CIC Allianz Insurance Ltd v Erturk & Ors

Travelling south in lane 2 of 2 approximately 2-3 kms south of Horsley Drive, approaching Elizabeth Drive Exit, overtaking 2 cars at a speed of approximately 98-100km/h. Slowing slightly due to incline, checked mirrors on left to see if I was clear of the overtaken cars, noticed grey Lexus near back axles of trailer, passed exit, engaged indicators to change lanes, checked mirrors again in which I can see left lane clear, start changing lane and then contact is made with driver's side of grey Lexus, which spins him across the front of my truck [there are four words that have been obliterated] and off the road into the barrier on the left hand side backwards." 34 Mr Erturk's s 72(2)(a) notice came before Mr Roy Rajapakse, a senior claims consultant employed by the plaintiff. Mr Rajapakse has had the management of Mr Erturk's claim. On 28 March 2007 he made inquiries, he thought, about Mr Erturk's claim. I infer that he had in front of him the accident report concerning the 17 November accident. I make no inference about his having available to him, then, the "attached statement". It seems most likely that he did not. 35 On 28 March 2007 Mr Rajapakse telephoned Mr Tuck. He made a file note of the conversation. The file note is in the following terms: "28.3.07 Rang Michael Tuck (O/I [? our insured] driver - ph [number given]) and asked him to describe circumstances of the accident.

• he was driving his truck on M7 (going sth) and wanting to turn into Elizabeth St,

• he thought he had enough room + he had checked to see if other veh's but when he turned © veh collided into his veh.

• he said it was his fault as he should've been more careful

• he admits fault RR" 36 It is impossible to reconcile this account with the account in the written statement. 37 It is plain that when Mr Rajapakse telephoned Mr Tuck he had before him the wrong accident form. He has given uncontested evidence that he did not see the 22 October accident report form until 24 November 2008, when it was sent to him by the plaintiff's solicitors. 38 On 29 March 2007 Mr Rajapakse sent to the solicitors representing Mr Erturk a document headed "Section 81 Notice". It contained, as "Our reference" the number 37N013957. Relevantly, the notice contained the following: "… we are now in a position to admit a breach of duty of care in relation to the circumstance of the above accident.

This admission is made after considering all the relevant information available at this time. However, we reserve our right to withdraw our admission and reassess our position if, at a later date, further information is necessary that would cause us to alter our view.

Please note we are still awaiting a Police report and once received a copy will be forwarded to you.

We will now consider payment of all reasonable and necessary medical and rehabilitation expenses …" 39 The terminology used is not entirely in accordance with s 81 - s 81 requires notice whether the insurer "admits or denies liability for the claim" but permits an insurer to admit liability for only part of the claim (sub-s (2)). To admit, as did the plaintiff, "breach of duty of care", was something less than a full admission of liability - it encompassed duty of care, and breach of duty of care, but not injury, loss and damage. It was a partial admission of liability. 40 It was on the basis of Mr Tuck's admission of responsibility (to use a neutral term) that Mr Rajapakse sent the s 81 notice on 29 March 2007. How Mr Rajapakse reconciled the information given to him by Mr Tuck with the detail of the 22 October accident given by Mr Erturk is a mystery. In any event, he accepted Mr Tuck's acknowledgment of fault. 41 On 3 July 2007 the plaintiff received a police report in relation to the October 22 accident. Under the heading "Crash summary details" the following appears: "Vehicle 1 [the Lantrans Holding truck] travelled east upon Parramatta Road Flemington in lane 3. Driver states that he observed a green arrow to the right at the intersection of Parramatta Rd and Centenary Dr. Vehicle 1 travelled through the intersection a short distance before vehicle 2 [Mr Erturk's vehicle], travelling westbound upon Parramatta Rd collided with vehicle 1. Driver 2 [Mr Erturk] states he also had a green signal." 42 On 18 September 2008 Mr Erturk lodged, on the form provided, an application for assessment of his claim under s 94 of the Act. This set out details of his claim and attached medical reports and other documents. 43 The form contained a question "Is this is a claim where liability is wholly denied?". Acting, no doubt, on the s 81 notice admitting "breach of duty of care", Mr Erturk (or his solicitor) ticked the "No" box. 44 On 5 November 2008 the plaintiff lodged its reply to Mr Erturk's application. A section of the form, headed "Details about liability" makes provision for ticking "Yes" or "No" boxes to a question "Is there a dispute about liability?"; the plaintiff ticked neither box, but inserted, under another heading, "Nature of dispute": "There may be a dispute about liability. The section 81 notice was issued in error and liability is presently being reviewed." 45 Officers of the plaintiff then began making inquiries, initially by attempting to locate Mr Ridley. The plaintiff engaged solicitors. It was then (on 19 November) that the accident report form signed by Mr Ridley came to light. How it did so, and where it had been in the interim, is not disclosed in the evidence. However, I am satisfied that it had been, at some stage, in the possession of the plaintiff. That is an inescapable conclusion from the insertion of the claim number which matched the number given to the claim made by Mr Erturk. 46 On 11 December 2008 the plaintiff's solicitors wrote to Mr Erturk's solicitors. They stated that the s 81 notice of 29 March had been issued by mistake. They said that investigations had indicated that Mr Ridley was not at fault in the collision, because he was turning right in accordance with a green traffic arrow, and that Mr Erturk had driven through the intersection contrary to a red light. They invited Mr Erturk's solicitors to agree that (in accordance with s 92(1)(a) and the Guidelines) the claim ought to be exempted from the assessment process. 47 There is no evidence of any direct reply to this communication. However, it would be unsurprising if Mr Erturk's solicitors advised him not to yield willingly the advantage he had by the admission of liability, and the course of events thereafter shows that he did not do so. 48 The assessment process commenced and at least two preliminary conferences took place, before claims assessor Mr Paul Curtis (the fourth defendant), on 12 and 16 December 2008. 49 At the latter of these the plaintiff indicated that it wished to make an application for exemption pursuant to s 92(1)(a) or, alternatively, s 92(1)(b). 50 On 13 January 2009 the plaintiff purported to issue a (further) notice under s 81, this time denying liability. On the same date the plaintiff lodged an application, under s 92(1)(a), for exemption from the claims assessment process. On 3 February 2009 Mr Erturk's solicitors lodged a reply to that application. 51 Although, as will be seen, the legislation does not make any provision for, or recognise, a second s 81 notice where liability has been admitted, I will, for convenience and clarity, refer to the 29 March notice as "the first s 81 notice" and to the 13 January notice as "the second s 81 notice". 52 In oral submissions counsel for the plaintiff expressly disclaimed reliance on the second s 81 notice as valid. His contention was that the first notice, because founded upon a mistaken understanding of the description of the accident given by the insured's driver, was ineffective - a nullity. If that were so, then there is no s 81 notice, and the denial of liability deemed, by s 81(3) to operate, comes into effect, thus opening the way for exemption under s 92(1)(a). 53 On 13 February 2009 the PCA wrote to the parties, setting out something of the history, and requiring submissions on three matters. These were: "(i) Is a notice issued by mistake an invalid notice and of no effect?

(ii) Can an insurer that has issued a section 81 notice by mistake issue a second notice?

(iii) Does the PCA or an Assessor have power under the Act or Guidelines to determine whether a section 81 notice is invalid because it was made by mistake?" 54 The parties responded on 6 and 13 March respectively. 55 On 3 April 2009 the PCA dismissed the plaintiff's application for exemption under s 92(1)(a), giving reasons. This is the first decision subject to challenge in these proceedings. It will be necessary to consider the reasons given by the PCA. 56 The PCA ruled that exemption under s 92(1)(b) was a matter for the claims assessor, Mr Curtis. 57 Accordingly, on 17 April 2009 the plaintiff applied to Assessor Curtis for exemption under s 92(1)(b). To be exempt from the assessment process pursuant to that subparagraph, it was necessary that a claims assessor make a preliminary assessment of the claim and determine, with the approval of the PCA, that it was not suitable for assessment under Pt 4.4. 58 On 13 May 2009, having received written submissions from the plaintiff and Mr Erturk's solicitors, Assessor Curtis determined that he was not satisfied that the claim was not suitable for assessment under Pt 4.4. He therefore dismissed the application, giving reasons. This is the second decision the subject of challenge. Again, it will be necessary to return to consider the reasons given. 59 Mr Erturk's claim then proceeded to assessment. On 11 September 2009 Assessor Curtis issued a certificate, in accordance with s 94 of the Act. He did this on the basis that the plaintiff had admitted liability, and that the only matter in issue was quantum of damages. He assessed damages in a specified sum. That was entirely in accord with the two previous decisions. It is the third decision subject to challenge. As I understand it, the challenge is not to any error said to be identifiable in the approach to the quantification, but that the process rested upon the two earlier - assertedly flawed - decisions.

