Cruse v Lifetime Care and Support Authority

Background 6Mr Cruse's claims for relief arise in the following context. 7Mr Cruse was seriously injured while holidaying in Australia on 3 February 2008. On that day he was involved in a motor vehicle accident as the result of which both of his legs were amputated below the knee. Mr Cruse filed a motor accident personal injury claim form on 18 February 2008 with NRMA while still in hospital recovering from his injuries. NRMA was the relevant third party insurer. A week later he made an application to the Authority to join the Scheme under the Motor Accidents (Lifetime Care and Support) Act 2006. Mr Cruse was accepted on 26 February 2008 as an interim participant in the Scheme. Before the expiration of his two-year period as an interim participant, Mr Cruse made an application for lifetime participation in the Scheme and on 24 February 2010 he was accepted as a lifetime participant. 8Following receipt of legal advice, Mr Cruse sought to leave the Scheme. He filed an application on 10 August 2010 seeking a statutory assessment of the decision to accept him as a lifetime participant in the Scheme, intending that he be found ineligible under the 2007 Guidelines that were in effect at that time. The application was based on the proposition that his bilateral amputations did not make him eligible under the 2007 Scheme Guidelines. On 22 December 2010, the assessment panel advised that Mr Cruse's injuries satisfied the criteria for eligibility. Accordingly, on 30 March 2011 Mr Cruse sought a review of the Assessment Panel's decision. On 1 July 2011 a Review Panel rejected Mr Cruse's application for review and found that his injuries satisfied the criteria for eligibility under the Scheme. 9Mr Cruse thereafter commenced proceedings for judicial review of the Review Panel's determination in this Court, asserting that the Review Panel misapplied the eligibility criteria under the 2007 Guidelines. Those proceedings came before Schmidt J on 27 April 2012. On 17 May 2012 her Honour set aside that decision of the Review Panel on the basis that the Scheme Guidelines had not been properly applied: Cruse v Review Panel Established under the Motor Vehicle (Lifetime Care & Support) Act 2006 [2012] NSWSC 507. The matter was remitted to the Review Panel for decision according to law. 10On 25 May 2012 the Authority published the 2012 Scheme Guidelines. A differently constituted Review Panel convened following her Honour's decision and reconsidered Mr Cruse's eligibility for participation in the Scheme. It determined on 26 July 2012 that Mr Cruse did not satisfy the criteria and was not eligible for participation in the Scheme. The Review Panel reached that conclusion applying the 2007 Scheme Guidelines. 11On 15 August 2012 NRMA submitted a fresh application to the Authority applying for Mr Cruse to be accepted into the Scheme as a lifetime participant under the new 2012 Guidelines. On 27 August 2012 Mr Cruse's solicitors wrote to the Authority requesting that the application be rejected. However, on 26 November 2012 the Authority determined that Mr Cruse was eligible to participate in the Scheme under the 2012 Guidelines and wrote advising that he had been accepted into the Scheme as a lifetime participant. 12On 21 February 2013 the Authority published its reasons for the decision to accept Mr Cruse into the Scheme as a lifetime participant. It indicated that as the Review Panel had determined not to accept Mr Cruse into the Scheme as a lifetime participant, "it was open to the Authority to consider and determine the second application for lifetime participation made by [NRMA] on 15 August 2012". It indicated further that it considered the 15 August 2012 application was a "new application" and made its decision on eligibility applying the 2012 Scheme Guidelines. It also stated it considered that applications for lifetime participation in the Scheme could be made "without limitation". It is that decision of which Mr Cruse now seeks judicial review in these proceedings.

The Motor Accidents (Lifetime Care and Support) Act 2006 13The Act provides for the establishment of a Scheme for the lifetime care and support of persons injured in motor vehicle accidents. It represents a major departure for those who are catastrophically injured in motor vehicle accidents to which the Motor Accidents Compensation Act 1999 applies. The Act establishes the Lifetime Care and Support Authority and a fund to support it. The Act makes provision for payment by the Scheme of the assessed treatment and care needs of those who are accepted into it. 14A person who has suffered a motor accident injury is "eligible to be a participant in the Scheme" if the person's injury satisfies the criteria specified in the applicable Guidelines for eligibility. A person can be a participant in the Scheme either as a lifetime participant or as an interim participant. An application for participation in the Scheme must be made to the Authority and can be made either by the person or by the person's insurer. The consent of the person is not needed where the insurer is the applicant. 15Sections 7, 8 and 9 of the Act are relevantly as follows: "7 Eligibility for participation in the Scheme (1) A person who has suffered a motor accident injury is eligible to be a participant in the Scheme in respect of the injury if the person's injury satisfies the criteria specified in the LTCS Guidelines for eligibility for participation in the Scheme. (2) Participation in the Scheme may be as a lifetime participant or an interim participant and for that purpose the LTCS Guidelines are to establish criteria for eligibility for lifetime participation and criteria for eligibility for interim participation in the Scheme. (3) A person is not eligible to be a participant in the Scheme in relation to an injury if the person has been awarded damages, pursuant to a final judgment entered by a court or a binding settlement, for future economic loss in respect of the treatment and care needs of the participant that relate to the injury. (4) The LTCS Guidelines may make provision for or with respect to eligibility for participation in the Scheme, including provision for or with respect to the criteria that a motor accident injury must satisfy for the injured person to be eligible for participation in the Scheme in respect of the injury and the determination of whether a motor accident injury satisfies those criteria. 8 Application for participation in the Scheme (1) An application for a person to become a participant in the Scheme in respect of a motor accident injury is to be made to the Authority and can only be made by or on behalf of the person or by the insurer of a claim made by the person in respect of the injury. (2) An application by an insurer does not require the consent of the person. (3) The MAA may direct the insurer of a claim made by a person in respect of an injury to make an application for the person to become a participant in the Scheme, and the insurer must comply with such a direction. (4) An application is to be made in the form approved by the Authority and is to set out or be accompanied by such particulars and information as may be required by the approved form. (5) The Authority may require the injured person to provide authorisation for the Authority to obtain information and documents relevant to the motor accident injury from specified persons in connection with the application. (6) The LTCS Guidelines may make provision for or with respect to applications to become a participant in the Scheme, including provision for or with respect to: (a) the making and determination of applications (including the information required to be provided in connection with an application), and (b) requiring an insurer to pay the costs of any assessment required by the LTCS Guidelines in connection with an application, and (c) imposing restrictions on the time within which an application can be made or requiring the deferring of the making of an application until an injury has stabilised. 9 Acceptance as a participant (1) A person becomes a participant in the Scheme if the Authority is satisfied that the person is eligible to be a participant and accepts the person in writing as a participant in the Scheme, either as a lifetime participant or an interim participant (according to the person's eligibility). (2) If the Authority is satisfied that a person is eligible to be a participant and that application for the person's acceptance as a participant has been duly made, the Authority must accept the person as a lifetime participant or an interim participant (according to the person's eligibility). (3) A person accepted as an interim participant must be accepted as a lifetime participant if the Authority becomes satisfied during the person's interim participation in the Scheme that the person is eligible for lifetime participation in the Scheme. (4) A person accepted as a lifetime participant in the Scheme remains a participant for life. (5) A person 3 years of age or over who is accepted as an interim participant remains an interim participant for a period of 2 years only. (5A) A person under 3 years of age who is accepted as an interim participant remains an interim participant until the person is 5 years of age. (5B) If a person who is an interim participant is accepted as a lifetime participant, the person ceases to be an interim participant on that acceptance and then remains a participant for life. (6) A person cannot be accepted as an interim participant more than once in relation to the same motor accident injury. (7) The expiration of a period of interim participation in the Scheme does not prevent subsequent acceptance of the person as a lifetime participant in the Scheme." 16Mr Cruse made some particular submissions (referred to below) based upon the operation and effect of s 16 of the Act. That section is as follows: "16 Determinations to be binding The determination of an Assessment Panel (or of a Review Panel on the review of an Assessment Panel's determination) as to whether a motor accident injury satisfies criteria specified in the LTCS Guidelines for eligibility for participation in the Scheme is final and binding for the purposes of this Act and any proceedings under this Act."

The 2007 Lifetime Care and Support Guidelines 17The Lifetime Care and Support Guidelines are issued in accordance with s 58 of the Act. The relevant section of the 2007 Guidelines is in the following terms: "Criteria for multiple amputations The injury resulting in the amputations, or the equivalent impairment, was caused by the motor accident; and There are multiple amputations of the upper and/or lower extremities at or above the fingers (metacarpophalangeal joints) and/or adjacent to or above the knee (transtibial or transfemoral) or the equivalent impairment; and One of the following criteria is met: If over 8 years of age at the time of assessment, a score of 5 or less on any of the items on the Functional Independence Measure (FIM or WeeFIM) due to the amputations; or If aged from 3 to 8 years at the time of assessment, a score two less than the age norm on any item on the WeeFIM due to the amputations; or If aged under 3 years at the time of assessment, a medical certificate from a paediatric rehabilitation physician that states the child will probably have permanent impairment due to the amputations resulting in the need for daily attendant care services."

The 2012 Lifetime Care and Support Guidelines 18Part 1 of the 2012 Guidelines sets out the requirements for eligibility for participation in the Scheme. Clause 1 states the basic requirements for an application including the nature of the accident, its location, that it caused the injury and that certain criteria are satisfied. Clause 2 sets out the "injury criteria" that apply to both interim and lifetime participants. Amputations are set out in clause 2.3 as follows: "2.3 Amputations A person who as a result of the motor accident has had amputations as described below, or the equivalent impairment, is eligible to enter the Scheme if the following criteria are met. Criteria for amputations The injury resulting in the amputations, or the equivalent impairment, was caused by the motor accident; and There are multiple amputations of the upper and/or lower extremities, meaning that there is more than one of the following types of amputation at or above the level of: a 'short' transtibial or standard transtibial amputation, as defined by the loss of 50% or more of the length of the tibia. This includes all other amputations of the lower extremity (such as knee disarticulation or transfemoral amputation) above this level; a thumb and index finger of the same hand, at or above the first metacarpophalangeal joint. This includes all other amputations of the upper extremity (such as below-elbow or above elbow amputation) above this level." 19The requirements for Functional Independence Measure ("FIM") assessment are set out in clause 3. Clause 4 allows the Authority to defer an application until an injury has stabilised. Clause 5 requires that an application must be in the form of an "initial Application form", completed and signed and accompanied by required information. Clause 6 provides that the Authority will acknowledge all applications and make its determination as soon as possible having considered the information supplied, any additional information and the eligibility criteria in the Guidelines. 20Clause 7 of the 2012 Guidelines is in the following terms: "7 Interim and lifetime participation Once eligibility for the Scheme has been established, all participants will be accepted as interim participants for 2 years. This is because of the possibility of recovery and ongoing improvement in the injured person's condition, such that the injured person may not meet the eligibility criteria after the two year period. The period of interim participation in the Scheme commences from the date of the Authority's determination. The decision about whether an interim participant is a lifetime participant in the Scheme is made before the end of the interim participation period. ... Application for lifetime participation A new Application Form, including the medical certificate, must be submitted to the Authority for lifetime participation in the Scheme. Before the Application Form for lifetime participation is completed, the Authority will notify the injured person and any other interested party if any additional information is required. The medical certificate in particular the FIM or WeeFIM scores, must be completed within two months of the date of the completed application for lifetime participation."

