Gudelj v Motor Accidents Authority of New South Wales

Supreme Court of NSW|2010-05-14|Before: McDougall J, Dougall J

The application 19 The application considered by Ms Boyle was submitted on a form of "Application for Special Assessment". In terms, that is a form of application for assessment under s 96 of the MAC Act. 20 The application set out details of the accident and other relevant matters. 21 The application indicated, in Part 6B(a), that it was "an application for assessment of a dispute about whether… [a] late claim may be made in accordance with section 73 (section 96(1)(a))". 22 The application attached a number of documents. They included a statement of the issues, various statutory declarations and the insurer's letter rejecting Mr Gudelj's late claim. Outline of Ms Boyle's decision 23 Ms Boyle set out, briefly but sufficiently, the background facts, including Mr Gudelj's case that his disabilities had deteriorated since the accident, and had been exacerbated in an incident at work in June 2008. She then referred to the explanation provided by Mr Gudelj, apparently comprised in three statutory declarations. She summarised the explanation, as she understood it, in terms that have not been attacked as betraying some want of attention to all material circumstances. Ms Boyle then set out the insurer's response. Nothing turns on that. 24 Ms Boyle then turned her attention to the test that she was required to administer. She set out s 66(2) of the MAC Act, which states the content of the expression "full and satisfactory explanation by a claimant for… delay". That subsection reads as follows: 62 Referral of matter for further medical assessment

(1) first, that he had expected his symptoms to resolve, whereas in fact they had deteriorated; and

(2) second, that he was not aware of the relevant time limits under the MAC Act until he sought legal advice in July 2008. 28 Ms Boyle perceived some conflict between those explanations. She considered that it was implicit in the first reason that Mr Gudelj was aware of his rights but, thinking that his condition would improve, he chose not to pursue them. That analysis, which is open to doubt, does not appear to have been decisive in her reasoning. 29 The substance of Ms Boyle's reasoning is that, in her view, Mr Gudelj's condition had deteriorated well before he sought legal advice in July 2008, and he had before then continued to incur medical and related expenses. In her view, a reasonable person in his position would have sought legal advice sooner than he did. It is clear that, in reaching that conclusion, Ms Boyle reviewed the information provided by Mr Gudelj as to the deterioration of his symptoms and the medical and related treatment that he had received over time. 30 Finally, Ms Boyle noted that Mr Gudelj has worked as a spray painter. She inferred from that that he "presumably would have had access to information concerning, or knowledge of, motor accident claims, or otherwise worked with colleagues involved in the industry that would be aware of motor accident claims and the rights and obligations involved". That appears to have been, in her view, an additional reason supporting the conclusion to which she had come based on her analysis of the information provided by Mr Gudelj as to his medical condition from time to time and the treatment that he had received. The parties' submissions 31 Mr E G Romaniuk of counsel, who appeared for Mr Gudelj, relied on the decision of the High Court of Australia in Russo v Aiello (2003) 215 CLR 643. That decision referred to the statutory antecedent of the MAC Act, namely the Motor Accidents Act 1988 (NSW) (the 1988 Act). There was no suggestion that the relevant provisions of the 1988 Act differed in any material way from their equivalents in the MAC Act. 32 Gleeson CJ said at 645 [4] that "[t]he word "full" takes its meaning from the context" in which it appears. It referred, his Honour said, "to the conduct bearing upon the delay, and the state of mind of the claimant". 33 At 645[5], Gleeson CJ noted that the relevant part of the 1988 Act was "replete with legislative declarations of its objects". That was done, his Honour said, to give "practical content to terms such as "reasonable", "justification" and "satisfactory". The assessment of justifiable delay therefore fell "to be considered in the light of the legislative purposes explained in the Act", amplified by the requirement, now found in s 73(2) of the MAC Act, to take into account, if it is proffered, evidence as to delay in the onset of symptoms of injury. 