Relief claimed 60 The plaintiff seeks nine substantive orders. They are: "1 A declaration or declarations that: (a) the plaintiff insurer has not accepted ' liability under the claim' within the meaning of and for the purposes of section 95(2)(a) of the Motor Accidents Compensation Act 1999 …; and that,

(b) the assessment certificate of the fourth defendant Claims Assessor of an amount of damages for liability under a claim made on 11 September 2009 under Part 4.4 of the MAC Act is not binding on the plaintiff.

2 A declaration that the letter from the plaintiff dated 29 March 2007 to the solicitors for the first defendant did not constitute a valid or lawful notice within the meaning of section 81 of the MAC Act.

3 A declaration that the first defendant's claim for assessment of damages lodged before the second defendant is 'exempt from assessment' within the meaning of that expression in section 92(1)(a) of the MAC Act.

4 An order in the nature of certiorari or, alternatively, a declaration setting aside or declaring invalid the determination of the Principal Claims Assessor ('PCA'), the third defendant, made on 3 April 2009 purportedly pursuant to section 92(1)(a) of the MAC Act to refuse the plaintiff's application for exemption from assessment under Part 4.4 of the Act ('Claims Assessment and Resolution') (' the PCA exemption decision ').

5 An order in the nature of certiorari or, alternatively, a declaration setting aside or declaring invalid the determination of the Claims Assessor, the fourth defendant, made on 13 May 2009 purportedly pursuant to section 92(1)(b) of the MAC Act to refuse the plaintiff's application for exemption from assessment under Part 4.4 of the Act (' the Claims Assessor's exemption decision ').

6 An order in the nature of certiorari or, alternatively, a declaration setting aside or declaring invalid the certificate and determination of the Claims Assessor, the fourth defendant, made on 11 September 2009 purported pursuant to section 94(1)(b) of the MAC Act to assess the issue of liability for the first defendant's claim before the Authority below (' the Claims Assessor's assessment decision ').

7 An order in the nature of prohibition or, alternatively, an injunction preventing the defendants or any of their officers, servants or agents from acting on or taking any further step in relation to the plaintiff in reliance on the PCA exemption decision, the claims assessor's exemption decision and/or the claims assessor's assessment decision.

8 An order in the nature of mandamus or an injunction requiring the third defendant to issue the plaintiff with a certificate pursuant to section 92(2) of the MAC Act (enabling court proceedings to be commenced in respect of the claim concerned).

9 Alternatively, an order in the nature of mandamus remitting the plaintiff's exemption application(s) to the Principal Claims Assessor and/or Claims Assessor for determination by either or both of them of the plaintiff's exemption application(s) according to law."

Grounds of the application 61 The amended summons specifies a number of grounds of the application. One (in a paragraph numbered 7) was not pressed. 62 I shall attempt to summarise the grounds as set out in the amended summons. It will be necessary to deal, also, with the submissions that were put, both in writing and orally, on behalf of the plaintiff. 63 The grounds pleaded are, in essence:

(i) that the plaintiff had not accepted liability under Mr Erturk's claim within the meaning of and for the purposes of s 95(2)(a) of the Act; that the plaintiff's letter dated 29 March 2007 [the first s 81 notice] did not constitute a valid or lawful notice within the meaning of s 81 because a fundamental mistake or error had occurred in issuing the letter such that it was not a notice pursuant to s 81; accordingly, the assessment certificate of Assessor Curtis [the third decision challenged] is not binding upon the plaintiff;

(ii) the first decision challenged, the PCA's exemption decision (s 94(1)(a)), is invalid because the PCA fell into jurisdictional error and/or made an error of law on the face of the record or constructively failed to exercise her jurisdiction in relation to the plaintiff's application for exemption because she: "(a) Wrongly asserted that she did not have the 'power' to determine whether or not the letter from the plaintiff dated 29 March 2007 to the solicitors for the first defendant constituted a valid or lawful notice within the meaning of section 81 of [the Act] and in the premises where the plaintiff asserted and provided evidence that a fundamental mistake or error had occurred in issuing the said letter and that a 'breach of duty of care' should not have been so admitted …; and/or

(b) Wrongly failed to go behind errors on the 'face' of the letter from the plaintiff dated 29 March 2007 in her consideration of the plaintiff's exemption application …";

(iii) that the second decision challenged, Assessor Curtis' exemption decision (s 94(1)(b)), was attended by jurisdictional error and/or error on the face of the record in that Assessor Curtis misunderstood or misconstrued the nature of his discretionary power; in particular, he: (a) wrongly held that the plaintiff's application was in the nature of an appeal from the PCA's earlier determination;

(b) wrongly characterised the "liability status" of Mr Erturk's claim;

(c) wrongly considered himself bound by the earlier determination of the PCA and thereby failed to consider the validity of the first s 81 notice and failed to look behind the notice;

(iv) that the third challenged decision, Assessor Curtis' assessment decision, was attended by jurisdictional error and/or error of law on the face of the record in that Assessor Curtis relied upon the validity of the PCA's exemption decision and/or his own exemption decision. 64 Finally, paragraphs 10 and 11 of the specified grounds are in the following terms: "10 The Court should determine that in circumstances where a letter is sent by an insurer to a claimant purportedly pursuant to section 81 of the MAC Act in circumstances where the said letter was afflicted or affected by a fundamental mistake or error in its creation and/or its sending, such a letter constituted no notice at all pursuant to section 81.

11 The court should make the declarations sought by the plaintiff in circumstances where an officer of the plaintiff, by reason of his fundamental mistake or error, does not have the capacity, authority or power to bind or commit the insurer to the operation of section 81 of the MAC Act by reason of his mistakenly or erroneously sending such a letter." 65 The orders and declarations sought on behalf of the plaintiff may be characterised as follows (I have paraphrased the prayers in the amended summons): Declarations:

1-3 (i) that the plaintiff has not accepted "liability under [Mr Erturk's] claim"; (ii) that the assessment certificate of Assessor Curtis on the quantum of damages is not binding on the plaintiff;

(iii) that the first s 81 notice did not constitute a valid or lawful notice within the meaning of s 81;

(iv) that Mr Erturk's claim for damages is exempt from assessment pursuant to s 92(1)(a); Orders:

4 "An order in the nature of certiorari or, alternatively, a declaration setting aside or declaring invalid the determination of the PCA" of 3 April 2009 refusing the plaintiff's claim for exemption under s 92(1)(a);

5 "An order in the nature of certiorari or, alternatively, a declaration setting aside or declaring invalid the determination of" Assessor Curtis of 13 May 2009 refusing the plaintiff's application for exemption from assessment under s 92(1)(b);

6 "An order in the nature of certiorari or, alternatively, a declaration setting aside or declaring invalid the certificate and determination of" Assessor Curtis of 11 September 2009 under s 94(1)(b) to assess the liability of the plaintiff for Mr Erturk's claim;

7 An order in the nature of prohibition or, alternatively, an injunction restraining the defendants from acting on or taking any further step in reliance on the PCA's exemption decision, on Assessor Curtis' exemption decision and/or Assessor Curtis' assessment decision;

8 An order in the nature of mandamus or an injunction requiring the PCA to issue the plaintiff with a certificate under s 92(2) (enabling court proceedings to be commenced in respect of the claim);

9 Alternatively, an order in the nature of mandamus remitting the plaintiff's exemption application(s) to the PCA and/or Assessor Curtis for determination according to law. 66 The plaintiff relied upon the powers conferred on this Court by s 69 of the Supreme Court Act 1970. That section relevantly provides as follows: "(1) Where formerly: (a) the Court had jurisdiction to grant any relief or remedy or do any other thing by way of writ, whether of prohibition, mandamus, certiorari or of any other description, or (b) in any proceedings in the Court for any relief or remedy any writ might have issued out of the Court for the purpose of the commencement or conduct of the proceedings, or otherwise in relation to the proceedings, whether the writ might have issued pursuant to any rule or order of the Court or of course, then, after the commencement of this Act: (c) the Court shall continue to have jurisdiction to grant that relief or remedy or to do that thing; but (d) shall not issue any such writ, and (e) shall grant that relief or remedy or do that thing by way of judgment or order under this Act and the rules, and (f) proceedings for that relief or remedy or for the doing of that thing shall be in accordance with this Act and the rules. (2) … (3) It is declared that the jurisdiction of the Court to grant any relief or remedy in the nature of a writ of certiorari includes jurisdiction to quash the ultimate determination of a court or tribunal in any proceedings if that determination has been made on the basis of an error of law that appears on the face of the record of the proceedings. (4) For the purposes of subsection (3), the face of the record includes the reasons expressed by the court or tribunal for its ultimate determination. (5) …" 67 On behalf of the plaintiff it was contended that an alternative route to achieving the same end was the declaratory process. Either way, it is necessary that the plaintiff establish error of law in the decision making process. 68 The plaintiff's principal contention was that jurisdictional error infected either or both of the first and second challenged decisions, and that, as the third challenged decision relied upon each of those, it also was affected by the same error. 69 What constitutes jurisdictional error has very recently been clarified by the High Court in Kirk v Industrial Relations Commission; Kirk Group Holdings Pty Ltd v WorkCover Authority of NSW [2010] HCA 1. Counsel argued that this decision is of no, or limited relevance, because it concerns an inferior court, and not, as here, an administrative tribunal. It is not necessary to embark upon a consideration of whether that distinction continues to operate (but see Kirk, [68]-[70]). The first inquiry is whether any error of law is to be found in either of the first or second decisions. If there were such an error, it may then be necessary to consider whether it ought to be characterised as jurisdictional or on the face of the record, providing the basis for an order in the nature of certiorari. 70 As will be seen, I am satisfied that no such error is identifiable. Accordingly, it is unnecessary to complicate this judgment with the niceties of administrative law that might otherwise arise. 71 The most convenient course is to deal with the challenges made to each decision in turn.

The first decision: the PCA's refusal to exempt the claim 72 The first decision challenged is that of the PCA made on 3 April 2009, declining to exempt Mr Erturk's claim, either under s 92(1)(a) or s 92(1)(b), from the assessment process. It is, however, only the refusal to exempt under s 92(1)(a) that attracted argument; the plaintiff appears to accept that a s 92(1)(b) decision lies within the jurisdiction of a claims assessor, in this instance Assessor Curtis. 73 In her reasons for decision, the PCA set out the history of Mr Erturk's claim. She said that the plaintiff had issued two "notices" under s 81. She identified six issues that had arisen for determination, as follows: "a. What does section 81 allow [the plaintiff] to do?

b. What has [the plaintiff] done - the first notice?

c. What has [the plaintiff] done - the second notice?

d. Do I have power to consider whether a mistake was made?

f. Is the claim exempt from assessment?" 74 She proceeded to deal carefully with each of those issues. I will set out the salient points of her reasoning.

The first issue: s 81 75 The PCA set out and then paraphrased s 81. She noted that s 81 did not make provision for a number of alternative courses that could be adopted by the insurer; specifically, s 81 makes no provision for an insurer to deny liability after first having made an admission (it does permit the reversal of a denial of liability).

The second issue: the first s 81 notice 76 By reason of s 81(1), the plaintiff had three months from 14 December 2007 to give its s 81 notice. By reason of s 81(3), if it failed to do so, it was deemed to have denied liability. 77 The time for filing the s 81 notice expired on 15 March 2008, by which time the plaintiff had not filed any notice. Accordingly, by sub-s (3), it was deemed to have denied liability. However, by reason of s 81(4), the plaintiff was able to admit liability after the deemed denial, as it did by the first s 81 notice on 29 March. 78 The PCA accordingly held that the first s 81 notice "undid the deemed denial". She noted that, for Mr Erturk's claim to succeed, he would need to establish three things - (i) duty of care; (ii) breach of duty of care; (iii) injury, loss and damage. 79 The PCA held that the s 81 notice amounted to a partial admission of liability within the meaning of s 81(2) (that is, of the existence of a duty of care, and breach of that duty); Mr Erturk was put to proof on issues of loss and damage. 80 The PCA determined that the first s 81 notice sufficiently complied with s 81 to be valid.

The third issue: the second s 81 notice 81 The PCA noted that both accident reports (that is, the accident report referable to the Ridley accident, and that referable to the Tuck accident) bore the same claim number. She said: "Whilst I have no evidence on the point it appears logical to assume they were both on the insurer's file at the time Mr Rajapaske (sic) made a decision on liability." 82 [Counsel for the plaintiff challenges this factual assumption. However, in my opinion, it was correct, at least to the extent that both reports were, or at least had been, in the possession of the plaintiff. That inference is inescapable, having regard to the claim number - a number assigned by the plaintiff - on each.]

The fourth issue: power of PCA to consider mistake 83 The PCA considered that her power to decide whether a mistake was made in issuing the notice was limited to "what appears on the face of the notice"; her power did not extend to considering whether the notice was issued by mistake. 84 She drew on her (considerable) experience of dealing with applications for exemption, to create some kind of analogy with cases in which claimants contended that a decision on the part of an insurer not to admit liability was unreasonable. 85 She noted that the plaintiff did not contend that what was contained in the notice was a mistake: it was that the decision to admit liability was wrong and based on a mistake by the claims officer. She said: "The Notice issued by [the plaintiff] on 29 March 2007 nominates the Claimant as Baha Ertuk (sic) and specifies the correct claim number, the correct date and the correct location. It does not identify the insured's negligent driver. On its face that notice is a valid section 81 notice issued by the insurer in respect of Mr Ertuk's (sic) claim. I am satisfied that this notice is the written notice issued by [the plaintiff] to Mr Erturk communicating its decision on whether liability is admitted or denied for Mr Erturk's claim. 31. I might have a different view if for example the notice that was issued nominated the date of accident as 17 November 2006 (the wrong date), the M7 motorway (the wrong location) and Mr Tuck's negligent driving (the wrong driver). But there is nothing on the face of the 29 March 2007 notice to suggest anything other than it is the insurer's notice in respect of Mr Erturk's accident and claim."

The fifth issue: a second s 81 notice? 86 The PCA considered that an insurer cannot issue an amended s 81 notice. She cited The Nominal Defendant v Gabriel [2007] NSWCA 52; 71 NSWLR 150, per Campbell JA and QBE Insurance v Motor Accidents Authority [2008] NSWSC 434, per Harrison AsJ as authority for that proposition. She recognised that the plaintiff was not seeking to issue an amended s 81 notice: its case was that the first notice was "invalid and is in fact no notice at all". Since she had already found, in her consideration of the second issue, that the first s 81 notice was valid, the reality was that the plaintiff was seeking to issue an amended notice - something it was not permitted to do.

The sixth issue: exemptible claim? 87 The PCA ruled that the first s 81 notice was valid and the second had no effect. Mr Erturk's claim was therefore not one that must be exempted under s 92(1)(a) and ch 8.11.1 of the Guidelines. She therefore dismissed the plaintiff's application for exemption under s 94(1)(a). 88 She then considered the claim for exemption under s 92(1)(b). She held that that was a matter for Claims Assessor Curtis. 89 She noted that the plaintiff argued that the question of validity of the first s 81 notice "is a complex one" and therefore not suitable for assessment. She said that, should the claim be exempted under s 92(1)(b), that issue would never be before the court. She referred again to Gabriel as authority for the proposition that a s 81 notice has "no added significance" for the court further than as an out of court admission which may be departed from in an insurer's defence to court proceedings, should such proceedings take place.

Error of law 90 The plaintiff's position was put succinctly in written submissions as follows: "30. The proper construction of section 81 must be that any notice issued by an insurer must be one issued addressing or having regard to ' the claim ' the subject of the dispute before [the Authority]. In other words, the section requires that for a proper or valid or lawful section 81 notice to issue it must have been one where the insurer had turned its mind to ' the claim ' made by the claimant in the relevant case (and not a claim made by someone else in some other vehicle accident).

31. In this circumstance, the section 81 notice was no notice at all and when the insurer did turn its mind to the correct claim, and a proper section 81 notice was issued, the latter notice is the only formal notice under the Act.

34. By the PCA failing to accept the insurer's evidence and explanation and by her reasons for decision ... the PCA misconstrued or misunderstood the proper scope of her powers under [the Act]. In doing so, she fell into error … Alternatively, she failed to perform her statutory task (constructive failure of jurisdiction)." 91 I note that paragraph 31 was contradicted by the oral submission made on behalf of the plaintiff. That submission was: "I'm not suggesting for a moment that section 81 notice [ie the second] is effective. What I'm suggesting to your Honour is that the first 81 notice is ineffective and therefore the deemed [by s 81(3)] denial can rise and can operate." (T p 7) 92 The argument cannot be sustained. I am prepared to accept, and I have no doubt, that the first s 81 notice was founded upon a mistaken apprehension by Mr Rajapakse about the circumstances of the accident. But that cannot affect the validity of the notice. 93 As has been noted more than once, s 81 makes no provision for the withdrawal of an admission of liability (by contrast with a denial of liability, which can, effectively, be withdrawn or superseded - see sub-s (4)). Except as provided by sub-s (4), the section makes no provision for a second, substitute or replacement certificate to be issued. A certificate admitting liability, once issued, is final for the purposes of the statutory scheme. 94 The PCA is given no express statutory power to go behind a certificate. Nor do I read into the legislation any implied power to do so. A certificate that on its face admits liability for the claim that it identifies is binding on the PCA. So much is, in my opinion, clear from ch 8.11.1 of the Guidelines, which, I repeat, is in the following relevant terms: "8.11 For the purpose of section 92(1)(a), the PCA shall issue a certificate of exemption when satisfied that … 1 the fault of the owner or driver of a motor vehicle … is denied by the insurer … in its written notice …" (bold added)

