Cowcher v Allianz Australia Insurance Limited (No.2)

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.

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.

Section 6(1) of the Act is in the following terms:

The term “court” is defined in the Act as including “such tribunals or other bodies as are prescribed. [3]

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]

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).

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]

The circumstances before his Honour were precisely the same as those now before me.

For those reasons I make the following order: