well as potentially under the UCPR, to ensure the child's right to access justice was not frustrated by the inability to secure a tutor willing to assume personal costs liability. The Court emphasised that the purpose of appointing a tutor is to protect the interests of the infant, and this purpose would be defeated if no tutor could be appointed due to the risk of personal liability for costs.
Consequently, the Court ordered that Ms Geraldine Daley be appointed as tutor of the appellant, with the respondent precluded from seeking any recourse against Ms Daley for the payment of any costs orders made in its favour. Ms Daley was therefore not to be held personally liable for any such costs.
Orders
Orders of the court
(1) That Ms Geraldine Daley be appointed to act as tutor of the appellant in these proceedings, such order to take effect upon the filing of a Consent to act as tutor in the approved form (UCPR Form 30).
(2) The respondent is precluded from seeking any recourse to Ms Geraldine Daley for the payment of any costs order made in its favour in these proceedings and Ms Daley is not personally liable in respect of any such costs order.
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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