34 At 646 [7], Gleeson CJ noted that the statutory test required "justification for delay; not demonstration that the delay caused no harm". However, his Honour said, the question of prejudice resulting from delay remained germane to the assessment, because the relevant objects of the Act included the early investigation and assessment of claims, and the early garnering of information relevant to claim frequency and the calculation of premiums. Nonetheless, his Honour concluded: … while the problems that insurers might experience as a result of delays in making claims form part of the general legislative concern, the focus of the statutory concept of a satisfactory explanation is upon justifying delay, rather than excusing it. It is one thing to say that conduct is justified by reference to the way in which a reasonable person in the position of a claimant could have been expected to behave. It is another thing to say that delay ought to be excused because it caused no identifiable harm to insurer. It is the former, not the latter, question that is raised for consideration. 35 At 651 [25], McHugh J agreed with the last portion of the passage of the reasons of Gleeson CJ that I have just set out. 36 Further, at 651 - 652 [27], McHugh J pointed out that whether a claimant has (or does not have) a full and satisfactory explanation for delay is a question of fact. But it is not a question of fact in the sense that it involves something perceivable by the senses: A "full and satisfactory explanation" for delay is an intellectual construct involving a value judgment, a judgment on which reasonable persons may have widely differing views. It is therefore properly described as a discretionary judgment. Because that is so, the Court of Appeal could set aside the primary judge's decision on the issue only on the basis on the well-known principles concerning an appeal against a discretionary judgment. 37 Mr Romaniuk noted that Ms Boyle had not referred to the decision in Russo, and had not, at least in terms or expressly, fashioned her analysis by reference to it. That was significant, Mr Romaniuk submitted, having regard to what he submitted were inadequacies and errors in Ms Boyle's analysis of the relevant facts. 38 Further, Mr Romaniuk submitted, Ms Boyle's analysis effectively ignored the proposition that one of the purposes of the MAC Act and its predecessor was to discourage small claims. That error was demonstrated he submitted, in her reference to the possible inconsistency in Mr Gudelj's reasons that she perceived (see at [28] above). 39 Mr Romaniuk sought to link the aspects of Ms Boyle's reasoning that I have summarised. He submitted that the first and third elements (the perceived possible inconsistency, and the knowledge to be imputed to a spray painter working in the automotive industry) "precluded the proper consideration of the intellectual construct involving a value judgment as to the satisfaction of the full and satisfactory requirement" (outline of submissions, para 41). In short, he submitted, those elements infected Ms Boyle's reasoning process based on her assessment of what a reasonable person in Mr Gudelj's position, experiencing the deterioration in symptoms of which he spoke, would have done. 40 Mr M A Robinson of counsel, who appeared for the insurer, submitted that it was not appropriate to pick an assessor's reasoning apart "on a line by line basis" (outline of submissions, para 18). That, he submitted, was no more than "an impermissible attempt to have the court examine for itself the real merits of the matter…" (ibid). He referred to a number of authorities, including Quin (referring to the judgment of Brennan J at 35 - 36) and Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 (referring to the plurality, Brennan CJ, Toohey, McHugh and Gummow JJ, at 272 and to Kirby J at 291). 41 Mr Robinson submitted that it was plain that Ms Boyle had applied the correct test, and that the conclusion that she had reached was one that was open to her on the facts. Decision 42 I start from the point that Ms Boyle's assessment was, as McHugh J pointed out in Russo at 651 -652 [27], "a discretionary judgment". 43 Brennan CJ, Toohey McHugh and Gummow JJ said in Wu Shan Liang at 272 that: … the reasons of an administrative decision-maker are meant to inform and not to be scrutinised upon over-zealous judicial review by seeking to discern whether some inadequacy may be gleaned from the way in which the reasons are expressed… any court reviewing a decision… must beware of turning a review of the reasons of the decision-maker upon proper principles into a reconsideration of the merits of the decision.

44 In the same case, Kirby J said at 291: The reasons under challenge must be read as a whole. They must be considered fairly. It is erroneous to adopt a narrow approach, combing through the words of the decision maker with a fine appellate tooth-comb [sic], against the prospect that a verbal slip will be found warranting the inference of an error of law. 45 It is plain that Ms Boyle turned her attention to the test prescribed by the statute: she quoted its terms. I do not regard that, as Mr Romaniuk submitted it was, as "formulaic". On the contrary, I regard it as indicating that Ms Boyle was well aware of what it was that she had to do. 46 Nor do I regard it as a criticism of Ms Boyle's assessment that she did not refer to the judgments in Russo. The duty of an assessor (who need not be legally qualified) is to perform the various tasks entrusted to him or her by statute. It is not necessary, nor in my view is it desirable, that in doing so an assessor should write a treatise on the relevant law. 47 I do not accept that Ms Boyle's reasoning is infected by error (if indeed there is error) in her perception of a potential inconsistency. Nor do I accept that it is infected by her view of what a spray painter in the automotive industry might know. On the contrary, I think, it is plain that the core of her reasoning is found in her assessment of what a reasonable person in Mr Gudelj's position, knowing (or experiencing) what Mr Gudelj knew (or experienced) from time to time after his accident, would have done. Mr Romaniuk did not submit that Ms Boyle's assessment of the medical evidence betrayed any reviewable error. The other matters were at most ancillary to her core reasoning. 48 In my view, the conclusion that Ms Boyle reached on the basis of the evidence (as she reviewed and summarised it) was one that was available to her. In essence, Ms Boyle accepted, Mr Gudelj's stated position was that he was ignorant of his rights until he sought legal advice in July 2008. The fact that she may have had reservations about that does not seem to me to matter, because she acted not upon the basis of those reservations but, instead, upon her analysis of what a reasonable person in Mr Gudelj's position would have done before July 2008. That analysis is conceptually distinct from the reservations that she expressed. 49 It follows, in my view, that the challenge to Ms Boyle's assessment fails. The challenge to Ms Cassidy's assessment The application 50 The application considered by Ms Cassidy was submitted on a form of "Application for General Assessment". In terms, that is a form of application for assessment under s 94 of the MAC Act. 51 The form of application sought "time limit information" for claims made before and after 1 October 2008: the date when the amendments to the MAC Act effected by the Motor Accidents Compensation Amendments (Claims and Dispute Resolution) Act 2007 (the 2007 Amending Act) took effect. Those amendments included a significant amendment to s 73, on which Mr Robinson placed substantial reliance. I shall return to this. 52 Mr Gudelj dealt with the request for time limit information by stating: The claimant submits that his claim is not suitable for assessment at CARS based on liability being deemed denied under section 81(3)(clause 14.16.8). The CTP insurer, NRMA was notified of Claimant's claim on 28 October 2008… to date NRMA has neither accepted nor denied liability. (emphasis in original) 53 In amplification of this somewhat cryptic response, the application referred the reader to Part 6A, which dealt with "suitability for assessment". 54 In Part 6A of the form, Mr Gudelj indicated that he submitted that his claim was not suitable for assessment because "[t]he insurer is deemed to have denied liability under section 81(3) (clause 14.16.8)". Outline of Ms Cassidy's decision 55 Ms Cassidy set out a chronology of relevant events (including the application under s 96(1)(a) of the MAC Act determined by Ms Boyle). She said that the file had been referred to her "to determine whether Mr Gudelj's claim can be referred to the Authority by way of an application for general assessment". She made the point that she was not "considering whether or not the claim is suitable for assessment": that was a matter to be dealt with by a claims assessor if Ms Cassidy determined that the application could be made and dealt with. 56 Ms Cassidy referred to the legislative background, and set out the terms of s 73(3) of the MAC Act (as I have said, amended by the 2007 Amending Act). Ms Cassidy noted that it was common ground that paras (a) and (b) of sub-s (3) had no application. Accordingly, she stated, the issue for her decision was whether para (c) applied. 57 Ms Cassidy referred to Mr Gudelj's application and noted that, on its face, "it would appear that the claimant is only referring his claim for assessment in order to make an application to a claims assessor and have him or her find the claim is not suitable for assessment and to have the PCA consent to that and issue a certificate of exemption from assessment". 58 Ms Cassidy referred to the parties' submissions, noting that "neither of them… were particularly helpful on this threshold issue". Having done so, she posed what she saw as being the two key questions of construction:

(1) the meaning of "referred only for a certificate of exemption from assessment"; and

(2) the meaning of "referred for assessment under Part 4.4". 59 Ms Cassidy noted that, by s 90 of the MAC Act, both claimants and insurers could refer claims to CARS for assessment. She referred to s 88(2) and noted that what could be thus referred included a claim for a certificate of exemption. 60 Ms Cassidy then turned her attention to s 92 of the MAC Act. She said, correctly, that it provided for two kinds of exemptions from assessment:

(1) what she described as "the mandatory exemption" under s 92(1)(a); and

(2) what she described as "discretionary exemptions" under s 92(1)(b). 61 Ms Cassidy noted that the distinction between those two kinds of exemption was supported by the Guidelines and the forms of application put forward by the Authority. 62 Ms Cassidy concluded that s 73(3)(c) was restricted to referrals for what she described as mandatory exemptions - exemptions under s 92(1)(a). In other words, she decided that the words "referred only for a certificate of exemption… "in s 73(3)(c) dealt only with s 92(1)(a). That was so, she concluded, because a "discretionary" exemption under s 92(1)(b) was something that occurred after an assessor had made a preliminary assessment of the claim (that is to say, after an assessor had commenced to make an assessment under s 94). 63 Ms Cassidy referred to what Ipp JA had said in Paice v Hill (2009) 53 MVR 114 at 119 - 120 [43]. In that paragraph, his Honour noted (in relation to the MAC Act as it stood before the commencement of the 2007 Amending Act) that, when s 92(1)(b) was read in conjunction with s 92(2), a certificate of exemption could be issued if a claims assessor, having made a preliminary assessment of a claim, determined, with the approval of the Principal Claims Assessor, that the claim was not suitable for assessment. His Honour said: By s 92(1)(b), therefore, a certificate for exemption of [sic] assessment could only be issued after a claims assessor had made a preliminary assessment of the claim. For a claims assessor to make such a preliminary assessment, a claim had to be referred for general assessment under s 94. Thus, a certificate of exemption could only be issued after the claim had been referred for general assessment under s 94. 64 Ms Cassidy reasoned that, since s 73(3) barred the referral for assessment of late claims except in the circumstances set out in paras (a) to (c), there could be no referral for general assessment under s 94, and thus no preliminary assessment of a kind that could give rise to a certificate of exemption under s 92(1)(b). 65 Ms Cassidy thought that if s 73(3)(c) did apply to discretionary exemptions, there could be "bizarre" consequences. It is not necessary to set out the detail. 66 As to the second issue - "referred for assessment under Part 4.4" - Ms Cassidy appears to have taken the view that those words referred to a referral for assessment of liability and quantum under s 94 of the MAC Act. She referred to the decision of Ipp JA in Hayek v Trujillo (2007) 49 MVR 12 at 22 [67]. His Honour there said (again, in relation to the MAC Act as it stood before the commencement of the 2007 Amending Act) that, because a determination under s 96(1)(a) was not binding on the parties, a determination that was adverse to a claimant would not prevent the claimant from requiring assessment of the questions of liability (if in issue) and quantum, and the issue of a certificate. 67 Ms Cassidy said that the amendments to s 73(3) were intended to, and in her view did, address this situation. 68 Accordingly, Ms Cassidy concluded that the only matter open for her consideration was a claim for mandatory exemption under s 92(1)(a). She concluded that, since that there was no applicable exemption under the Guidelines or the Regulations, Mr Gudelj was not entitled to a certificate of exemption. In particular, she said, para 8.11.1 of the Guidelines had no application because NRMA had given no notice denying liability pursuant to s 81 of the MAC Act. The parties' submissions 69 As to the principal issue - the operation of s 73(3)(c) - Mr Romaniuk submitted that referral for a certificate of exemption from assessment included both referral for a certificate under s 92(1)(a) and referral for a certificate under s 92(1)(b). Thus, he submitted, even if Ms Cassidy were correct in her conclusion that there was no basis for the issue of a certificate under s 92(1)(a), nonetheless she had failed to perform in full her statutory function, because (as a result of the view that she took) she had not dealt with s 92(1)(b). 70 Mr Romaniuk submitted that, on its proper construction, s 73(3)(c) permitted a claim to be referred for a certificate of exemption under s 92(1)(b). Once that happened, he submitted, the claim could be referred for assessment under Pt 4.4 generally even though a certificate of exemption was refused. In other words, Mr Romaniuk treated the expanded operation (as he submitted it was) of s 73(3)(c) as a gateway (or, in Mr Robinson's words, "back door") into the process of assessment under s 94. On that approach, the operation of the phrase "referred for assessment under Part 4.4" follows automatically. 71 Mr Robinson submitted that Ms Cassidy's reasons were correct. Alternatively, he submitted, her conclusion could be supported by a distinct chain of reasoning. In essence, that alternative reasoning involved the operation of ss 72 and 73 of the MAC Act after the commencement of the 2007 Amending Act. 72 Mr Robinson's alternative approach involved the following steps:

(1) a "claim", as defined in s 3 of the MAC Act , must be a claim made within six months after the date of the accident, and a claim made outside that time limit is not a claim for the purposes of the MAC Act . This followed, Mr Robinson submitted, from ss 72 and 73 on their proper construction, bearing in mind the amendments made to s 73 by the 2007 Amending Act.

(2) The only exception is that found in s 73: a "late claim".

(3) A late claim can only be a claim capable of being referred for assessment under s 94 if the claimant gives a full and satisfactory explanation for the delay in making the claim. That is a jurisdictional fact. Mr Robinson referred to Gedeon v Commissioner of the New South Wales Crime Commission (2008) 236 CLR 120 at 139 [43] - [47]. (Presumably, this step in the alternative reasoning applies only where the insurer has lost the right to reject the claim on the ground of delay.)

(4) The jurisdictional fact is satisfied if the insurer accepts that the claimant has made a full and satisfactory explanation or if a claims assessor so determines by the process of special assessment under s 96(1)(a) of the MAC Act .

(5) The reference in s 81 to "the claim" is to be read as a reference to a claim made within six months of the date of the accident. If the claim is made outside that time, s 81 imposes no duty on the insurer to admit or deny liability.

(1) a claim can only proceed for assessment under s 94 if it is made within time or if, being a late claim, the claimant's explanation for delay is accepted either by the insurer or by an assessor under s 96(1)(a); and

(2) if a claim is made late, there can be no deemed denial of liability under s 81(3) even if the insurer neither admits nor denies liability within three months of receipt of the late claim, and para 8.11.1 of the Guidelines has no application. 74 I should add that, in relation to the second of those consequences, Mr Robinson's primary submission was that para 8.11.1 applied only where there was an actual denial of liability. He relied on the reference to "the insurer's written notice issued in accordance with section 81". Decision 75 It is convenient to start by referring back to the objects of the Act, as set out in s 5 (see at [8]) above. The MAC Act seeks to achieve the speedy resolution of claims, and, where this cannot be done consensually, to achieve that in the first instance by assessment under Pt 4.4. (For the moment, I put to one side claims that, under s 92, are exempt from assessment.) It is only if one party or the other is dissatisfied with the outcome of the assessment that the party can take it to court (to the extent that this is permitted by s 95). 76 Rothman J gave a useful overview of the operation of the Act in Checchia v Insurance Australia Ltd [2009] NSWSC 1005 at [8] to [11]. I adopt what his Honour said: [8] The purpose of the legislation was the establishment of a new scheme for motor accident compensation that, generally, did not involve curial proceedings. Medical assessors resolve differences between injured persons and the relevant insurer as to the extent of the injury and whether the alleged accident was the cause of the injury. There exists a right of appeal to a Review Panel (which also consists of medical assessors).

[9] The insurer is obliged by the Act to endeavour to resolve the claim, by settlement or otherwise, justly and expeditiously. It is, in that context, required to give written notice of its attitude to liability no later than three months from the making of the claim. It is also an insurer's duty to make a reasonable offer of settlement (either a money amount for damages or a method of calculating same) within the later of one month from the stabilisation of the injury or two months from the provision of particulars by the claimant. It is required to cover hospital, medical and other expenses from the time of admitting liability (or having it determined) and also to take reasonable steps for the medical rehabilitation of the claimant.

[10] On the other hand, the claimant is required under the Act to cooperate fully with the insurer (and insured) as to the claim, by providing enough information to satisfy the insurer as to the validity of the claim and in order to facilitate an early offer of settlement. Further, a claimant is required to answer any reasonable request for particulars and to provide copies of documents.

[11] Generally, although some claims are the subject of court proceedings, Claims Assessors will assess claims in accordance with guidelines that have been promulgated. It is unnecessary, for present purposes, to discuss the details of the foregoing. It is sufficient to note the general scheme and the imposition of obligations on claimants and insurers. Further, it is a criminal offence (and often a breach of the licence conditions) for an insurer to contravene an obligation imposed upon it under the Act. 77 It will be observed that s 73(3) speaks in mandatory terms ("…a late claim… cannot be referred for assessment under Part 4.4 unless…"). That language is reflected in two other sections contained in Pt 4.2 of the MAC Act (which deals with "claims and other preliminary matters"). 78 The first of those is s 70, which by sub-s (1) imposes what is called the "police accident report requirement". That is a requirement to report to the police, within 28 days after its occurrence, a motor vehicle accident that gives rise to a claim (with an exception where a police officer attended the accident). By sub-s (2), a claimant "must provide to the insurer a full and satisfactory explanation for any non-compliance with the police accident report requirement". Subsection (3) spells out the consequences of non-compliance. It, like s 73(3), provides that the consequence of non-compliance is that "the claim cannot be referred for assessment under Part 4.4 unless" one or other of the three already familiar conditions is satisfied: 70 Reporting of motor accident to police

(3) If the police accident report requirement for a claim is not complied with, the claim cannot be referred for assessment under Part 4.4 unless: (a) the insurer has lost the right to reject the claim on the ground of that non-compliance, or (b) a claims assessor has, on the assessment of a dispute as to whether the claimant has a full and satisfactory explanation for the non-compliance, assessed that sufficient cause existed to justify the delay in reporting the motor accident to a police officer and that a report of the motor accident to a police officer was made within a reasonable period in the circumstances, or (c) the claim is referred only for a certificate of exemption from assessment under Part 4.4. … 79 The second of those sections is s 74. It deals with the form and required contents of a notice of claim. Section 76 makes plain the consequences of non-compliance: "a claim cannot be referred for assessment under Part 4.4 unless" one of the three requirements is satisfied: 76 Rejecting claims for failure to comply with section 74

(1) If section 74 has not been complied with, a claim cannot be referred for assessment under Part 4.4 unless: (a) the insurer has lost the right to reject the claim for non-compliance with section 74, or (b) a claims assessor has, on the assessment of a dispute as to whether the claim may be rejected for non-compliance with section 74, assessed that the non-compliance is technical and of no significance, or (c) the claim is referred only for a certificate of exemption from assessment under Part 4.4.

… 80 The common language of ss 70, 73 and 76 has its origin in the 2007 Amending Act. So too does s 34A, which was inserted by that Act. 81 Section 34A appears in Pt 2.4 of the MAC Act. That Part deals with uninsured or unidentified motor vehicles. Section 34 gives a right to claim against the Nominal Defendant in some circumstances. By s 34(1AA), "[a] claim cannot be made against the Nominal Defendant… unless due inquiry and search has been made to establish the identity of the motor vehicle concerned". 82 Section 34A deals with the consequences of failure to make due inquiry and search. Again, in those circumstances, the claim "cannot be referred for assessment under Part 4.4 unless" one of the three conditions applies: 34A Rejection of claim for failure to make due inquiry and search to establish identity of vehicle

(1) If due inquiry and search has not been made to establish the identity of the motor vehicle concerned, a claim against the Nominal Defendant under section 34 cannot be referred for assessment under Part 4.4 unless: (a) the Nominal Defendant has lost the right to reject the claim for failure to make that due inquiry and search, or (b) a claims assessor has, on the assessment of a dispute as to whether the claim may be rejected for failure to make that due inquiry and search, assessed that due inquiry and search has been made, or (c) the claim is referred only for a certificate of exemption from assessment under Part 4.4.

… 83 In each of the sections to which I have referred, the legislature was at pains to specify the consequences of non-compliance with the particular requirement with which the section was concerned. It did so in clear and unambiguous language, by prohibiting assessment of the claim under Pt 4.4 unless one or other of the three excusing conditions was satisfied. Further, in each of those sections, the legislature in effect preserved, as a possible bar to subsequent court proceedings, the consequences of non-compliance with the relevant requirement. See sub-ss (3) to (5) of s 34A, sub-s (5) to (7) of each of ss 70 and 73, and sub-ss (3) to (5) of s 76. 84 When one reads those sections in conjunction with the definition of "claim" in s 3 of the MAC Act, it seems to me to be plain that what must not proceed to assessment under Pt 4.4 is, in each case, "a claim for damages in respect of the death of or injury to a person caused by the fault of the owner or driver of a motor vehicle in the use or operation of the vehicle". There is a clear distinction between a claim and the assessment of a claim. Further, although for the purposes of Pt 4.4 "referring a claim for assessment… includes a reference to referring a claim for a certificate of exemption from assessment" (see s 88(2)), that is limited to the particular purposes of Pt 4.4. It does not extend, generally for the purposes of the MAC Act, the definition of "claim" in s 3 (although, as I explain at [102] below, s 88(2) does have some impact on s 73(3)). 85 It is correct to say that, by s 73(3), a late claim can be referred for assessment under Pt 4.4 if one of the three conditions set out in that sub-section is met. But what is thereby referred for assessment is "a claim". Again, that takes one back to the definition of "claim" in s 3 of the Act. Section 88(2) applies, for the purposes of Pt 4.4, because s 73(3)(c) contemplates that a claim may be referred for a certificate of exemption from assessment under Pt 4.4. But what is referred for that purpose is still a "claim" as defined. 86 Mr Robinson submitted that there was a clear distinction between a "claim" as permitted in s 72 and a "late claim" to which section 73 applied. I am not sure that the distinction is clear-cut. In each case, the subject is a "claim" as defined in s 3. The subject of s 72 is a claim made within six months. The subject of s 73 is a claim made outside that time period. Such a claim is called, for drafting reasons, a "late claim". But it is no more than that: a claim made late. For present purposes, the significance of s 73 is that it limits the circumstances in which a claim made late can proceed to assessment under Pt 4.4. 87 Since Mr Gudelj's claim was made outside the six month period prescribed by s 72, it can only be referred for assessment if it meets one of the conditions set out in s 73(3). It was not suggested that para (a) or para (b) was applicable. The debate focused on para (c). 88 Mr Romaniuk submitted that a reference for a certificate of exemption comprehended exemption under both para (a) and para (b) of section 92(1). Mr Robinson submitted that it was only the "mandatory" exemption under s 92(1)(a) that was relevant for the purposes of s 73(c). 89 Looking at the matter in general terms, a claim may be referred for assessment under s 94 if:

(1) it is made within time (s 72) and is not exempt (or certified to be exempt) from assessment (s 92); or

(2) it is made out of time (s 73) and either the insurer has lost the right to reject the claim on the ground of delay (section 73(3)(a)) or an assessor has assessed that the claimant has a full and satisfactory explanation for delay (s 73(3)(b)). 90 As a matter of language, a late claim that is referred for a certificate of exemption will not proceed to assessment under s 94 if the certificate of exemption is granted. That is because the effect of the claim's exempt status (or of the certificate to that effect) is that the claim goes to court rather than to assessment under s 94. 91 Against that background, it would be quite extraordinary if, notwithstanding a determination that a claim was not exempt from assessment, nonetheless, the very fact of making an application for such a determination overcame the disqualifying effect of delay. If that were the proper meaning to be given to s 73(3)(c) (as Mr Romaniuk in effect submitted), it would enable any late claimant to bypass the prohibition for which s 73(3) provides by making a claim for a certificate of exemption. That would be so even if that claim was manifestly hopeless. That construction would set at nought the careful scheme of the sub-section, whereby late claims proceed to assessment under s 94 only if the insurer has lost the right to reject the claim on that ground or an assessor has determined that the claimant has provided a full and satisfactory excuse. 92 That conclusion does not however deal with the meaning or operation to be attributed to the words of s 73(3)(c). It is clear that those words comprehend at least referral for a certificate of exemption based on s 92(1)(a). Do they comprehend also referral for a certificate of exemption based on s 92(1)(b)? In my view, they do. I shall explain why. 93 A claim is exempt from assessment under Pt 4.4 if it qualifies for either a mandatory exemption under s 92(1)(a) or a discretionary exemption under s 92(1)(b). In either case, the outcome is that the Principal Claims Assessor must issue "a certificate to that effect". That is a certificate to the effect that the claim is exempt from assessment under Pt 4.4. In other words, the issue of such a certificate is the outcome of either kind of exemption (if a ground of exemption is made out on the facts). That certificate is one of two gateways to proceedings in a court (s 108). 94 Going back to s 73(3)(c), it is concerned with "a certificate of exemption from assessment under Part 4.4". In that phrase, the words "under Part 4.4" qualify the word "assessment", not the words "certificate of exemption". That is because s 73(3)(c) directs one to s 92. As sub-s (1) makes clear, that section is concerned with claims that are "exempt from assessment under this Part". In s 73(3)(c), the words "under Part 4.4" are intended to pick up the words "under this Part" in s 92(1). 95 In essence, the construction for which Mr Robinson contended means that s 73(3)(c) should be read as "the claim is referred only for a certificate of exemption from assessment under s 92(1)(a)". But that is not what the legislature enacted. Nor is it consistent with s 92(2), which describes a certificate of exemption. 96 I accept that Ipp JA said in Paice at 119 - 120 [43] that, under s 92(1)(b), "a certificate of exemption could only be issued after a claim had been referred for general assessment under s 94". However, his Honour was not speaking in the context of s 73(3) at all, let alone s 73(3) as it now stands. The 2007 Amending Act had not taken effect at the time the relevant claim was made. 97 I accept, further, that in the ordinary way, s 92(1)(b) will arise for consideration only after a claim has been referred for assessment under s 94. But that does not mean that this is the only circumstance, under the MAC Act as it now stands, when a determination can be made under s 92(1)(b). Since Ipp JA wrote, the legislature has indicated that a late claim may be referred for a certificate of exemption from assessment under Pt 4.4. It did so in terms that, for the reasons that I have given, call up both paragraphs of s 92(1). Thus, taking into account the amendments effected by the 2007 Amending Act, I do not regard the reasoning of Ipp J in Paice as requiring that I should come to any different conclusion. 98 As I have noted at [93], if a claim is certified under s 92 to be exempt from assessment, court proceedings may be commenced (s 92(2); and see also s 108). Section 109 contemplates that court proceedings may not be commenced more than three years after the date of the motor accident to which the claim relates, without the leave of the court. It follows that a late claim that is certified to be exempt from assessment under Pt 4.4 may be brought before a court within three years after the date of the accident. On the construction of s 73(3)(c) for which Mr Robinson contended, a plaintiff in the position of Mr Gudelj could only commence proceedings in court if his claim were exempt from assessment under s 92(1)(a). There is no reason why the legislature should have intended such a limitation on the rights of a claimant. Nor does the language of s 73(3)(c), read in conjunction with s 92, leave no other view available. 99 It is important to note that, where a late claim that is certified to be exempt from assessment under Pt 4.4 is brought before a court, the insurer retains whatever rights it has in respect of the claimant's delay in making the claim. That follows from s 73(5) - (7). Thus, a late claimant is not put in some better, or more advantageous, position if he or she bypasses assessment under Pt 4.4 and commences proceedings in a court. 100 I accept that it is not entirely easy to mesh s 73(3)(c) with s 92. However, s 92(1)(b) does not specify that a claim is exempt from assessment if "a claims assessor has made a preliminary assessment of the claim under s 94 and has determined…that it is not suitable for assessment under this Part". If a late claimant seeks a certificate of exemption under s 92(1)(b), an assessor will have to conduct a "preliminary assessment" to consider whether the claim is justified. In one sense, it is a somewhat strained use of language to describe such an assessment as "preliminary": "preliminary" to what? That description is however entirely apt, where, in the course of undertaking an assessment under s 94, an assessor decides that it is unsuitable for assessment under s 92(1)(b). It might be more appropriate to describe what happens, where a late claimant seeks a certificate of exemption under s 92(1)(b), as a "limited" assessment. But that linguistic difficulty does not seem to me to be of such magnitude as to warrant the conclusion that it is only late claims that are exempt from assessment under s 92(1)(a) that can be brought before a court. 101 The purpose of s 73(3)(c) is to ensure that claims that are not suitable for assessment under Pt 4.4 are dealt with (if at all) in court. In doing so, the statutory scheme in effect gives the last say, as to whether there is a full and satisfactory explanation for delay, to the court. There is no reason why the opportunity to persuade a court that the explanation was full and satisfactory should have been preserved for a late claimant exempted under s 92(1)(a), but not for a late claimant exempted (or who qualifies to be exempted) under s 92(1)(b). 102 On that analysis, the words "referred for assessment under Part 4.4" in the chapeau of s 73(3) refer to all kinds of assessment for which Pt 4.4 provides. Those kinds of assessment include a claim for a certificate of exemption from assessment (because the words "under Part 4.4" engage s 88(2), and hence s 92), assessment under ss 94 and 94A and special assessments under s 96. Section 73(3)(c) makes an exception, from the general prohibition contained in the chapeau, for claims for a certificate of exemption. For the reasons that I have given, that applies to claims under s 92(1)(b) as much as it does to claims under s 92(1)(a). 103 It follows, in my view, that Ms Cassidy was in error in taking the approach that she did to the application that she considered. She should not have restricted her consideration to s 92(1)(a). In those circumstances, the conventional outcome would be that the Court should grant relief in the nature of certiorari, and remit the matter to her to be considered according to law. In the ordinary way, the Court would not itself undertake the discretionary exercise.

