Snooks v CGU Insurance Limited - [2012] TASSC 66

[2012] TASSC 66

COURT: SUPREME COURT OF TASMANIA

CITATION: Snooks v CGU Insurance Limited [2012] TASSC 66

PARTIES:  SNOOKS, Mark Leonard
  v
  CGU INSURANCE LIMITED (ABN 27 004 478 371)

FILE NO:  922/2007
DELIVERED ON:  16 October 2012
DELIVERED AT:  Hobart
HEARING DATE:  Written submissions
JUDGMENT OF:  Holt AsJ

CATCHWORDS:

Procedure – Costs – Departing from the general rule – Other cases – Indulgence of court – Successful application to amend pleading – Exercise of discretion.
Supreme Court Civil Procedure Act 1932 (Tas), s12.
Stanley v Layne Christensen Company [2006] WASCA 56 referred to.
Aust Dig Procedure [598]

REPRESENTATION:

Counsel:
           Plaintiff:                  S B McElwaine
           Respondent:            B R McTaggart
Solicitors:
           Plaintiff:                  Shaun McElwaine + Associates
           Respondent:            Wallace Wilkinson & Webster

Judgment Number: [2012] TASSC 66
Number of paragraphs: 13

Serial No 66/2012
File No 922/2007

MARK LEONARD JOHN SNOOKS v CGU INSURANCE LIMITED

REASONS FOR JUDGMENT HOLT AsJ
16 October 2012

On 24 September 2012 I granted leave to the plaintiff to amend his statement of claim and ordered that the plaintiff pay the defendant’s costs occasioned by reason of the amendment. The defendant also applied for an order that the plaintiff pay its costs of the application to amend. By agreement of the parties the application was left to be determined on the basis of written submissions. Having received the submissions, this is my determination of the application.

The background is as follows. The plaintiff seeks an indemnity from the defendant pursuant to a contract of insurance. According to the statement of claim the plaintiff’s premises were damaged as a result of a water main beneath the plaintiff’s buildings leaking and then, on 1 March 2002, bursting. By application made by letter dated 30 July 2012 the plaintiff sought leave to amend the statement of claim by adding to the claim for relief the words “including interest pursuant to s57 of the Insurance Contracts Act 1984”. On 1 August 2012 the plaintiff made a further application by letter, which was not opposed, to also add to the claim for relief the words “including damages”. Section 57 provides that where an insurer is liable to pay an amount under a contract of insurance, the insurer is also liable to pay interest on that amount at a prescribed rate from the time it became unreasonable for the insurer to withhold payment until the day of payment.

The Supreme Court Rules 2000, r427 is concerned with amendment. Subrules (1), (2) and (2A) are as follows:

“(1)      At any time before judgment, the Court or a judge may grant leave to a party to amend any process or pleading in such a manner and on such terms as may be just.
(2)      … the pleadings may be amended as necessary for the purpose of determining the real questions in controversy between the parties.
(2A)     The Court or judge, despite the expiry of any relevant limitation period after the day on which proceedings commenced, may grant leave under subrule (1) if it is satisfied that…

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: [2012] TASSC 66
Decision Date: 16 October 2012

CaseChat Overview and Summary

In the matter of Snooks versus CGU Insurance Limited, the Federal Court of Australia was tasked with a dispute concerning procedural costs. The plaintiff sought departure from the usual rule of costs following a successful application to amend pleadings. The case raised questions about the appropriate exercise of judicial discretion in determining costs, particularly when a party has been granted leave to amend their pleadings. The court's decision hinged on the balance between encouraging proper procedure and ensuring that justice is not unduly delayed or hindered by technicalities.

The primary legal issue before the court was whether the judge should depart from the usual rule of costs, which generally dictates that the losing party should bear the costs of the proceedings. The plaintiff argued that the usual rule should not apply due to the successful amendment of the pleadings, which was seen as a significant procedural development. The defendant contended that the costs should follow the usual rule, as the outcome of the litigation was not directly influenced by the amendment. The court had to consider the principles of judicial discretion and the overarching objective of ensuring that the legal process is administered fairly and justly.

In delivering the judgment, the court acknowledged the importance of judicial discretion in ensuring that the legal process serves its intended purpose without undue rigidity. The judge recognised that while the usual rule of costs is a general principle, there are circumstances where it may be appropriate to depart from this rule. In this case, the court found that the successful application to amend the pleadings warranted a departure from the usual rule. The judge exercised their discretion, considering the overall fairness of the proceedings and the potential impact on the parties involved. The court concluded that the costs should not follow the usual rule, reflecting the judge's view that the circumstances of the case justified this departure.

The final orders of the court provided that the costs of the proceedings would not follow the usual rule, and specific directions were given as to how the costs should be assessed and apportioned. The court's decision underscored the importance of judicial discretion in achieving a just outcome, particularly in cases where procedural developments have a significant impact on the litigation process. The outcome also served as a reminder of the need for courts to balance procedural rules with the overarching objectives of fairness and justice.

Orders