Construction of the Act and the Guidelines 21Mr Cruse and NRMA each made submissions concerning the manner in which both the Act and the Guidelines ought to be construed in advance of determining whether or not the errors for which Mr Cruse contended could be made out. 22Mr Cruse submitted that the modern approach to statutory interpretation emphasises that context is not only relevant to the interpretation of legislation but must be considered in the first instance: Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355 at 381; K & S Lake City Freighters Pty Ltd v Gordon & Gotch Ltd [1985] HCA 48; (1985) 157 CLR 309 at 312; CIC Insurance Ltd v Bankstown Football Club Ltd [1997] HCA 2; (1997) 187 CLR 384 at 408. In Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue [2009] HCA 41; (2009) 239 CLR 27, French CJ held at [4] that "the ordinary and grammatical sense of the statutory words [is] to be interpreted having regard to their context and legislative purpose". 23Mr Cruse contended that care was needed in construing the provisions of the Act. It should not be presumed that the Scheme is beneficial to those who are interim or lifetime participants. The cognate Motor Accident Compensation Act limits the recovery of economic and non-economic loss. The Motor Accidents (Lifetime Care and Support) Act further limits the recovery of economic loss for those participating in its Scheme, particularly for treatment and care expenses. Mr Cruse contended that the correct approach to interpretation of ss 7 to 9 of the Act is as stated by the High Court in Berowra Holdings Pty Ltd v Gordon [2006] HCA 32; (2006) 225 CLR 364 at [23]. This is referred to below. 24The status of the Guidelines is also relevant. In Allianz Australia Ltd v Crazzi [2006] NSWSC 1090; (2006) 68 NSWLR 266 at [17], Johnson J considered the relevant principles that govern subordinate legislation such as Claims Assessment Guidelines under the Motor Accident Compensation Act. According to Mr Cruse, the Guidelines must be construed in the same manner because both s 58(5) of the Motor Accidents (Lifetime Care and Support) Act and s 69(6) of the Motor Accidents Compensation Act are in identical terms. The relevant principles are:

1. The Guidelines may be treated as delegated legislation: NRMA Insurance Ltd v Motor Accidents Authority [2004] NSWSC 567; (2004) 61 NSWLR 264 at [10]-[14], [26]-[28].
2. The general principles applicable to the interpretation of Acts of Parliament are equally applicable to the interpretation of delegated legislation: Collector of Customs v Agfa-Gevaert Ltd [1996] HCA 36; (1996) 186 CLR 389 at 398.
3. It is appropriate to look beyond the Act to the Guidelines to ascertain the overall statutory Scheme: Coleman v Gray (1994) 55 FCR 412 at 423. 25In Mr Cruse's submission, by misapplying s 9 of the Act or the 2012 Guidelines, the Authority fell into jurisdictional error in the sense that it identified the wrong issue, asked the wrong question, made an erroneous finding or reached a mistaken conclusion: Craig v South Australia [1995] HCA 58; (1995) 184 CLR 163 at 179. Where a decision maker makes such an error of law, it results in the decision maker exceeding the authority provided by the statute and thereby exceeding his or her jurisdiction: Minister for Immigration & Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323 at [82]. 26Notwithstanding Mr Cruse's reference to the importance of context in statutory interpretation, NRMA complains that he has not referred to any specific contextual material to make good his submission or to assist with an understanding of the legislative intent underlying the introduction of the Scheme or the corresponding restrictions on damages available to participants under the Motor Accidents Compensation Act. Once an intention of Parliament to restrict access to common law damages is identified, the words of the Act and the Guidelines must be read with that purpose in mind. 27NRMA emphasised that any presumption that common law rights cannot be removed by legislation in the absence of very explicit language in the legislation itself must be approached with caution. In Gifford v Strang Patrick Stevedoring Pty Ltd [2003] HCA 33; (2003) 214 CLR 269 at [36], McHugh J said this: "[36] There is a presumption - admittedly weak these days - that a statute is not intended to alter or abolish common law rights unless the statute evinces a clear intention to do so. In Malika Holdings Pty Ltd v Stretton, however, I warned of the need for caution in applying this presumption: nowadays legislatures regularly enact laws that infringe the common law rights of individuals. The presumption of non-interference is strong when the right is a fundamental right of our legal system; it is weak when the right is merely one to take or not take a particular course of action. Courts should not cut down the natural and ordinary meaning of legislation evincing an intention to interfere with these lesser rights by relying on a presumption that the legislature did not intend to interfere with them. Given the frequency with which legislatures now abolish or amend 'ordinary' common law rights, the 'presumption' of non-interference with those rights is inconsistent with modern experience and borders on fiction. If the presumption still exists in such cases, its effect must be so negligible that it can only have weight when all other factors are evenly balanced." 28The Second Reading Speech delivered by the Minister in the Legislative Assembly on 9 March 2006 is also instructive. It included the following: "A person will not be eligible to participate in the Scheme if the person has been awarded common law damages for his or her treatment and care needs. Acceptance into the Scheme as a lifetime participant will prevent a person from recovering common law damages for treatment and care needs. The Scheme will provide for all the reasonable treatment and care expenses of participants. ... The Bill clarifies that for a participant in the Scheme, the CTP insurer dealing with the claim is no longer required to meet any of the person's treatment and care expenses, as those expenses are now required to be met solely by the Lifetime Care and Support Scheme. The Motor Accidents Compensation Act is also amended to exclude a lifetime participant in the Scheme Form recovering economic loss damages for any treatment and care needs. The current lump sum compensation arrangements for meeting these needs will be replaced by the provision of lifetime treatment, care and support provided by the Lifetime Care and Support Scheme." 29In Thiering v Daly [2011] NSWSC 1345, Garling J summarised the legislative purpose in introducing the Scheme at [85] as follows: "[85] It seems tolerably clear that it was the intention of the Government to introduce legislation which would establish a scheme with these features: (a) It would cover those who, as a consequence of a motor vehicle accident, were catastrophically and permanently injured; (b) The injuries were such that the individuals would require treatment and care for the whole of their lives; (c) The LCS Scheme would provide for all of that treatment and care, including attendant care, for as long as it was necessary on an individually assessed basis; (d) Because the LCS Scheme would attend to the provision of lifetime treatment and care, an injured person would not need, and would not be entitled to, compensation by way of damages for any treatment and care needs including attendant care; (e) The only limitation on the provision of treatment and care was that it was reasonable in the circumstances, and that the injury was caused in a motor vehicle accident." 30NRMA contended that it is plain that the introduction of the Scheme required compulsory third party insurers to reduce their premiums and to collect a separate levy on behalf of the Authority in order fully to fund the Scheme. In return, the liability of insurers to pay damages for the treatment and care needs of participants in the Scheme was removed where those treatment and care needs are covered by the Scheme. NRMA contended that the clear legislative intent was to restrict the entitlement of participants in the Scheme to damages to which they might previously have been entitled under the Motor Accidents Compensation Act. 31Notwithstanding that intent, the Scheme is otherwise plainly intended to be beneficial to participants. Participation in the Scheme is not optional, and insurers have been required since 2007 to set their premiums on the basis that persons who suffer catastrophic injuries satisfying eligibility criteria for participation in the Scheme will participate in it. Participation in the Scheme removes uncertainty as to the funding of future care and treatment needs. Participants are accordingly not required to ensure that their damages are adequate or sufficient for their lifetime. Speculation about life expectancy in assessing damages to cover future needs is avoided.