104 Mr Romaniuk submitted that s 92(1)(b) applied because of para 14.6.8 of the Guidelines. But, in my view, the insurer is not "deemed to have denied liability under section 81(3)". That is because s 81(3) only applies if the insurer is in default of the duty cast on it by, relevantly, s 81(1). Section 81(1) requires an insurer to give written notice to the claimant, whether the insurer admits or denies liability for the claim, no later than "within three months after the claimant gave notice of the claim under section 72". In this case, Mr Gudelj did not give notice of the claim under s 72. Section 72 refers to a claim made within six months after the relevant date, not to claims made (as was Mr Gudelj's claim) outside that time limit. Since there was no notice of claim under s 72, there was no failure to comply with s 81(1) capable of activating s 81(3). 105 But under para 14.6, consideration under s 92(1)(b) is not limited to the circumstances set out in the succeeding sub-paragraphs. As a matter of language, it would be open to an assessor, or to Ms Cassidy as Principal Claims Assessor, to determine that Mr Gudelj's claim was not suitable for assessment even if none of the conditions stated in paras 14.16.1 to 14.16.11 were met. Thus, even though para 14.16.8 is not applicable, it is conceivable that grounds might exist which would justify the issue of a certificate of exemption under s 92(1)(b).

106 It is necessary to give some attention to the detail of Mr Gudelj's application for general assessment, which is the application with which Ms Cassidy dealt. I have set out the relevant details at [52] to [54] above. It is clear from the application that:

(1) Mr Gudelj was not asserting that his claim was not suitable for assessment because it was entitled to a mandatory exemption under s 92(1)(a) (Part 6A of the form of application explicitly provided for the claimant to indicate if the claim for exemption was made pursuant to s 92(1)(a)); and

(2) the basis on which it was submitted that the claim was not suitable for exemption was that set out in para 14.6.8 of the Guidelines: the alleged deemed denial liability under s 81(3). That is, of necessity, a claim for exemption under s 92(1)(b). 107 It could be said that Part 6A of the form is not entirely consistent with para 14.16 of the Guidelines, in so far as those Guidelines direct attention "to the circumstances of the case… including but not limited to" the matters specified in the eleven following subparagraphs. However, as I have noted at [52], Mr Gudelj took the opportunity to set out in more detail, in Part 5B of his application, the basis of his claim under s 92(1)(b). It is a reasonable inference from the application, considered as a whole, that the only circumstance on which Mr Gudelj relied to support his claim for exemption from assessment was that set out in para 14.16.8. Since I have concluded that para 14.16.8 is inapplicable (because there was no deemed denial of liability under s 81(3) of the MAC Act), there is no reason to remit the matter to Ms Cassidy for further consideration in respect of the claim for exemption under s 92(1)(b).

108 I turn to the error alleged in Ms Cassidy's consideration under s 92(1)(a). As I have noted already, Mr Gudelj's application did not call in aid s 92(1)(a). However, Ms Cassidy did deal with s 92(1)(a), and Mr Romaniuk and Mr Robinson directed submissions to this aspect of her reasoning. In those circumstances, I shall deal with the submissions notwithstanding that, on one view, both Ms Cassidy's reasons and the submissions go beyond the bounds of Mr Gudelj's application. 109 By para 8.11 of the Guidelines, a certificate of exemption is to be issued only where the claim involves one or more of the circumstances set out in paras 8.11.1 to 8.11.6 (it was not suggested that there was any relevant regulation extending the class of exempt claims to which s 92(1)(a) refers). Mr Romaniuk submitted that para 8.11.1 applied, because the insurer was deemed, pursuant to s 81(3), to have denied liability. There are two answers to that submission. The first is that para 8.11.1 refers to the insurer's written notice. In this case there was no "written notice issued in accordance with section 81". The second answer is that even if the paragraph should be construed to extend to a deemed denial under s 81(3) (a point on which I express no opinion), for the reasons I have given at [104] above there was no deemed denial of liability under that sub-section. 110 It follows that Ms Cassidy was correct to conclude that Ms Gudelj was not entitled to a mandatory exemption under s 92(1)(a). 111 Ms Cassidy determined that Ms Gudelj's claim should be dismissed. Mr Romaniuk submitted that she had no power to do so. He submitted that the concept of dismissal was foreign to the Act, and that in so far as the Guidelines provided in some circumstances for dismissal of an application, they were beyond power. 112 As I have noted, para 8.12.1 of the Guidelines provides that an application for exemption may be dismissed if the claim is not one that may be exempted in accordance with s 92(1)(a) and cl 8.11. In terms, on both Ms Cassidy's reasoning and the view to which I have come, that paragraph of the Guidelines applies. 113 Further, and again as I have noted, para 13.1 authorises dismissal of applications in certain circumstances. 114 Mr Robinson objected to the Court's dealing with this aspect of Mr Romaniuk's submissions. He submitted, correctly, that the challenge to Chapter 13 of the Guidelines had not been flagged in the summons (by way of a discrete claim for relief) or in the submissions filed with the summons. 115 As I have noted, the Authority filed a submitting appearance. Had it been notified of a challenge to Chapter 13 of the Guidelines, the Authority may well have wished to participate, to a limited extent, to uphold the validity of Chapter 13. Whilst that would be a most unusual course, it may be justified by reference to what was said by the High Court in The Queen v The Australian Broadcasting Tribunal; ex parte Hardiman (1980) 144 CLR 13 at 35 - 36. 116 In any event, in circumstances where the challenge was not flagged and where the insurer was not given an adequate opportunity to consider the by no means simple questions raised, I do not think that it is appropriate to allow the challenge to proceed. I have concluded, in substance, that the challenges to the conclusions of Ms Boyle and Ms Cassidy fail, and that the applications should not be remitted to them (or other assessors) for further consideration. It follows that there is, as a matter of substance or practicality, nothing left in those applications. In those circumstances, applying s 56 of the Civil Procedure Act 2005 (NSW), there is in any event nothing to be gained by considering what is, so far as Mr Gudelj is concerned, an arid technicality. Conclusion and orders 117 Mr Gudelj's challenge to Ms Boyle's determination fails. His challenge to one aspect of Ms Cassidy's reasoning succeeds, but the conclusion to which she came was correct, for the reasons that I have given. It follows, as a matter of discretion that there is no point in granting relief and remitting the matter to Ms Cassidy, since the only result of further consideration would be, as I have indicated, that the claim made by Mr Gudelj for exemption from assessment must fail. 118 In those circumstances, the summons should be dismissed with costs and I so order.

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CITATION : Gudelj v Motor Accidents Authority of New South Wales [2010] NSWSC 436

Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1KB 223 Attorney-General for the State of New South Wales v Quin (1990) 170 CLR 1 Checchia v Insurance Australia Ltd [2009] NSWSC 1005 Gedeon v Commissioner of the New South Wales Crime Commission (2008) 236 CLR 120 CASES CITED : Hayek v Trujillo (2007) 49 MVR 12 Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 Paice v Hill (2009) 53 MVR 114 Russo v Aiello (2003) 215 CLR 643 The Queen v The Australian Broadcasting Tribunal; ex parte Hardiman (1980) 144 CLR 13

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