Supreme Court New South Wales Medium Neutral Citation: Cowcher v Allianz Australia Insurance Limited (No.2) [2019] NSWSC 1052 Hearing dates: On the papers Date of orders: 19 August 2019 Decision date: 19 August 2019 Jurisdiction: Common Law Before: Bellew J Decision: The plaintiff is to pay the first defendant's costs, as agreed or assessed. Catchwords: PRACTICE AND PROCEDURE – Costs – Where the plaintiff was unsuccessful in judicial review proceedings – Where the plaintiff sought a certificate pursuant to the Suitors' Fund Act 1951 – Where that Act grants power to issue a certificate to the respondent to a successful appeal – Whether the plaintiff was in the position of a "respondent" – Where her "appeal" had not been successful – Threshold requirements for the issue of a certificate not met – Application for certificate refused – Usual costs order made Legislation Cited: Suitors' Fund Act 1951(NSW) Cases Cited: Allianz Australia Insurance Limited v Tarabay [2013] NSWSC 141; (2013) 62 MVR 537 Allianz Australia Insurance Limited v Ward & Ors [2010] NSWSC 720; (2010) 79 NSWLR 657; (2010) 57 MVR 327 Cahill v Insurance Australia Limited (No.2) [2019] NSWSC 597 CIC Allianz Australia Limited v McDonald & Ors [2012] NSWSC 887; (2012) 61 MVR 382 Cowcher v Allianz Australia Insurance Limited [2019] NSWSC 572. GIO General Limited v Smith & Ors; Insurance Australia Limited t/as NRMA Insurance v Smith & Ors (No.2) [2011] NSWSC 998 IAG Limited v Riley [2013] NSWSC 684; (2013) 64 MVR 191 Insurance Australia Limited t/as NRMA Insurance v Banos (No.2) [2013] NSWSC 1668 Category: Costs Parties: Sharon Cowcher – Plaintiff Allianz Australia Insurance Limited – First defendant Dr Mark Burns as the Approved Medical Assessor, appointed under s 59 of the Motor Accidents Compensation Act 1999 (NSW) – Second defendant The Proper Officer of the Motor Accidents Medical Assessment Service as appointed by SRIA – Third defendant Representation: Counsel: C Hart – Plaintiff J Catsanos – First defendant Solicitors: Bale Boshev – Plaintiff Moray and Agnew – First Defendant File Number(s): 2018/390310 Publication restriction: Nil Judgment INTRODUCTION 1. In these proceedings the plaintiff sought judicial review of the decision of the Proper Officer of the State Insurance Regulatory Authority to refuse her application for a review of a determination of a medical assessor. On 23 May 2019 I gave judgment dismissing the proceedings. [1] At the time of doing so, and in accordance with a request made by counsel for the plaintiff at the conclusion of the hearing, I reserved the question of costs and made orders for the provision of written submissions. Those submissions now having been received, this judgment deals with that question. 2. Counsel for the plaintiff has accepted that costs should follow the event. [2] However, he has sought that I make an order granting the plaintiff a certificate pursuant to the Suitors' Fund Act 1951 (NSW) ("the Act"). The first defendant has chosen not to make any submissions regarding the issue of a certificate under the Act. The relevant legislation 1. Section 6(1) of the Act is in the following terms: 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. 1. The term "court" is defined in the Act as including "such tribunals or other bodies as are prescribed. [3] The submissions of the plaintiff 1. In written submissions, counsel for the plaintiff referred me to a number of authorities in which, he submitted, a certificate pursuant to the Act had been issued to an unsuccessful litigant in circumstances similar to the present. Counsel further submitted that each of those cases supported the proposition that the word "court" in s 6(1) of the Act included the Proper Officer or other relevant decision maker. The authorities to which I was referred included Allianz Australia Insurance Limited v Ward & Ors, [4] GIO General Limited v Smith & Ors; Insurance Australia Limited t/as NRMA Insurance v Smith & Ors (No.2), [5] Insurance Australia Limited t/as NRMA Insurance v Banos (No.2), [6] IAG Limited v Riley, [7] Allianz Australia Insurance Limited v Tarabay, [8] and CIC Allianz Australia Limited v McDonald & Ors. [9] Consideration 1. I have had regard to the authorities to which I was referred. However, they do not address the particular circumstances of the present case, and indeed are distinguishable. Even if it is accepted that the proceedings before me were in the nature of an appeal against a decision of a court, s 6(1) of the Act permits the issue of a certificate if only if the appeal succeeds. The plaintiff, as I have noted, was not successful in the proceedings. That alone precludes the issue of a certificate. Further, s 6(1) confers a power to grant a certificate to the "respondent to the appeal". Given that it was the plaintiff who brought these proceedings it could not be said that she is, for the purposes of s 6(1) of the Act, a respondent. It follows that in my view, the plaintiff has failed to meet the two thresholds imposed by s 6(1). 2. I am fortified in that view by the decision of Campbell J (to which I was not referred in submissions) in Cahill v Insurance Australia Limited (No.2). [10] In that case, his Honour dismissed a challenge by a plaintiff to a determination of a medical review panel, concluding: [11] 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. 1. The circumstances before his Honour were precisely the same as those now before me. Order 1. For those reasons I make the following order: 1. The plaintiff is to pay the first defendant's costs, as agreed or assessed. ********** Endnotes 1. See Cowcher v Allianz Australia Insurance Limited [2019] NSWSC 572. 2. See the plaintiff's written submissions at (1). 3. In s 2. 4. [2010] NSWSC 720; (2010) 79 NSWLR 657; (2010) 57 MVR 327. 5. [2011] NSWSC 998. 6. [2013] NSWSC 1668. 7. [2013] NSWSC 684; (2013) 64 MVR 191. 8. [2013] NSWSC 141; (2013) 62 MVR 537. 9. [2012] NSWSC 887; (2012) 61 MVR 382. 10. [2019] NSWSC 597. 11. At [5]. 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: 19 August 2019