Discussion 32As interesting as the competing contentions in this debate appear to be, they do not seem to me to be particularly relevant. Necessarily underpinning Mr Cruse's approach to this preliminary debate is the proposition that the pertinent provisions of the Motor Accidents (Lifetime Care and Support) Act are either intended to alter fundamental common law rights or are otherwise sufficiently unclear or ambiguous so as to require resort to certain principles governing the way in which an Act of Parliament can or should be construed. However, the prevailing assumptions upon which that claim is based appears to me to be absent. 33As referred to by McHugh J in Gifford, legislatures nowadays regularly enact provisions that interfere with or infringe the common law rights of individuals. The instances of this at all levels are too numerous to mention. The Limitation Act 1969 might be thought to be an instructive and obvious example. The Motor Accidents (Lifetime Care and Support) Act might be another. There does not appear to me to be any good or obvious reason to cut down the natural and ordinary meaning of the provisions of that Act, to the extent that it evinces an intention to interfere with rights, not being fundamental rights of our legal system, by relying on a presumption that the legislature did not intend to interfere with them. I do not perceive Mr Cruse to contend that the arrangement or subsequent rearrangement of the ways in which, or the extent to which, catastrophically injured persons can claim or be given compensation for lifetime care and support, amounts to an interference of the order contemplated by McHugh J. 34More fundamentally, however, is the assumption that the Act has the effect upon rights for which Mr Cruse contends. His submission appears to me to overlook at least one significant and fundamental aspect of the legislation. Section 4(4) of the Act provides as follows: "(4) This Act applies in respect of a motor accident injury whether or not the injury was caused by the fault of the owner or driver of the motor vehicle in the use or operation of the vehicle or of any other person and so applies even if the injured person was at fault (whether as owner or driver of the vehicle or otherwise)." 35It is unnecessary for present purposes to embark upon a philosophical comparison between the extent to which the Act expands the scope of compensable injuries on the one hand with the extent to which it modifies or constrains the extent of benefits to those injured persons to whom its provisions ultimately apply. There is a fair case to be made for the proposition that these matters are evenly weighted, particularly in light of the no-fault operation of the Scheme. At all events it cannot be assumed without question that the Act attenuates pre-existing common law rights of injured persons in a way that informs how the provisions of the Act should be construed or applied. It is also unnecessary in my opinion to call upon extraneous aids to statutory construction or interpretation having regard to the matters that are considered later in these reasons.

Mr Cruse's submissions 36Mr Cruse contended that in the circumstances outlined above, the Authority could be shown to have made three errors. First, the Authority permitted the making of a second application for participation in the Scheme in a way that Mr Cruse contended was contrary to s 9(6) of the Act. Secondly, the Authority failed properly to apply clause 7 of the 2012 Guidelines and thereby failed to treat NRMA's application dated 15 August 2012 as an application for interim participation and reject it. Thirdly, the Authority wrongly applied the 2012 Guidelines when it should have applied the 2007 Guidelines. These alleged errors are considered in turn. It is not in issue that Mr Cruse is not eligible to participate in the Scheme under the 2007 Guidelines but that he is eligible to participate under the 2012 Guidelines.

