Insurance Australia Limited t/as NRMA v Richards (No 2) [2023] NSWSC 1056

Supreme Court New South Wales

Medium Neutral Citation: Insurance Australia Limited t/as NRMA v Richards (No 2) [2023] NSWSC 1056 Hearing dates: 2 August 2023 Date of orders: 1 September 2023 Decision date: 01 September 2023 Jurisdiction: Common Law Before: Schmidt AJ Decision: 1. Ms Richards must bear 50% of the insurer's costs, as agreed or assessed. 2. The consent costs order made by the Personal Injury Commission in favour of Ms Richards not be disturbed. 3. Ms Richards is granted an indemnity certificate under s 6 of the Suitors' Fund Act 1951 (NSW). Catchwords: COSTS — Party/Party — whether to depart from usual order under Uniform Civil Procedure Rules 2005 (NSW) that costs follow the event — whether to order that each party to bear their own costs — where statutory construction issue advanced for the first time in these proceedings failed — order that each party to bear their own costs but apportionment appropriate given the mixed outcome of the proceedings — defendant to bear half of the plaintiff's costs COSTS — whether defendant to retain benefit of previous consent costs order made by the Personal Injury Commission — claimant's entitlement to costs in those proceedings not dependent on outcome — Motor Accident Injuries Act 2017 (NSW), s 8.10 — where insurer did not challenge retention of the benefit of the consent order — order made in favour of defendant COSTS — Party/Party — Suitors' Fund Act 1951 –– whether certificate under s 6 available to defendant –– where proceedings do not involve an appeal or a decision of a court –– proceedings "in the nature of an appeal" –– Personal Injury Commission a "court" for purposes of the Act –– s 6 requirements satisfied and certificate granted Legislation Cited: Civil Procedure Act 2005 (NSW), s 98 Motor Accident Injuries Act 2017 (NSW), s 8.10 Suitors' Fund Act 1951 (NSW), ss 2, 6 Supreme Court Act 1970 (NSW), s 69 Uniform Civil Procedure Rules 2005 (NSW), r 42.1 Cases Cited: AAI Limited t/as GIO v Moon [2020] NSWSC 714 Australian Postal Commission v Dao (No 2) (1986) 6 NSWLR 497 Bostik Australia Pty Ltd v Liddiard (No 2) [2009] NSWCA 304 Ex parte Parsons; Re Suitors' Fund Act (Supreme Court (NSW), 15 October 1952, unrep) Hogan v Trustees of the Roman Catholic Church (No 2) [2006] NSWSC 74 Insurance Australia Limited t/as NRMA v Richards [2023] NSWSC 909 Krslovic Homes Pty Ltd v Sparkes [2004] NSWSC 374 Latoudis v Casey (1990) 170 CLR 534; [1990] HCA 59 Macquarie International Health Clinic Pty Ltd v Sydney South West Area Health Service (No 2) [2011] NSWCA 171 Oshlack v Richmond River Council (1998) 193 CLR 72; [1998] HCA 11 R v Trade Practices Tribunal; Ex parte Tasmanian Breweries Pty Ltd (1970) 123 CLR 361; [1970] HCA 8 Rosniak v Government Insurance Office (1997) 41 NSWLR 608 Sze Tu v Lowe (No 2) [2015] NSWCA 91 Tomanovic v Global Mortgage Equity Corporation Pty Ltd (No 2) [2011] NSWCA 256 Yazgi v Permanent Custodians Limited (No 2) [2007] NSWCA 306 Category: Costs Parties: Insurance Australia Limited t/as NRMA (Plaintiff) Ms Wendy Richards (First Defendant) Bridie Nolan in their capacity as a Member appointed by the Minister under s 9 of the Personal Injury Commission Act 2020 (NSW) (Second Defendant) The President, Personal Injury Commission (Third Defendant) Representation: Counsel: Mr M Robinson SC w Ms J Gumbert (Plaintiff) Mr C Barry KC w Mr J Hallion (First Defendant) Submitting appearance (Second and Third Defendants)