AAI Limited t/as AAMI v Phillips (No. 2) [2018] NSWSC 1829

Supreme Court New South Wales

Medium Neutral Citation: AAI Limited t/as AAMI v Phillips (No. 2) [2018] NSWSC 1829 Hearing dates: On the papers Date of orders: 03 December 2018 Decision date: 03 December 2018 Jurisdiction: Common Law Before: Davies J Decision: (1) The first defendant's notice of motion filed 14 November 2018 is dismissed.

(2) The first defendant is to pay the costs of the notice of motion. Catchwords: JUDGMENTS AND ORDERS – amending, varying and setting aside – where plaintiffs successful in proceedings for judicial review of decision of SIRA MAS Review Panel - application by first defendant to set aside order that he pay the plaintiffs' costs – UCPR r 36.16

COSTS – party/party – exceptions to general rule that costs follow the event – nature of the proceedings - where only one of two interrelated medical issues were referred to Review Panel – where proceedings taken in relation to Review Panel's decision on referred decision – where success by plaintiffs was moot until other issue determined – whether an exception to the general rule - where plaintiff obtained relief but not by way of certiorari – whether plaintiffs obtained relief other than relief sought in summons – relevant enquiry into conduct of litigation not conduct of antecedent matters – where first defendant submits that proceedings were inutile but did not exercise right to seek stay of proceedings

COSTS – Suitors' Fund – where plaintiffs successful because of error of law of administrative body - no certificate granted to first defendant in circumstances where proceedings were by way of judicial review not an appeal against the decision of a court Legislation Cited: Motor Accidents Compensation Act 1999 (NSW) s 58 Suitors' Fund Act 1951 (NSW) ss 2, 6, 6C Uniform Civil Procedure Rules 2005 (NSW) rr 36.16, 59.10 Cases Cited: AAI Limited t/as AAMI v Phillips [2018] NSWSC 1710 Henderson v QBE Insurance (Australia) Ltd [2013] NSWCA 480; (2013) 66 MVR 69 IAG Ltd t/as NRMA Insurance v Abiad [2018] NSWSC 1603 Mead v Watson as Liquidator for Hypec Electronics [2005] NSWCA 133 Wingfoot Australia Partners Pty Ltd v Kocak (2013) 252 CLR 480; [2013] HCA 43 Texts Cited: Nil Category: Costs Parties: AAI trading as AAMI (First Plaintiff) Insurance Australia Ltd t/as NRMA Insurance (Second Plaintiff) Erroll Phillips (First Defendant) State Insurance Regulatory Authority (Second Defendant) A Review Panel appointed by the State Insurance Regulatory Authority (Third Defendant) Representation: Counsel: K P Rewell SC (First & Second Plaintiffs) A Canceri (First Defendant) Submitting appearances (Second & Third Defendants)