Alameddine v Allianz Australia Insurance Limited [2022] NSWPIC 577

MOTOR ACCIDENTS - The claimant alleges injury in a motor vehicle accident on 11 December 2016; claimant commenced proceedings in District Court against Mr Cheaib, driver of vehicle which collided with rear of claimant's vehicle; compulsory third party (CTP) insurer of Mr Cheaib's vehicle (QBE) issued notice declining liability on basis accident caused by unidentified vehicle who pushed Mr Cheaib's vehicle into rear of claimant's vehicle; defendant in District Court proceedings declined liability; claimant made claim on nominal defendant; Allianz on behalf of nominal defendant admitted breach of duty of care but denied liability because claimant had not provided full and satisfactory explanation for delay and had not established due inquiry and search; application for exemption from assessment declined on 31 March 2021; claimant made further application for exemption on basis of change in circumstances; Notice of Motion filed by defendant in District Court proceedings to strike out proceedings dismissed; insurer argued issue estoppel created by earlier decision; claimant relied on Bajramovic v Calubaquid and Nominal Defendant v Manning; Held - Miller v Secretary, Department of Communities and Justice authority for proposition that not necessary to determine whether power exercised by Commission administrative or judicial; issue estoppel not arise because application is interlocutory in nature and there has been a change in circumstances; claimant denies involvement of unidentified vehicle; dismissal of Notice of Motion in District Court; complex issues of liability; "just" resolution of proceedings means claim not suitable for assessment; exemption recommended.

1. This claim is not suitable for assessment under section 92(1)(b) of the Motor Accidents Compensation Act 1999.

RECOMMENDATION - CLAIM NOT SUITABLE FOR ASSESSMENT

1. An application was filed by Souraya Alameddine (the claimant) seeking a discretionary exemption from assessment pursuant to s 92(1)(b) of the Motor Accident Compensation Act, 1999 (the MAC Act) and chapter 14 of the Claims Assessment Guidelines.

1. The claimant sustained injury in a motor vehicle accident on 11 December 2016. She was the driver of vehicle AUK51T which was struck from behind by a vehicle owned and driven by Bashir Robert Cheaib and insured by QBE (Aust) Insurance Limited (QBE). Mr Cheaib and his passenger both allege their vehicle was stationery when it was struck from behind by an unidentified vehicle pushing it into the rear of the claimant's car.
2. The claimant made a claim on QBE on 30 January 2017.
3. QBE issued a notice pursuant to s 81 of the MAC Act denying liability and stating the accident was caused by the fault of an unidentified vehicle.
4. On 3 December 2019 the claimant commenced proceedings in the District Court against Bashir Robert Cheaib seeking damages in respect of injury sustained in the accident.
5. On 1 June 2020 a defence was filed denying breach of duty of care by the defendant (Bashir Robert Cheaib) and asserting that the accident was caused by an unidentified vehicle that collided with the rear of Mr Cheaib's vehicle pushing it into the vehicle driven by the claimant.
6. On 1 June 2020 QBE served a notice pursuant to s 36 of the MAC Act on Allianz Australia Insurance Limited (Allianz) as agent for the Nominal Defendant seeking contribution or indemnity from the Nominal Defendant as joint tortfeasor.
7. On 10 November 2020 a claim was made on the Nominal Defendant by the claimant.
8. On 26 February 2021 Allianz on behalf of the Nominal Defendant issued a notice pursuant to s 81(1) of the MAC Act. Allianz denied liability because a full and satisfactory explanation had not been provided for the delay in making the claim and because no evidence had been provided to establish that due inquiry and search had been undertaken to establish the identity of the unidentified vehicle. However, Allianz admitted the unidentified driver owed a duty of care to the claimant, admitted there was a breach of that duty and admitted that the claimant suffered injury, loss or damage.
9. In proceedings numbered APP-10366959 an application was made by the claimant for a discretionary exemption on the basis there were two defendants/insurers who may be liable for the injury sustained by the claimant. Noting proceedings had been commenced in the District Court as against the defendant Bashir Robert Cheaib and QBE the claimant argued it would be more time effective and cost efficient for the claim against the Nominal Defendant to be exempted from assessment so the claimant could pursue proceedings against both defendants/insurers in the District Court.