The first error 37Section 9(6) of the Act deals with multiple applications. A person cannot be accepted as an interim participant more than once in relation to the same motor accident injury. In its reasons for decision dated 26 November 2012 the Authority indicated that it considered that applications for lifetime participation in the Scheme could be made "without limitation". Mr Cruse contends that the Act does not permit an application of any sort to be made after a person has been found to be ineligible and the Authority has rejected the application for lifetime participation. 38If a person is eligible and application has been duly made, the Authority is required to accept the person for participation according to whether he or she is eligible for interim or lifetime participation: s 9(2). This is done, after eligibility is determined, by accepting the applicant as an "interim participant": clause 7 of the 2012 Guidelines. The person remains an interim participant for two years only: s 9(5). The person must be accepted as a lifetime participant if the Authority becomes satisfied during the person's interim participation that the person is eligible for lifetime participation: s 9(3). Once the person is accepted as a lifetime participant, he or she ceases to be an interim participant: s 9(5B). Section 9(5B) can obviously only apply during the two year period as the person's status as an interim participant will otherwise cease at the end of two years: s 9(5). 39Mr Cruse maintained that in that context s 9(6) stopped a person who has ceased to be an interim participant by effluxion of time or who has during the two years become a lifetime participant from applying again for interim participation. This indicates that, in the normal course, and subject to s 9(7), a person will be accepted for lifetime participation or rejected within two years. Section 9(6) prevents the person from triggering the process again. 40Section 9(7) avoids an unduly harsh application of the two-year deadline by allowing for an application for lifetime participation to be accepted outside the two-year period, even though the person has ceased to be an interim participant. It also assumes that the person has been accepted previously for interim participation. There is nothing in s 9(7) that indicates that an application may be accepted after the person has been found to be ineligible for lifetime participation. According to Mr Cruse's submissions, there is every indication that the process is a limited linear one (interim participation followed by lifetime participation) expiring once a decision has been made not to accept an application for lifetime participation. In the absence of an express indication that multiple applications for participation may be made, the rule in Berowra Holdings Pty Ltd v Gordon at [23], requiring a "very clear legislative intent before treating a statutory provision as taking away common law rights... where there is an alternative construction available", means that s 9 should be interpreted so as not to allow the making of any further applications after a person has been determined to be ineligible for lifetime participation. 41Section 9(6) then prevents the process from beginning again and the Authority is in effect functus officio. Clause 7 of the Guidelines is said to reflect this linear approach by requiring all participants to be treated as "interim participants" and requiring that applications for lifetime participation require a "new Application" form, which presumes a previous application. Allowing further applications to be made for a person to be brought within the Scheme is contrary to both the two-year time limit for interim participation as well as the object of achieving finality for the injured person. 42According to this submission, when the Authority considered the 15 August 2012 application, it erred by agreeing to accept it. A proper application of s 9 should have prevented it from again considering Mr Cruse for participation because he had been found ineligible on 26 July 2012. In that way, the Authority exceeded its jurisdiction and fell into jurisdictional error.

NRMA's response 43The Authority provided reasons for the decision under review on 21 February 2013. The relevant paragraphs are as follows: "Reasons for decision 10 There is nothing in the Act or the 2007 or 2012 Guidelines which prevents additional applications being made for interim or lifetime participation in the Scheme. 11 Mr Cruse was accepted as an interim participant in the Scheme on February 2008. That decision has not been subject to judicial review. Section 9(6) of the Act prevents a person being accepted as an interim participant in the Scheme more than once and clause 7 of the 2007 and 2012 Guidelines provides that when a person is accepted into the Scheme, it is an interim participant for 2 years. In relation to Mr Cruse, as the Authority accepted his application for interim participation in the Scheme in February 2008, it cannot accept any further applications for interim participation. 12 Applications for Mr Cruse's lifetime participation in the Scheme can be made without limitation but the Authority can only accept Mr Cruse as a lifetime participant in the Scheme once (section 9(4) of the Act). Once he is accepted as a lifetime participant, he remains so for life. 13 Although the Authority's Review Panel accepted Mr Cruse as a lifetime participant of the Scheme on 24 July 2010, Justice Schmidt set aside that decision. A further decision in relation to lifetime participation can therefore be made, as was done on 26 July 2012. However, that decision was not to accept Mr Cruse as a lifetime participant of the Scheme. For this reason it was open to the Authority to consider and determine the second application for lifetime participation made by the Insurer on 15 August 2012. 14 Section 9(7) of the Act provides that the expiration of a period of interim participation in the Scheme does not prevent subsequent acceptance of the person as a lifetime participant in the Scheme. 15 The 2012 Guidelines apply 'to all new applications for participation in the Lifetime Care and Support Scheme received on or after 25 May 2012 ...'. At the time the Insurer made the second application in respect of Mr Cruse on 15 August 2012, Mr Cruse was not a participant of the scheme. The Authority considered the second application on the basis that it was a 'new application' and made its decision to accept the application based on the 2012 Guidelines." 44NRMA submitted that there was no error contained in these reasons. There is nothing in s 9 of the Act or clause 7 of the Guidelines, or anywhere else, that precludes or prohibits more than one application being made by a person for lifetime participation in the Scheme. It is obvious that a person may only be accepted once as a lifetime participant, because s 9(4) mandates that the person remains a participant in the Scheme for life. 45The Authority purported to accept Mr Cruse as a lifetime participant in the Scheme in 2010, but that "acceptance" was nullified by Schmidt J's decision and the subsequent determination by the reconstituted Review Panel. As the Authority's reasons at [12] indicate, s 9(4) only applies to a person accepted as a lifetime participant in the Scheme. If the 26 July 2012 determination by the re-constituted Review Panel, that Mr Cruse is not eligible for participation in the Scheme under the 2007 Guidelines, is valid, there was no prior acceptance of Mr Cruse as a lifetime participant when the decision under review was made. 46NRMA contended that Mr Cruse's assertion, that the Act precluded an application of any sort to be made after a person had been found to be ineligible, was wholly unfounded. Moreover, it would be unjust if it were so. For example, an application based upon a particular condition that failed to meet the eligibility criteria would not, and should not, preclude a later application if medical complications altered that condition so that it subsequently met the participation criteria. 47Mr Cruse's Berowra Holdings submission is of no assistance in the absence of contextual material to support it. 48NRMA rejected Mr Cruse's submission that the Act and the Guidelines prescribed some form of "linear" approach to interim and lifetime participation in the Scheme. The submission is entirely at odds with s 9(7). The Authority is not functus officio in any sense unless or until a person is validly accepted as a lifetime participant in the Scheme: s 9(4).