There is nothing to suggest that, where an insurer admits liability, a certificate under s 92(1)(a) must or even may be issued. 95 The balance of cl 8 of the Guidelines sets out, in my opinion exhaustively, the circumstances in which the PCA is obliged to issue a certificate of exemption. None is here applicable. 96 Nowhere in the Act or Guidelines is the PCA given any power to consider the circumstances in which an insurer issues an apparently binding and valid certificate, or to relieve the insurer of the effects of issuing, by mistake, a certificate admitting liability; nowhere is the PCA given any discretion to allow an insurer to depart from the terms of any admission. 97 It may be that the omission to include such a provision was the result of an oversight; having regard to the scheme of the Act, I would not draw that inference. 98 In Gabriel, the Court of Appeal held that an admission contained in a s 81 notice is not necessarily binding in subsequent court proceedings. The Court did not have before it the precise circumstances of this case. But Campbell JA did allude to (without answering) the question that has here arisen. In a passage cited by the PCA, and by the plaintiff in these proceedings, he said (at [167]):

"… Whether a section 81 admission, once made, can ever be departed from by an insurer in the course of the bureaucratic assessment procedure, and whether circumstances that show that a section 81 admission was made in error could be grounds for the Authority to issue a section 92 certificate (thereby permitting the insurer to dispute liability in court proceedings) are questions that do not arise in this appeal." 99 However, that passage was preceded by these observations: "The 'amended section 81 notice' served in the present case does not have any effect pursuant to the [Act], for the simple reason that the [Act] has no provision for any amended section 81 notice that retracts an admission of liability previously made in a section 81 notice … it is not open to an insurer to 'withdraw' a section 81 notice in the sense that it ceases to be an admission for the purposes of the law of evidence." 100 Similarly, the Act makes no provision for the PCA (or any other officer, or, indeed a court) to set aside an apparently regular s 81 notice on the grounds that it has been issued in error. 101 There is no error, jurisdictional or otherwise, of law in the first challenged decision. There is therefore no occasion to make any order quashing that decision - or any of the orders or declarations sought in the amended summons.

The second decision 102 The second challenged decision is that of Assessor Curtis made under s 92(1)(b). Section 92(1)(b) permits a certificate of exemption to be issued where a claims assessor has made a preliminary assessment of the claim, and has determined (with the approval of the PCA) that it is not suitable for assessment under Pt 4.4. This may occur even where liability has been wholly admitted. 103 Chapter 14 of the Guidelines makes provision with respect to the determination whether a claim is unsuitable for assessment. Clause 14.16 sets out (non-exhaustively) the circumstances to be taken into account. The first of these is whether the claim is exempt by reason of any of the circumstances set out in cl 8.11 - ie where the insurer denies liability. Others include the extent of conflict between the claim and the response by the insurer; the existence of complex legal or factual issues; the existence of complex issues of quantum or of assessment including, but not limited to, major or catastrophic, spinal or brain injury claims; the existence of other complex issues, for example of non-economic loss claims; the existence of complex issues of causation of injuries and disabilities; whether the claimant or a witness (considered to be material) resides outside NSW; whether the claimant or insurer seeks to proceed against one or more "non CTP" parties; and whether the insurer makes an allegation that a person has made a false or misleading statement in a material particular in relation to injury loss or damage. 104 The general tenor of ch 14 is that relatively straightforward claims are to be dealt with by the assessment process. Those involving levels of complexity (of a variety of kinds) ought to be dealt with judicially. A claims assessor (under the supervision of the PCA) is given the discretion to make a judgment about the suitability (or unsuitability) of a claim for assessment under the non-curial process. 105 After the PCA's decision with respect to s 92(1)(a), the claim was returned to Assessor Curtis for assessment. Again, the plaintiff vigorously sought exemption. 106 Assessor Curtis also gave detailed reasons. He, like the PCA, set out a short history of Mr Erturk's claim, making specific reference to the plaintiff's application to the PCA and its fate. He noted the written submissions provided by both parties, which he said he had carefully considered. 107 He also made express reference to cl 14.16 of the Guidelines, noting that he was not limited by the matters there listed. 108 I now set out paras 12, 13, 14, 15 and 16 of his reasons. Each is alleged, by the plaintiff, to bespeak error: "12. The arguments put forward by the Insurer here seem to me to amount to an appeal from the PCA's decision in the guise of a section 92(1)(b) Application and clearly I am not the appropriate 'forum' for such a process.

