Cahill v Insurance Australia Limited (No 2) [2019] NSWSC 597

Supreme Court New South Wales

Medium Neutral Citation: Cahill v Insurance Australia Limited (No 2) [2019] NSWSC 597 Hearing dates: In chambers on the papers Date of orders: 23 May 2019 Decision date: 23 May 2019 Jurisdiction: Common Law Before: Campbell J Decision: Suitors Fund Certificate refused Catchwords: COSTS – Application for Suitors' fund certificate – statutory threshold not met – section 6C not a matter for a court – refuse application for certificate Legislation Cited: Motor Accidents Compensation Act 1999 (NSW) Suitors Fund Act 1951 (NSW), s 6 Cases Cited: Cahill v Insurance Australia Ltd [2019] NSWSC 564 Henderson v QBE Insurance (Australia) Ltd [2013] NSWCA 480 Category: Costs Parties: Joanne Cahill (Plaintiff) Insurance Australia Ltd t/as NRMA Insurance (First Defendant) Representation: Counsel: M. Robinson SC together with K. Brown and A. Mykkeltvedt (Plaintiff) K.P. Rewell SC together with J Gumbert (Defendant

Solicitors: Gerard Malouf & Partners (Plaintiff) Sparke Helmore (First Defendant) File Number(s): 2017/374667

Judgment 1. I gave judgment in this matter on 16 May 2019 in favour of the first defendant, Insurance Australia Ltd trading as NRMA insurance (the insurer): Cahill v Insurance Australia Ltd [2019] NSWSC 564. That judgment concerns a challenge by the plaintiff, Joanne Cahill, to a medical certificate issued by a Medical Review Panel under to s 63 of the Motor Accidents Compensation Act 1999 (NSW) (the Act). The plaintiff sought judicial review of, and orders in the nature of certiorari and mandamus setting aside, the medical certificate, or a declaration that it was invalid. The plaintiff submitted that the determination of the Review Panel was vitiated by jurisdictional error or errors of laws on the face of the record. I dismissed the proceedings having found contrary to the plaintiff's argument. My orders (at [60]) were: (1) Refuse relief sought; (2) Dismiss the proceedings; (3) The plaintiff to pay the first defendant's costs. 1. Counsel for the plaintiff applied for an indemnity certificate under the Suitors Fund Act 1951 (NSW) for the adverse costs order, counsel for the first defendant has opposed this order. 2. Counsel for the plaintiff have referred to a number of authorities in support of this application. It is unnecessary to refer to all or any of them in detail as many, with respect, were inapposite, and because there is a threshold difficulty with the application in that the outcome of the proceedings does not engage the statutory conditions for the grant of a certificate. 3. Section 6 of the Act provides: (1) If an appeal against the decision of a court: 1. to the Supreme Court on a question of law or fact, or 2. 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. (My emphasis.) 1. Even if it is accepted that the Review Panel was a court for the purposes of the Act, and judicial review proceedings, an appeal, the "appeal" has been unsuccessful in the Supreme Court and there is no power to grant a certificate. Moreover as the moving party in the proceedings the plaintiff cannot be equated with a respondent to an appeal. 2. Finally, the plaintiff makes reference to 6C(2) of the Act. This plainly is not a matter over which the Court has power but rather, is a matter the Director General. This provision therefore does not assist the plaintiff here. This was explained by Beazley P in Henderson v QBE Insurance (Australia) Ltd [2013] NSWCA 480 at [58] in this way: 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. Conclusion 1. My order is that the Suitors Fund Certificate is refused.