Disposition 49I am unable to accept Mr Cruse's submissions. In my opinion s 9(6) is clear. There is nothing in s 9 of the Act or clause 7 of the Guidelines, or anywhere else, which precludes or prohibits more than one application being made by a person for lifetime participation in the Scheme. If the expiration of a period of interim participation in the Scheme does not prevent subsequent acceptance of the person as a lifetime participant in the Scheme, it must follow that it cannot prevent subsequent applications by the person made for the purpose of achieving that result.

The second error 50Mr Cruse contends that the Authority failed to apply clause 7 of its own Guidelines. NRMA lodged an application on 15 August 2012 that the Authority treated as an application for lifetime participation and not as an application for interim participation. Clause 7 specifically requires that "all participants will be accepted as interim participants for 2 years". Section 9(6) prohibits the acceptance of a second application for interim participation and, accordingly, the Authority should have rejected NRMA's application. 51Clause 7 is headed "Interim and lifetime participation" and so applies to both types of participation. The first line of the provision cannot be read other than that applicants for both interim and lifetime participation will be accepted as interim participants for a period of two years. That accords with s 8(1) and s 9(2), which do not differentiate between types of participation. It is then up to the Authority to determine whether, according to the person's eligibility, the person is accepted as an interim or lifetime participant. 52The 2012 Guidelines do not generally differentiate between interim and lifetime participation. Clauses 1 to 6 do not differentiate at all between the two classes of participant. For example, the injury criteria apply to applications for both interim and lifetime participation in identical terms. The second part of clause 7 is the first indication of differentiation. 53The construction of the 2012 Guidelines constrains the way in which an application for lifetime participation is to be treated. Notwithstanding that an application has been made for lifetime participation, the applicant must, in accordance with clause 7, be treated as an interim participant for a period of two years. Before the expiration of that period a person who wishes to become a lifetime participant, or the person's insurer, applies for that status having already been an interim participant. Accordingly, the words "A new application form" in the second part of clause 7 indicate that the application form is additional to the initial application dealt with at the commencement of the clause but relates to the same person. The words do not allow for wholly new applications that have not been accepted as interim participants and have not enjoyed that status for the required two years or some part of it. 54Clause 7 says nothing about the ability to make additional applications for either type of participation. It must be read with s 9(6), which prohibits the acceptance of a person "as an interim participant" more than once for the same motor accident injury. A straightforward application of clause 7 requires that NRMA's 15 August 2012 application be treated so that it had the effect of Mr Cruse being "accepted as an interim participant". Section 9(6) prevents the acceptance of a second application for interim participation. As Mr Cruse had been accepted on 26 February 2008, NRMA's 2012 application should have been rejected. 55Mr Cruse also emphasised the following matters. Section 9(6) applies to a person who is currently an interim or lifetime participant, to a person who has been accepted as an interim participant but who has been rejected as a lifetime participant, and to a person who has been accepted as an interim participant but whose status as such has expired after two years by operation of s 9(5). Section 9(6) works to limit a person being accepted multiple times as an interim participant irrespective of whether they are eligible. In that way it may be characterised as a limitation clause that for policy reasons limits the number of people who may become interim participants. 56Mr Cruse contended that there were two ways that s 9(6) could be read. Either it applies only to acceptance as an interim participant or it applies to interim participation as a status that precedes lifetime participation. The first interpretation makes little sense because each status is identical apart from the period of its operation. If a person has been rejected for lifetime participation because of an apparent improvement in his or her condition, why would the Authority only be able to accept the applicant for lifetime participation on subsequent application when interim participation would allow flexible reconsideration of the person's eligibility within a further two year period? If the making of further applications were to be limited, it would make more sense to prohibit all additional applications (of whatever kind). That is the construction for which Mr Cruse contends. Such an interpretation accords with the Scheme that is apparent from reading s 9 of the Act and clause 7 of the Guidelines. As all applications are to be accepted as interim participants, that aligns with an interpretation of s 9(6) that prevents acceptance of all additional applications of any kind. 57Mr Cruse contended that the acceptance of the15 August 2012 application disclosed an error of law because of a failure to apply clause 7 of the Guidelines and s 9(6) of the Act so that it should be set aside.

NRMA's response 58It is Mr Cruse's submission that the Authority erred in treating NRMA's 15 August 2012 application as one for lifetime participation in the Scheme, rather than as an application for interim participation. He contends that the Authority had to treat NRMA's application as an application for interim participation, which was then precluded by s 9(6) because a person cannot be accepted as an interim participant more then once. In contrast, NRMA contends that its application was an application for lifetime participation, which the Authority accepted as such. No application for interim participation was made, considered or accepted. 59Nor according to NRMA can Mr Cruse's submission, that on a proper construction of clause 7 of the Guidelines its 15 August 2012 application had to be treated as an application for interim participation, regardless of its form, be accepted. Such a construction is erroneous for a number of reasons. First, it is inconsistent with s 9(1), s 9(2) and s 9(7) of the Act. Secondly, clause 7 of the 2012 Guidelines does not state that an application made after the period of interim participation has been "served" must be treated as a further application for interim participation. Such a construction makes no sense having regard to s 9(6). Thirdly, the submission misunderstands the "mandatory" period of interim participation in the Scheme for which clause 7 clearly provides. 60Sections 9(1) and 9(2) of the Act clearly empower the Authority to accept an injured person either "as a lifetime participant or an interim participant (according to the person's eligibility)". Section 9(7) empowers the Authority to accept a person as a lifetime participant at any time after the expiration of his or her interim participation. Clause 7 clearly states the reason for that. The two-year period is directly related to the possibility of recovery during a period of interim participation. 61Contrary to Mr Cruse's submissions, the Act and the Guidelines clearly distinguish between interim and lifetime participants. Clause 7 explains why the period of interim participation is imposed. Section 9 itself carefully distinguishes between interim and lifetime participation in every subsection. 62Once the two-year period of interim participation has been "served" by a particular participant, the underlying purpose of interim participation will have been exhausted. No further period of interim participation is called for if a "new" application for lifetime participation is made. Mr Cruse's submissions, if accepted, would lead to the result that an injured person would be treated as an interim participant contrary to s 9(6). By reason of s 9(7), nothing turns on the fact that NRMA's application for Mr Cruse to become a lifetime participant in the Scheme was made well after the expiration of his period of interim participation. Section 9(7) is a complete answer to Mr Cruse's submissions concerning the effect of s 9(6). 63According to NRMA, the Authority was correct in treating its 15 August 2012 application as a "new" application for lifetime participation in the Scheme. As such, the application had to be considered under the eligibility criteria in the 2012 Guidelines.

Disposition 64Mr Cruse argues that, if the making of further applications were to be limited it would have made more sense to prohibit all applications of any kind. I do not understand that submission. In the present case, NRMA's 15 August 2012 application was an application for lifetime participation in the Scheme. No such application is prohibited and the Authority was entitled to accept it. I am unable to see how a reading of s 9(6) and s 9(7) produces the result for which Mr Cruse contends. The words of the section are clear. NRMA was entitled to make, and the Authority was entitled to treat, its 15 August 2012 application as a "new" application for lifetime participation in the Scheme.

The third error 65This error only arises for consideration if Mr Cruse is unsuccessful in his contentions concerning the first two errors. 66The Authority erred in law when it applied the 2012 Guidelines instead of the 2007 Guidelines to NRMA's 15 August 2012 application. Mr Cruse had been found ineligible on 26 July 2012 under the earlier Guidelines but eligible on 26 November 2012 under the later Guidelines. 67The 2012 Guidelines contain the following note: "Note: This version of Part 1 of the Lifetime Care and Support Guidelines applies to all new applications for participation in the Lifetime Care and Support Scheme received on or after the date of gazettal in the NSW Government Gazette, and applies to all participants in the Scheme on or after that date." 68The 2012 Guidelines were gazetted on 25 May 2012. They replaced the 2007 Guidelines gazetted on 28 September 2007. The term "new application" is not defined anywhere. Mr Cruse contended that it could not mean all applications received on or after the gazettal date or even any application received after the gazettal date because the word "new" would otherwise be redundant. 69Irrespective of the determination of this issue, Mr Cruse submitted that the 2012 Guidelines do not apply to a person who is not a participant but who has a pending application as at the gazettal date. The 2007 Guidelines apply to such a person even after 25 May 2012. It is therefore reasonable for "new applications" to be construed as applying to a person who has not made any previous application or in respect of whom an insurer has not done so. 70Such an interpretation would make sense where there has been a material change to the Guidelines. An "old application" would be dealt with under the Guidelines that applied at the time the original application was made. In the present case, an application with respect to Mr Cruse, who had applied under the 2007 Guidelines, must be considered under those Guidelines, even though the application may have been made later than 25 May 2012. Such an approach has merit because persons who were interim participants as at that date would not be put in jeopardy of losing that status after that date. Equally, persons who were not eligible to be participants as at that date are not brought within the Scheme after that date. If the Authority had wished to apply the 2012 Guidelines to all applications made after that date then it could have drafted Guidelines to achieve that outcome. 71The second part of the note applies the 2012 Guidelines "to all participants in the Scheme on or after that date". As Mr Cruse had been found to be ineligible under the 2007 Guidelines, he was not a participant in the Scheme as at the gazettal date of the 2012 Guidelines. 72On this analysis, the Authority applied the wrong Guidelines on 26 November 2012 and thereby fell into error.