1. In proceedings number APP-10366959 Allianz on behalf of the Nominal Defendant opposed the application for exemption on the basis Allianz had admitted fault and the denial of liability related to rejection of the late claim pursuant to s 73 of the MAC Act and for breach of s 34A in respect of due inquiry and search. Allianz argued if the claimant could satisfy the provisions of ss 73 and 34A of the MAC Act an assessment of damages for injury sustained in the accident could proceed.
2. That application was referred to me and I issued a decision dated 31 March 2021. I refused the application for exemption stating as follows:

"14. The claimant's application is predicated on the necessity for the court to determine which of two defendants/insurers may be liable for the Claimant's injury. However, that is not in dispute because Allianz Australia Insurance Limited on behalf of the Nominal Defendant has admitted the unidentified driver owed the Claimant a duty of care, that there was a breach of that duty of care and that as a result the Claimant sustained injury, loss and damage.

1. Allianz Insurance Australia Limited agrees that subject to satisfactory resolution of the procedural disputes as to the late claim and due inquiry and search, damages can be assessed as against the Nominal Defendant.
2. Clause 1.14 of the Claims Assessment Guidelines outlines the objects of CARS, now the Personal Injury Commission in dealing with disputes in connection with claims. The objects include providing a timely, fair and cost effective system for the assessment of claims under the Act.
3. In Zurich Australian Insurance Limited v Motor Accidents Authority of NSW [2006] NSWSC 845 Hoeben J stated at [53] as follows: Most claims will be assessed in accordance with Part 4.4. of the Act. There will be some claims which are exempt from assessment, but they will be in the minority and be the exception. Less such exemptions be granted too freely (and then thereby defeat the objects and purpose of the Act) strict requirements are imposed before a claim is exempt from assessment.
4. There is nothing in the Claimant's submission before me to suggest that either party will not be afforded a fair hearing of the issues in dispute if the matter was to be assessed by the PIC.
5. It seems to me unfair that the Nominal Defendant should be dragged into potentially costly proceedings in the District Court where fault, injury, loss and damage have been admitted and where, subject to determination of the procedural disputes, the claim is capable of assessment. Arguably the proceedings currently before the District Court are misconceived where Allianz Australia Insurance Limited has admitted fault on behalf of the unidentified driver.
6. I am of the view the claim is suitable for assessment at the PIC and decline to recommend the exemption of the claim pursuant to s 92(1)(b) of the Act.
7. I invite the parties to lodge through the portal an application for general assessment and also applications for special assessment in respect of both the late claim dispute and the dispute in request of due inquiry and search.
8. I encourage the parties to attempt to reach resolution of the dispute. I remind the parties the guiding principle to be applied to proceedings in the PIC as set out in s 42 of the Personal Injury Commission, Act 2020 is to facilitate the just, quick and cost effective resolution of the real issues in the proceedings."

1. The current application for exemption was uploaded to the portal on 27 June 2022.
2. The claimant's application for exemption is predicated on the fact that a Notice of Motion for dismissal of the proceedings in the District Court pursuant to rule 13.4 of the Uniform Civil Procedure Rules 2005 was dismissed by the court.
3. The claimant argues that exemption from assessment of these proceedings will allow the claim against the Nominal Defendant to be joined to the current proceedings on foot in the District Court. The claimant argues it would be more time effective and cost efficient for the whole matter to be heard as one before the District Court.

1. Allianz provided submissions dated 27 July 2022 opposing the application for exemption. Allianz submits that it would be costly for the insurer and for the claimant to pursue proceedings in the District Court where legal costs are unrestricted and where Allianz on behalf of the Nominal Defendant has admitted breach of duty of care in the proceedings currently before the Personal Injury Commission (the Commission).
2. Allianz submits the dispute has already been determined, the decision of 31 March 2021 stands and is binding on the parties.
3. Furthermore, Allianz states since the last earlier application there has been a narrowing of the issues in that the Nominal Defendant no longer presses the issue of due search and inquiry. This means the claimant only needs to establish she has a full and satisfactory explanation for delay to enable the claim in the Commission to proceed to assessment.
4. The insurer submits, as follows:

"6. The insurer relies on the Court of Appeal decision of Cachia v Issacs and Others [1985] 3 NSWLR 366 which held a Tribunal had the power to create an issue estoppel.

