Solicitors:
Curwoods Lawyers - Plaintiff
AJB Stevens Lawyers - First Defendant
Crown Solicitor - Second and Third Defendants
File Number(s): 2015/171032
[2]
Judgment (revised from ex tempore)
On 20 November 2015, I published my principal judgment in these proceedings (Allianz Australia Insurance Limited v Habib & Ors [2015] NSWSC 1719; "Allianz (No 1)"). I ordered, inter alia, that a certificate purportedly issued under s 94(4) of the Motor Accidents Compensation Act 1999 ("MAC Act") concerning a claim for personal injury damages made by the first defendant, Mr Habib, be set aside and that his claim be re-determined according to law.
Allianz Australia Insurance Limited v Habib [2015] NSWSC 1870 | Case summary | Zoe
As that represented the form of relief that had been sought by the plaintiff Allianz Australia Insurance Ltd ("Allianz"), I made an order that Mr Habib pay the plaintiff's costs of the proceedings. However, I reminded the parties that if either of them wished to seek to vary that order, they could apply within the time provided for in Uniform Civil Procedure Rule 36.16(3A) (Allianz No 1 at [52]).
Mr Habib applied within the time provided for in that rule. He sought to vary the costs order by substituting an order to the effect that he pay only 10% of the plaintiff's costs to reflect what he contends was only the limited success in terms of grounds upon which the plaintiff succeeded. He also sought a certificate under s 6 of the Suitors' Fund Act 1951.
I will deal with the application to vary the costs order first. There are two principal submissions made on behalf of Mr Habib to support the application to vary the costs order. First, he contends that, notwithstanding the fact that Allianz was successful overall, a costs order that awards it less than its full costs should be made as Allianz only succeeded on what he contends was a very narrow basis compared with the entirety of the grounds which were argued (see Jamal v Secretary, Department of Health (1988) 14 NSWLR 252, 271E-F, per Mahony JA; "Jamal").
Second, Mr Habib contends that given the nature of the proceedings, namely proceedings invoking the Court's supervisory jurisdiction which does not concern his conduct but the legal validity of the assessor's reasons, he was required to be an active contradictor, and that it would be unfair for him to have to wear the cost consequences of the assessor's errors (citing Jamal at 271G).
In relation to the first matter, counsel for Allianz, Ms Poljak, made two submissions in response. The first was that it was not appropriate to embark upon an analysis of the extent to which the various grounds her client argued were successful or not, given the nature of the relief that was sought and granted. In effect, she contends that, from beginning to end, Allianz's fundamental point was that the assessment was defective legally and therefore liable to be set aside, and that contention was vindicated.
Further, Ms Poljak contended that while accepting that grounds four and five of the summons were not successful, the basis upon which the decision was set aside reflected, to a large degree, the fundamental point that was being made by grounds one, two and three.
The basis upon which the Claims Assessment and Resolution Service's ("CARS") assessment was set aside was a failure by the assessor to state the assumptions on which the award was based. In particular, the CARS assessor failed to state the assumption he made as to the likely working life of Mr Habib (Allianz No 1 at [39]). It is true that that ground was reflected in one way or another in grounds one, two and three of the summons, and as was identified in the plaintiff's submissions. However, there were other more time consuming arguments that were raised by grounds one, two and three.
In my view, when one looks overall at the matters that were argued, and in this respect I mean no criticism of either the plaintiff or its counsel, Allianz was ultimately unsuccessful in relation to a reasonably significant number of them, although they did obtain the relief they sought. In my view a differential costs order is warranted, although for the reason I will next state, I do not think the reduction should be of the order suggested by the plaintiff.
This brings me to the second matter noted on behalf of Mr Habib, namely the nature of the proceedings. True it is that Mr Habib was not responsible for the errors that were identified in the assessor's reasons. It is also the case that he is the only potential active contradictor to any claim that seeks to attack those reasons. Nevertheless, like all litigants, it is incumbent upon a respondent to these types of proceedings to make an assessment at a relatively early stage as to whether the proceedings can be defended.
In my view that part of Allianz's case which was upheld was effectively unanswerable. It was clearly set out in the summons and articulated in the plaintiff's submissions. It amounted to a clear breach of s 126(3) of the MAC Act, and a review of the authorities only emphasised that a statement on that matter was required, irrespective of any dispute as to the legal principles concerning an award of a "buffer"(see Allianz (No 1) at [35] citing Allianz Australia Insurance Limited v Sprod [2012] NSWCA 281; 81 NSWLR 626 at [30]).
My recollection of the course of the hearing was that when this matter was directly raised with Senior Counsel for Mr Habib, there was, notwithstanding the skill in which he otherwise presented his client's case, little he could say about it. In the end it was, in my view, a case that was on the borderline of one that should have been in this respect conceded from an early point.
When I consider these matters, I consider that a variation to the costs order is required though, as I have stated, not to the extent suggested by the plaintiff. In my view the appropriate order is that the first defendant pay 40% of the plaintiff's costs of the proceedings, including the costs of this motion.
The other application made on behalf of Mr Habib is for a certificate under s 6 of the Suitors' Fund Act. This section enables the grant of a certificate if "… an appeal against the decision of a court: (a) to the Supreme Court on a question of law or fact … succeeds".
There are two potential issues of construction that arise in relation to this application, namely whether a decision of a CARS assessor is a decision of a "court" for the purposes of s 6(1). I will pass over that issue, although in my view, given the nature of the functions performed by a CARS assessor, they appear to answer that description (see Australian Postal Commission v Dao (No 2) (1986) 6 NSWLR 497 at 512, per Kirby P).
However, there are problems with characterising these proceedings as being by way of "an appeal". In Henderson v QBE Insurance (Australia) Limited [2013] NSWCA 480 ("Henderson") at [57] Beazley P stated as follows:
"There is a further problem with the application of s 6 in the circumstances of this case, in that the proceedings before the primary judge were not by way of an appeal, but were by way of judicial review pursuant to the Supreme Court Act, s 69. Judicial review proceedings would, however, fall within the meaning of 'other proceedings' within the meaning of s 6C."
The proceedings in Henderson concerned judicial review of a determination of a proper officer of the Motor Accidents Authority pursuant to s 62 of the Motor Accidents Compensation Act 1999. In Henderson Beazley P declined to make an order under the Suitors' Fund Act, partly for the reason notified above, and otherwise because her Honour was not satisfied that a proper officer constituted a "Court" for the purposes of s 6 (at [55] to [56]). Tobias AJA agreed with Beazley P, and in particular agreed with the orders that her Honour proposed (at [108] to [109]).
In AAI Limited v Fitzpatrick (No 2) [2015] NSWSC 1272 Schmidt J (at [27]) pointed out that in Ex parte Parsons; Re Suitors' Fund Act (1952) 69 WN (NSW) 380 ("Parsons") Street CJ, with whom Owen and Herron JJ agreed, stated at p 381 that there was jurisdiction to issue a certificate under s 6 of the Suitors' Fund Act in proceedings that sought prohibition and certiorari against an inferior court because:
"These proceedings were proceedings which were instituted for the purpose of correcting an error which had been made in the court below. It was a court which was adjudicating upon a matter properly brought before it and it was to a court the writ was directed. In the result, this Court came to the conclusion that the proceedings below needed correction to the extent of quashing the same, and the applicant succeeded, therefore, in having an erroneous decision set aside. On every view of the language of the Act, I think it is clear that this is a 'proceeding in the nature of an appeal' and therefore is included in the word 'appeal' as it is used in the Act."
Having set out this passage, Schmidt J then continued in Fitzpatrick (No 2) at [28] to state:
"Nevertheless, it seems to me that notwithstanding the views expressed by Beazley P in Henderson v QBE Insurance (Australia) LTDD, given what was decided in Ex Parte Parsons; Re Suitors' Fund Act, it must be concluded that the Court's judicial review powers, now under S 69, involve proceedings 'in the nature of an appeal'." (emphasis added)
However, with respect to her Honour, I do not consider that the statements by Beazley P in Henderson v QBE can be merely described as "views". As I have stated, Tobias AJA agreed with Beazley P. It is true that Henderson did not consider the above passage from Ex parte Parsons, but that criticism, if it is a valid one, is not one for judges at first instance to act upon.
It seems to me that the statements in Henderson and Parsons are difficult to reconcile. Nevertheless, there having been a recent statement by the majority of the Court of Appeal on a question which is much closer to the circumstances of this case than that considered in Parsons, I feel that I am obliged to give effect to the decision in Henderson. It seems to me that I must act on the position stated in Henderson and find that proceedings under s 69 of the Supreme Court Act are not proceedings that answer the description of an "appeal" for the purposes of s 6(1) of the Suitors' Fund Act.
Accordingly, I decline to grant a certificate under the Suitors' Fund Act. In case the matter goes elsewhere, I can indicate that, had I considered that the proceedings were by way of an "appeal" and finally determined that an assessment by a CARS assessor was a decision of a court, I would have granted such a certificate.
Accordingly the Court orders as follows:
1. Order 4 made by the Court on 20 November 2015 be set aside.
2. Order that the first defendant pay 40% of the plaintiff's costs of the proceedings, including 40% of the costs of the first defendant's notice of motion filed 27 November 2015.
3. Order that that notice of motion filed 27 November 2015 be otherwise dismissed.
[3]
Amendments
09 December 2015 - Paragraph 18: "Heron" corrected to "Herron"; "Tobias AJ" corrected to "Tobias AJA".
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Decision last updated: 09 December 2015