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) Solicitors: Moray & Agnew (First & Second Plaintiffs) CMC Lawyers (First Defendant) Crown Solicitors Office (Second and Third Defendants) File Number(s): 2017/348070 Publication restriction: Nil Judgment 1. I gave judgment in this matter on 13 November 2018: AAI Limited t/as AAMI v Phillips [2018] NSWSC 1710. I made declarations that the Certificates of the third defendant relating to two motor accidents were affected by jurisdictional error, an order in the nature of mandamus remitting the matter to the second defendant to be determined in accordance with law, and I ordered that the first defendant was to pay the plaintiffs' costs of the proceedings. 2. On 14 November 2018 the first defendant filed a notice of motion, pursuant to r 36.16(1) of the Uniform Civil Procedure Rules 2005 (NSW), seeking to set aside the costs order. In lieu of that costs order the first defendant seeks that the plaintiffs pay the first defendant's costs of the proceedings; alternatively, that there be no order as to the costs to the intent that each party pay their own costs; and in the further alternative, should the costs order not be set aside, that the first defendant be given a certificate pursuant to s 6 of the Suitors' Fund Act 1951 (NSW), if so entitled. 3. Although the costs order had been entered, the first defendant had the right to seek that the order be set aside or varied because the notice of motion was filed within 14 days of the entry of the order: UCPR r 36.16(3A). Submissions 1. The first defendant put forward four bases upon which it was submitted the costs order should be set aside or varied, and a different order made in favour of the first defendant. First, it was submitted that the proceedings were brought as a consequence of the plaintiffs' failure to lodge an application requesting a determination of the issues under both paragraphs of s 58(1) of the Motor Accidents Compensation Act 1999 (NSW). Instead, the plaintiffs only requested a determination of the issue under s 58(1)(b). 2. Secondly, it was submitted that there were clear alternatives available to the plaintiffs apart from seeking to invoke the supervisory jurisdiction of the Court. The first defendant submitted that the present proceedings could have been commenced and then stayed until determination of the issue under s 58(1)(a). In those circumstances, no issue would have arisen under UCPR r 59.10(2) in relation to the time in which proceedings for judicial review must be instituted. 3. In the alternative, the first defendant submitted that the solicitors for the plaintiffs could have written to the first defendant's solicitors putting them on notice that they intended to challenge the decision under s 58(1)(a) and that when that was determined, if adversely to the plaintiffs, judicial review proceedings would be commenced. The first defendant submitted that in those circumstances there could be no doubt that an extension of time would be granted, particularly because the legal effect of the Review Panel's decision on s 58(1)(b) was moot until the issue under s 58(1)(a) had been determined. 4. Thirdly, the first defendant submitted that the basis upon which the plaintiffs succeeded was not a basis pleaded in the summons. Certiorari was refused and a declaration was made together with an order for mandamus when the plaintiffs had sought certiorari. 5. Finally, the first defendant submitted that if the costs order was not set aside, the first defendant should have a certificate under the Suitors' Fund Act. Reference was made to the decision of Harrison J in IAG Ltd t/as NRMA Insurance v Abiad [2018] NSWSC 1603 at [9], although, quite properly, the first defendant drew attention to what was said to be a contrary decision of Henderson v QBE Insurance (Australia) Ltd [2013] NSWCA 480; (2013) 66 MVR 69 at [57] and [58]. 6. The plaintiffs submitted that the judgment held that the Review Panel's Certificates were affected by error on three grounds, namely: 1. The Panel applied the wrong test of causation; 2. The Panel failed to provide adequate reasons; and 3. The Panel failed to engage with the Plaintiffs' arguments as to causation. The plaintiffs submitted that the first defendant strenuously opposed each of those three grounds, and asserted that the Certificates were without error. In that way, the first defendant comprehensively failed in its opposition to the summons. 1. The plaintiffs submitted that the first defendant, by its submissions, impliedly asserted that the plaintiffs' application to the Medical Assessment Service for assessment of a "treatment dispute" was misconceived because the dispute under s 58(1)(a) was not submitted to MAS. The plaintiffs submitted that the first defendant was entitled to, but did not ask MAS to consider the medical assessment matter in s 58(1)(a). 2. The plaintiffs submitted that the first defendant did not seek a stay of the proceedings in this Court pending a decision from MAS in relation to the medical dispute in s 58(1)(a). 3. The plaintiffs submitted that the s 58(1)(a) issue only came into focus because of the reasons of the Review Panel. The Review Panel was not asked to consider that question. The plaintiffs submitted that they were obliged to commence judicial review proceedings within three months after the Review Panel's Certificates. It would have been inappropriate to rely on obtaining an extension, and the likelihood was that the first defendant would strenuously have opposed such an extension. The plaintiffs submitted that there is a degree of hindsight in the first defendant's suggestion that the issue under s 58(1)(a) ought to have been raised with the Review Panel. 4. The plaintiffs submitted that the proceedings in this Court were not without utility because the Review Panel now has the benefit of clear legal direction from the Court as to how the issue of causation under s 58(1)(b) should be approached. 