1. Hope JA, with whom Kirby P agreed, with McHugh JA not deciding, held in determining what issue or what issues may create an issue estoppel regard should be had not only to the issues expressly litigated but to all issues which are legally necessary to the success or failure of the particular claim or defence whether argued or not. This is not relevant to the current case, as the exact issues were expressly 'litigated' in the first application for exemption and that application failed. The claimant has not alleged there were issues that were not raised in first application.
2. Kirby P held the powers contained in the Consumer Claims Tribunal Act 1976, to define the issues and solemnly determine them as between the parties to it, the Consumer Claims Tribunal derives power to create an issue estoppel which will bind those parties in other proceedings. The insurer submits this is no different from the powers of the Personal Injury Commission (the Commission) as contained in the Personal Injuries Commission Act 2020 and the decision binds the parties in the Personal Injury Commission and in other proceedings. The insurer notes, however, that there will not be other proceedings, as the binding decision on the parties is that the matter is not exempt.
3. Kirby P also added, relevant to that Appeal, the importance of the Tribunal, which has wide powers to perform what are, in substance, judicial and certainly quasi-judicial functions, that a feature of the performance of judicial and quasi-judicial functions that reasons will be given, including so that any opportunities of appeal or challenge, incidental to the judicial process, can be availed of by parties disaffected by those decisions. This is not relevant here, as the reasons of Member McTegg of 31 March 2021 are clear and further, the second application has been referred to Member McTegg to again determine.
4. The findings in the decision of 31 March 2021 have not changed. Breach of duty of care of the unidentified driver remains admitted and nothing else has changed in the facts of the case to warrant an exemption application on different grounds."
5. The dispute was the subject of a teleconference on 4 August 2022. I invited the claimant to upload to the portal submissions as to why the application should not be dismissed having regard to the question of issue estoppel raised by the insurer or pursuant to s 54(b) of the Personal Injury Commission Act, 2020 (the PIC Act).
6. Both parties agreed it was appropriate to determine the matter on the papers. Having regard to both s 52 of the PIC Act and Procedural Direction PIC2 I have determined that the dispute can be determined on the papers.

1. The claimant provided submissions dated 1 September 2022. The claimant submits the decision of the Court of Appeal in Bajramovic v Calubaquid[1] is clear authority for the proposition that it is not an abuse of process or estoppel to bring subsequent motions for the same orders even after a contested hearing.
2. The claimant notes the insurer relies on the decision in Cachia[2] which was decided in 1985 well before Bajramovic. Further, the claimant submits it is not clear that Cachia relates to interlocutory decisions.
3. The claimant concedes that ordinarily, the subsequent application should rely on a material change in circumstances or new material, however, that is not strictly necessary as per Nominal Defendant v Manning[3].
4. However, the claimant submits there is a change of circumstances, noting at the time of the earlier application there was some anticipation that the defendant in the proceedings in the District Court would have the claim struck out. The claimant notes the Judicial Registrar of the District Court disagreed and the defendant's Notice of Motion was dismissed. As a result, the claim in the District Court will proceed to hearing.
5. The claimant stated these submissions did not address the merits of the exemption application, only the estoppel issue and reserved the right to furnish additional submissions.

1. Allianz provided submissions dated 6 September 2022.
2. Allianz notes Bajramovic and Manning are distinguishable in that they both involved applications for extension of time. Allianz submits in Bajramovic the court failed to consider the case on its merits without consideration as to the injustice that may flow to the claimant whereas in the current dispute there is no injustice to the claimant only to Allianz who has admitted fault.
3. Allianz submits Manning was not a repetition but a genuine endeavour to repair the deficiencies of the first application, where the claimant was let down by his solicitors. It is submitted the current application is a repetition and an abuse of process.
4. Allianz submits there is no real change of circumstances. Fault was and remains admitted. Allianz submits that seeking to maintain proceedings and join Allianz to proceedings where fault is denied (the District Court proceedings) makes no sense.
5. Noting the claimant reserved her right to provide submissions on the merits of the exemption application I directed the claimant to provide any further submissions on or before 16 September 2022 with Allianz to provide any submissions in reply, if required, on or before 23 September 2022.