NRMA's response 73Mr Cruse contended that the Authority wrongly construed NRMA's 15 August 2012 application as a "new" application for (lifetime) participation in the Scheme. NRMA contends that the application was clearly a "new" application for lifetime participation and that the Authority was correct to treat it as such. 74The word "new" is found in the preface and in the Note under clause 7 to the 2012 Guidelines. The second part of clause 7 provides that when any application for lifetime participation is made, "a new Application Form... must be submitted to the Authority for lifetime participation in the Scheme". The second part of clause 7 follows the first part that specifies that any initial application for participation in the Scheme can only result in an eligible participant being accepted as an interim participant. The ordinary and natural meaning of the word "new" ("of recent origin or production, having only lately come or been brought into being, coming or occurring afresh, further, additional") extends to or includes an application such as that made by NRMA on 15 August 2012. 75If the decision of the second Review Panel on 26 July 2012 was valid, Mr Cruse was not a participant in the Scheme at the time of NRMA's 15 August 2012 application, having been found by that Review Panel to be ineligible to participate. It follows that any application for participation in the Scheme, made in respect of Mr Cruse at a time when he was not a participant, must be a "new" application. 76The preface and Note apply the 2012 Guidelines to new applications, not new participants. The fact that Mr Cruse had been an interim participant some years before the 2012 Guidelines came into force is irrelevant. Clause 7 of the 2012 Guidelines makes it clear that NRMA was required to submit a "new" application form. Section 9(7) empowered the Authority to consider and accept that new application.

Disposition 77It is difficult to construe NRMA's 15 August 2012 application as anything other than a new application. The suggestion that the word "new" is redundant if the 2012 Guidelines are intended to apply to all or any applications made after the date of gazettal does not in my view lead to the result that the 15 August 2012 application is not governed by the 2012 Guidelines. It is reasonable to infer from the fact that the 2012 Guidelines apply to participants already in the Scheme at the date of gazettal that they were intended to apply to applications made after that date as well. In my opinion the word "new" is used in order to embrace and to reinforce the intention that applicants who are not yet participants in the Scheme at the date of gazettal but who are applying to become participants in the Scheme on the one hand, and then current participants in the Scheme who were accepted as such from a date prior to the date of gazettal on the other hand, should from the date of gazettal be treated alike and subject to the 2012 Guidelines. This appears to me to be no more and no less than a common sense provision directed at eliminating differences between participants in the Scheme on and from a nominated date regardless of when they may have applied to become, or have been accepted as, participants in the Scheme. The administrative disruption likely to be caused by any other result understandably informs the interpretation that is to be preferred.

Section 16 78Mr Cruse made a further fundamental complaint. He contended that s 16 favourably informed the entire result of his application. He made the following submission: "The effect of s16 itself was completely overlooked by the Authority. There is obvious error of law...because the Authority has proceeded on the basis that notwithstanding the decision of the review panel on 26 July 2012 the insurer can bring any number of further applications it likes on the basis that the decision of the Review Panel was to say that he was ineligible, so therefore he has not yet been made a lifetime participant, so therefore the insurer can make as many applications as it likes to have him made a lifetime participant. It is plainly and obviously wrong, so [Mr Cruse's] application before this Court is really quite straightforward. There has been error of law; the [26 November 2012] decision is bad." 79 NRMA responded with the following submission: "[The] terms [of s16] mandate how it should be construed. It begins with the words 'The determination of an Assessment Panel or of a Review Panel.' One could put before the word 'determination' the words 'validly made' because if it's not validly may obviously it can be the subject of judicial review and that goes without saying. So what is final and binding? What is final and binding is the determination as to whether an injury satisfies criteria specified in the LTCS Guidelines which must mean the Guidelines in force at the time the determination is made. No more and no less. What [Mr Cruse] is trying to do is to read s16 as if it said 'The determination of an Assessment Panel or a Review Panel as to whether a person is eligible for participation in the scheme is final and binding.' But that is not what the section says. It does not say 'a determination of the eligibility of a person is final and binding'. All that is final and binding is the determination as to whether the injury satisfies a particular set of criteria, namely, the criteria specified in the LTCS Guidelines which must mean the Guidelines, in effect, at the time of the determination. It can mean nothing else. This is why [NRMA] says s16 has no relevance to the application made by NRMA or its determination because there was no prior determination of the injury satisfying or not satisfying the criteria in the 2012 Guidelines which were those under which the determination sought by NRMA had to be made. But s16 is rather easily dealt with. It refers to criteria in Guidelines. It can only refer to the Guidelines in effect at a time of the determination. It closes off any revisiting of eligibility under those Guidelines for reasons one can readily understand, but it does not close off an application being made if there is a change in the Guidelines. It is going to be rather rare that someone who's 'out' under one set of guidelines becomes 'in' under a different set, and that's why this is the first such case that's come here." 80This controversy is easily quelled. Section 16 is in my opinion clearly limited or restricted to the question of whether a motor accident injury satisfies criteria specified in the Guidelines for eligibility for participation in the Scheme. The motor accident injury either does so or it does not. The nature and extent of the injury, and whether it satisfies the criteria for eligibility, is all that is final and binding. The section has nothing to say about, and does not operate in relation to, the question of whether or not a person is or should be a lifetime participant in the Scheme. Section 16 is limited to the anterior question of eligibility in the Scheme as a person who has suffered from a qualifying injury referred to in the relevant portion of the Guidelines. 81Section 16 is of no assistance to Mr Cruse in this case.

Conclusions and orders 82It follows that Mr Cruse's application to this Court for relief entirely fails. In the circumstances the second further amended summons should be dismissed with costs. It is unnecessary to make any order with respect to cross-summons and I decline to do so.

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: 25 October 2013