Smith v NRMA Insurance Limited [2016] NSWCA 250

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 appeal Legislation 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 30 Cases 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 South Wales & Ors (1989) 168 CLR 23 King v Jetstar Airways Pty Ltd [2012] FCA 413 Layton Smith bht Troy Smith v NRMA Insurance Limited [2014] NSWSC 1518 Macatangay v State of New South Wales (No 2) [2009] NSWCA 272 Newcastle City Council v Batistatos; Roads & Traffic Authority of NSW v Batistatos [2005] NSWCA 20 NSW Insurance Ministerial Corporation v Abualfoul (1999) 94 FCR 247; [1999] FCA 433 Category: Procedural and other rulings Parties: Layton Smith (Appellant) NRMA Insurance Limited (Respondent) Representation: Counsel: BJ Gross QC (as amicus curiae) B Kelleher (Respondent)