Claimant's submissions on the merits of the exemption application

1. The claimant provided further submissions dated 23 September 2022.
2. The claimant states there is no dispute that the driver of the vehicle which struck the claimant was Mr Cheaib, the defendant to the District Court proceedings. Mr Cheaib alleges the accident occurred when an unidentified vehicle struck him from behind, causing his car to be pushed into the claimant's car.
3. The claimant disputes there was an unidentified vehicle. She did not see any such vehicle. Whilst the Nominal Defendant has admitted liability for the unidentified vehicle it is submitted that admission was made based on statements provided by Mr Cheaib and his passenger without reference to the claimant. The claimant submits there are significant discrepancies as to the narratives of the claimant and of Mr Cheaib and his passenger.
4. On the advice of her lawyers the claimant served a claim form on the Nominal Defendant but submits the actions of Mr Cheaib have prejudiced the claimant and her capacity to "explain" any delay. The claimant submits her difficulty in providing a full and satisfactory explanation for the delay should not be underestimated and notes Alllianz has rejected her explanation that she was unaware of and still disputes the existence of a third vehicle.
5. The claimant notes in dismissing the Notice of Motion for dismissal of the proceedings in the District Court, the court noted the significant discrepancies in the narratives and dismissed the Notice of Motion. The proceedings in the District Court remain in the inactive list with leave to restore on seven days' notice.
6. The claimant submits the evidence in the District Court proceedings will be relevant to any proceedings before the Commission and the claimant proposes to cross examine Mr Cheaib as to the accident and the presence of the alleged third vehicle.
7. The claimant submits if the claim against Allianz is not exempted from assessment, she will be required to give evidence twice and there is the possibility of inconsistent determinations.
8. The claimant submits the guiding principle of the Commission "to facilitate the just, quick, and cost-effective resolution of the real issues in the proceedings" will be met by the exemption of this claim allowing the claimant to pursue proceedings against both Mr Cheaib and the Nominal Defendant in the District Court.

1. Allianz uploaded submissions to the portal on 30 September 2022. Allianz states:

"The insurer submits there cannot be different outcomes or inconsistent findings when fault has been admitted by the Nominal Defendant. That outcome is a certainty in the PIC and can be the only outcome in Court. The insurer presses for the application for exemption to be dismissed".

1. In Miller v Secretary, Department of Communities and Justice [2022] NSWCA 190 the Court of Appeal recently considered the application of the principle of Anshun estoppel to proceedings in the Workers Compensation Division of the Commission[4]. Whilst Anshun estoppel in the context of the workers compensation legislation relates to disputes concerning the whole issue of liability to pay compensation the Court held that Anshun estoppel is "neither a formality, nor a technicality, but a principle of law of fundamental importance which bears squarely upon the rule of law and issues of fairness and justice"[5].
2. Further, the court held it was not necessary to determine whether the power exercised by the Commission was administrative or judicial citing the decision of the High Court in Tomlinson v Ramsey Food Processing which stated at [21]:

"Estoppel in relation to judicial determinations is of a different nature. It is a common law doctrine informed, in its relevant application, by ... considerations of finality and fairness. Yet its operation is not confined to an exercise of judicial power; it also operates in the context of a final judgment having been rendered in other adversarial proceedings. It operates in such a context as estoppel operates in other contexts: as a rule of law, to preclude the assertion of a right or obligation or the raising of an issue of fact or law."[6]

1. Arguably, having regard to the decision in Miller the principles of issue estoppel also apply to decisions of the Motor Accident Division of the Commission.
2. In Bajromovic the Court of Appeal referring to the decision of the High Court in Rogers v The Queen stated the principles of res judicata and issue estoppel are desirable to ensure finality and to avoid inconsistency of judgements, however, the Court of Appeal noted they may not apply in relation to interlocutory orders where there has been no determination on the full merits.[7]
3. Further, in Bajromovic the Court noted where an application for interlocutory relief is refused, the court has jurisdiction to entertain a second application for the same relief. However, the Court also noted limits should be imposed stating "it may well be an abuse of process for a party who has been unsuccessful in obtaining interlocutory relief or in resisting interlocutory relief to re-litigate the very same question".[8]
4. However, the Court also stated at [45]:

"It would be too simplistic a view to limit the circumstances in which a second application might be made after an unsuccessful application to the situation where there has been a change of circumstances or evidence has become available that was not available at the time of the original hearing. The overriding requirement is that the outcome of any second application for interlocutory relief is a just one".[9]

1. I do not consider the question of issue estoppel arises where the application before me is an interlocutory application and where the further application is brought on the basis of a change of circumstances.