5. The plaintiffs submitted that the costs order should not be varied. Consideration 1. Dr Mobbs first recommended that the first defendant undergo surgery when he saw him for a review in June 2015. On 20 November 2015, Dr Mobbs reiterated that recommendation on 20 November 2015 when he advised the first defendant to undergo a C5/C6 anterior discectomy and fusion. There does not appear to have been a medical dispute about that until the Review Panel, without being asked to do so, expressed a strong contrary view in its report. 2. In the meantime, the first defendant had been assessed by Dr Meakin on 14 March 2017 who identified a causal link between the need for surgery and the second and third accidents. That assessment was then referred to the Review Panel, and the Panel issued its Certificates on 17 August 2017. It was only after that time that an application was lodged by the plaintiffs in relation to a treatment dispute under s 58(1)(a). 3. On one level it is understandable that the parties only perceived that there was a dispute in relation to Dr Mobbs' advice when the members of the Review Panel expressed such a negative view about it. Although, as I said in my earlier judgment at [49], it was unfortunate that the parties appeared not to have discerned at an early enough time the interdependence of the two questions under paragraphs (a) and (b) of s 58(1), I do not think that the time prior to the Review Panel's report is the proper time to consider the parties' response to that issue. 4. It is clear from an examination of the first defendant's written submissions filed 29 March 2018 that the first defendant was alive to the interrelationship between the two questions, and to what that was said to mean for the proceedings in this Court. Indeed, apart from arguing that no errors had been made by the Review Panel, the first defendant first took the point that certiorari was not available by reason of what was said in Wingfoot Australia Partners Pty Ltd v Kocak (2013) 252 CLR 480; [2013] HCA 43 at [25]. The first defendant also submitted that relief should be refused on discretionary grounds because the plaintiffs had lodged an application in respect of a treatment dispute under s 58(1)(a). 5. This matter was first listed for hearing before me on 24 April 2018. On that day counsel for the first defendant was ill and the first defendant's solicitor sought an adjournment of the hearing. That was quite properly not opposed by Senior Counsel for the plaintiffs. I raised at that time the issue of the s 58(1)(a) matter and the following exchanges occurred: HIS HONOUR: You'll see why I'm raising this in a moment, but it seemed to me that there was some force in what Mr Canceri had said, that that matter ought to have been dealt with first. Now, you might disagree about that, but where I'm going with that is to wonder whether this present claim should await that determination or whether you want it determined. Because what you'll end up with in a sense is a theoretical result. REWELL: In one sense yes, although what I envisage would occur, if we succeed and the matter is sent back to a review panel, is that we would seek the agreement of all parties that the terms of reference, if you like, of the review panel be expanded --- HIS HONOUR: I see. REWELL: to deal with both matters. HIS HONOUR: Do it all together. REWELL: To be honest, your Honour, the remarks of the review panel about the need, or lack of it, for this surgery caught us by surprise. Now, with the benefit of hindsight, we can all say, "Look, it would have been much better to put both matters before Dr Meakin and then before the review panel if necessary." We weren't expecting the review panel to launch into a critique of Dr Mobbs' recommendation because they weren't asked to do that. As I say, it's very rare that they buy into a topic that they weren't asked to decide. HIS HONOUR: Yes. I inferred from reading the report that they were a bit alarmed by the thought that such surgery would take place. REWELL: No doubt about that, and they, I think, set out four separate reasons why they believed that it was not in the first defendant's interests to have the surgery and appeared to be doing everything they could to discourage the surgery taking place. That was something they obviously felt the need to do, but it was no real part of their statutory task. HIS HONOUR: Yes, all right. Look, that answers that enquiry, which was really whether we ought to delay this present one until that has been dealt with. We can't do that obviously. REWELL: I don't think it's practical, but there may be a practical solution to the same problem. 1. It seems to me, in the light of the submissions of the first defendant to which I have referred, and to the matter I raised of delaying the judicial review proceedings arising from the Review Panel's Certificates, and given that the substance of the first defendant's submissions in that regard were that no purpose would be achieved by hearing and determining the judicial review proceedings whilstever that other issue remained unresolved, it was incumbent upon the first defendant thereafter to seek any stay of these proceedings so that the s 58(1)(a) issue could first be determined. 2. Instead of moving to stay the proceedings in that way, the first defendant was content to argue, first, that no errors were made by the Review Panel, and then to argue that even if errors were made, relief should be refused either on the absolute ground contained in Wingfoot or on discretionary grounds, both because a decision of this Court would be moot, and because the plaintiffs had latterly raised a treatment dispute with MAS. 3. I do not agree that the onus was on the plaintiffs to seek any stay of the judicial review proceedings. If, however, there was in the first instance such an onus, the responsibility for seeking such a stay moved to the first defendant when it was the first defendant who wished to contend that these proceedings were moot and of no utility. In any event, I do not consider that the proceedings were entirely moot or inutile. I agree with the submission of the plaintiffs that the judgment clarified the causation issue for the Review Panel in relation to the s 58(1)(b) matter. It seems likely also that it may be of some indirect assistance for an Assessor or the Panel when dealing with the s 58(1)(a) issue. 4. I do not agree with the first defendant's submissions that the plaintiffs succeeded on a basis that was not pleaded in the summons. The first prayer for relief in the summons was a declaration that the Review Panel's Certificate was affected by error of law and/or jurisdictional error. That was the relief I granted along with an order for mandamus which was also sought in the summons. Where such a declaration is made and an order for mandamus is made there is no need for an order for certiorari. I refer also to what I said at [59] of my earlier judgment. 5. In Henderson v QBE Insurance Beazley P (seemingly with the agreement of Tobias AJA) said: [54] That leaves the question of costs. If I am correct in the conclusion that the primary judge erred in setting aside the Proper Officer's determination, then his Honour's costs order must also be set aside. Accordingly, the costs issue does not arise. I will, however, briefly state my reasons on that question. [55] The primary judge declined to make an order under the Suitors' Fund Act on the basis that a person exercising power under s 62 did not constitute "a court" for the purpose of the Act. The relevant provisions of that Act are as follows: 6 Costs of certain appeals (1) If an appeal against the decision of a court: (a) to the Supreme Court on a question of law or fact, or (b) to the High Court from a decision of the Supreme Court on a question of law, succeeds, the Supreme Court may, on application, grant to the respondent to the appeal or to any one or more of several respondents to the appeal an indemnity certificate in respect of the appeal ... 6C Payments not otherwise authorised by this Act (1) If: (a) a party to an appeal or other proceedings incurs or is liable to pay costs in the appeal or proceedings, (b) the party is not otherwise entitled to a payment from the Fund in respect of the costs, and (c) the Director-General is of the opinion that a payment from the Fund in respect of the costs, although not authorised by section 6, 6A or 6B, would be within the spirit and intent of those sections, the Director-General may, with the concurrence of the Attorney General, pay from the Fund to the party such amount towards the costs as is assessed by the Director-General having regard to the circumstances of the case.(2) A payment under this section shall not exceed $10,000." [56] In my opinion, his Honour was correct in finding that a determination by a Proper Officer under s 62 did not constitute a decision of "a court". [57] 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. [58] However, s 6C is not a matter in respect of which the court may make an order. Its terms are clear, if the matters specified in s 6C(1)(a), (b) or (c) are satisfied, the Director General has a discretion whether to pay an amount from the Suitors' Fund. That discretion is to be exercised with the concurrence of the Attorney General. It is not a matter in respect of which the Court may make an order, direction, or declaration. Accordingly, had it been necessary to do so, I would have rejected this ground of appeal. 1. The decision in IAG Ltd v Abiad is not inconsistent with Henderson because it is clear that Harrison J's order was only that the unsuccessful party should pay costs to the extent that the Director-General was of the opinion that a payment from the Fund should be made under s 6C of that Act. 2. Although Appeal is defined in s 2(1) of the Suitors Fund Act 1951 (NSW) as including any proceeding in the nature of an appeal, it seems clear from s 6(1) that the only right of this Court to grant an indemnity certificate under the Act is in respect of "an appeal against the decision of a court". That points strongly to the correctness (with great respect) of Beazley P's observation in Henderson at [57] that proceedings such as these are not by way of an appeal but by way of judicial review. 3. Here, the plaintiffs were successful in their claim for judicial review. When the first defendant wishes now to assert that the litigation should have been conducted differently to justify other than the usual costs order, it is necessary to examine the way each party conducted itself. The task bears some similarity to the enquiry that should be made where indemnity costs are sought. The focus is on the conduct of the litigation and not the antecedent matters that led to the litigation: Mead v Watson as Liquidator for Hypec Electronics [2005] NSWCA 133 at [9]. 4. In that way, it is not to the point that the plaintiffs could or should have had both matters under s 58(1)(a) and (b) referred at the same time. The Panel determined the matter submitted to it. The plaintiffs were entitled to challenge the decision. It was open to the first defendant to take courses which were available to him, such as seeking a stay of those proceedings. Instead, he chose to contest every aspect of the proceedings. He was unsuccessful except to the extent of showing that certiorari was unavailable to the plaintiffs, an outcome that did not deny the plaintiffs a remedy. 5. No basis is therefore shown for varying the costs order made by me in the principal judgment. 6. I make these further orders: (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. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 03 December 2018