13. As it stands I have before me a relatively straightforward claim for damages with typical areas of dispute as to causation, need and quantum, the liability status of which is that of ' an admission of fault with no allegation of contributory negligence '.

14. As to Ground 2 'complex legal issue' I adopt the comment made by the PCA …:- ' The insurer argues that this claim is therefore not suitable for Assessment because it contains a complex legal issue. Of course should the claim be exempted under Section 92(1)(b) that issue will never face the courts. ' Gabriele ' is authority for the point that a Section 81 Notice has no added significance for the courts and what is relevant to the courts is the admission contained in the notice and such an admission can be/is simply an out of court admission which can be departed from in the insurer's defence to court proceedings … without leave of the court .'

15. The insurer's submissions that the question as to whether the insurer can be held ' to the mistake of admission in circumstances where the mistake has been clearly and forthrightly explained gives rise to some complex legal issues, which are appropriate for determination by the court ' brings with it the implication that it is permissible to ' look beyond or behind the Section 81 Notice to examine the merits or motives of the decision that is the subject of the notice ' which is not a matter I can be concerned with as the PCA has already determined that issue. Insofar as the [assessment process] is concerned the liability status of the claim is one of ' admission of fault with no allegation of contributory negligence '.

16 As to Ground 3 'legal entitlement to an exemption' it seems to me that the insurer's submissions again amount in effect to an 'appeal' from the PCA's decision and I am not the appropriate 'forum' in that regard." (bold and italics in original) 109 In written (and oral) submissions it was contended on behalf of the plaintiff that Assessor Curtis was wrong in holding that the plaintiff's application before him was in the nature of an appeal from the PCA's earlier determination; that he wrongly characterised the "liability status" of Mr Erturk's claim; and that he wrongly considered himself bound by the earlier determination of the PCA and therefore failed to consider the validity or effectiveness of the first s 81 notice and failed to look behind that notice, and that in this he failed to take into account relevant considerations. 110 Recourse to the written submissions put on behalf of the plaintiff to Assessor Curtis demonstrates that his characterisation of the plaintiff's application as a disguised appeal from the decision of the PCA was entirely justified. Repeatedly, throughout those submissions, reference was made to the exemption sought under s 92(1)(a) and to the plaintiff's belated attempt to deny liability. Repeatedly, throughout the written submissions, it was asserted that liability is denied, that negligence on the part of the insured driver is denied, and that the insured driver was not at fault. Assessor Curtis was correct to perceive this as an attempt to re-agitate the issues that had been agitated in the application to the PCA. It is of some significance that cl 8.11 requires the PCA to issue a certificate of exemption under s 92(1)(a) when satisfied that, at the time of consideration, the claim involves one or more of the specified circumstances. It does not, on my reading of it, permit a claims assessor to engage in the same process. 111 A proper reading of the submissions put to Assessor Curtis shows that, taken as a whole, they challenged the decision made by the PCA, and sought to have it reviewed by Assessor Curtis. 112 The plaintiff also put to Assessor Curtis that the claim involved complex legal issues. In paragraph 15, Assessor Curtis rejected that. In rejecting it, he was correct. The "complex legal issues" put to the assessor involved the claim on the part of the plaintiff that either the PCA or Assessor Curtis could excuse it from the consequences of its error in issuing the s 81 notice. It was not Mr Erturk's claim that involved complex legal issues; it was the plaintiff's attempt to escape the consequences of its error. 113 I have set out above a paraphrase of the matters which could warrant the issue of an exemption certificate under s 92(1)(b). These are all concerned with the nature of a claimant's claim. 114 In single-mindedly, even intransigently, focussing its attention upon the s 92(1)(a) application, the plaintiff failed to address any submissions to the issues relevant to s 92(1)(b) and cl 14.16. This may be because it correctly recognised that the claim was otherwise "relatively straightforward" and therefore not one which was not suitable for assessment other than as a contest on liability. Or it may be that it simply concentrated its attention on the wrong issue. In either case, it has not now demonstrated any error on the part of Assessor Curtis.

The third decision 115 The third decision is that of Assessor Curtis quantifying Mr Erturk's claim. As I have mentioned above, it is not suggested that there was any identifiable error in the approach taken by him to this decision. The challenge to that decision rested wholly upon the outcome of the challenges to the two earlier decisions. Those challenges having failed, the third must meet a similar fate. 116 The consequence is that the amended summons must be dismissed with costs. **********

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.