1. There are two matters which I am satisfied constitute a change of circumstances. For the first time I have been informed that the claimant disputes there was an unidentified motor vehicle involved in the accident. Notwithstanding the admission of breach of duty of care by Allianz on behalf of the Nominal Defendant there is a possibility that such an admission may be withdrawn if the evidence establishes, following the cross examination of Mr Cheaib and his passenger, who I note is the brother of Mr Cheaib, that there was no unidentified vehicle involved in the accident.
2. If, as the claimant asserts, Alllianz has rejected her explanation that she was unaware of and still disputes the existence of a third vehicle, maintaining the proceedings in the Commission may prejudice the claimant in establishing a full and satisfactory explanation for the delay in pursuing her claim against the Nominal Defendant, even though on the claimant's instructions there is no basis for the claim against the Nominal Defendant at all.
3. Secondly, whilst the proceedings in the District Court were on foot when I determined the first application for exemption on 31 March 2021 the District Court has since determined and dismissed on its merits a Notice of Motion for dismissal of those proceedings filed by the defendant.
4. The Personal Injury Commission Rules 2021 apply to an application for exemption under section 92(1)(b) of the MAC Act. Rule 99(2) states in determining whether a claim is not suitable for assessment the Commission must consider the objects of the PIC Act and the circumstances of the claim. Rule 99(3) relevantly provides:

"Without limiting the matters that may be considered, the Commission may consider the following -

(a) whether the claim involves complex legal or factual issues, or complex issues in the assessment of the amount of the claim,

(b) whether the claim involves issues of liability, including contributory negligence, fault or causation,

(c) whether a claimant or witness, considered by the Commission to be a material witness, resides outside the State,

(d) whether a claimant or insurer seeks to proceed against one or more non-CTP parties,

(e) whether the insurer alleges that a person has made a false or misleading statement in a material particular in relation to the injuries, loss or damage sustained by the claimant in the accident giving rise to the claim".

1. While the District Court proceedings remain on foot the claimant is currently in the unenviable position of having proceedings on foot arising out of the same accident in two separate forums.
2. Indeed, I fail to see how the claimant can pursue separate proceedings seeking damages arising out of the one accident in two different forums, where she is only entitled to one award of damages for injury sustained in the accident.
3. Whilst I understand the reluctance of the Nominal Defendant to be dragged into potentially costly proceedings in the District Court, I am satisfied the Nominal Defendant will have the protection of the unrestricted costs provisions which will govern those proceedings.
4. I find the claim involves complex legal or factual issues and issues of liability including fault which can be more adequately dealt with in the District Court in conjunction with the proceedings which remain on foot against Bashir Robert Cheaib.
5. Notwithstanding the admission of breach of duty of care by the insurer on behalf of the Nominal Defendant I cannot be satisfied the claimant will be afforded a fair hearing of the issues in dispute if these proceedings were to remain in the Commission.
6. I find the guiding principle of the Commission set out in s 42 of the PIC Act including the requirement to facilitate not only the quick and cost effective resolution of the real issues in the proceedings but also the "just" resolution of proceedings means this claim is not suitable for assessment.

1. Having made a preliminary assessment of the claim, I determine for the reasons set out above that this claim is not suitable for assessment under section 92(1)(b) of the MAC Act and I recommend to the President that it be exempt from assessment.

[1] Bajramovic v Calubaquid [2015] NSWCA 139.

[2] Cachia v Isaacs [1985] 3 NSWLR 366.

[3] Nominal Defendant v Manning [2000] NSWCA 80; (2000) 50 NSWLR 139.

[4] Miller v Secretary, Department of Communities and Justice [2022] NSWCA 190.

[5] Miller v Secretary, Department of Communities and Justice [2022] NSWCA 190, [123].

[6] Miller v Secretary, Department of Communities and Justice [2022] NSWCA 190, [124]: Tomlinson v Ramsay Food Processing Pty Ltd ( 2015) 256 CLR 507; [2015] HCA 44.

[7] Rogers v The Queen [1994] HCA 42; 181 CLR 251; Bajramovic v Calubaquid [2015] NSWCA 139, [39].

[8] Bajramovic v Calubaquid [2015] NSWCA 139, [40].

[9] Bajramovic v Calubaquid [2015] NSWCA 139, [45].