Ms Cassidy's decision
46This aspect of the appeal turns essentially on whether there was a notice by NRMA denying liability or whether NRMA is taken to have given such a notice, pursuant to s 81(3). Otherwise, the question of whether or not s 73(3) extends to exemptions under s 92(1)(b) does not make any difference.
47Mr Romaniuk submitted that the primary judge was in error in holding that the duty under s 81(1) did not arise in this case on the ground that there was no "notice of the claim under s 72" within the meaning of those words in s 81(1), because the applicant's claim was not made within six months as required by s 72.
48Mr Rewell SC for NRMA submitted that there could not be a duty under s 81(1) in cases where the insurer has rejected a claim for being late; and that s 81(3) only operates where there is failure to comply with the section, that is, where there has been a breach of the duty in s 81(1). He contended that this was supported by the consideration that the Act was amended following the Hayek decision, in order to deal with a mischief disclosed in that case.
49In my opinion, resolution of this question is assisted by taking an overview of the scheme of the Act, particularly in the light of the decision in Hayek and the amendments following that decision.
50Hayek , like the present case, concerned a claim made outside the six month period prescribed by s 72(1) of the Act. As in this case, the claimant applied for a special assessment under s 96 of the Act on the question whether a late claim could be made; and as in this case the CARS assessor determined that it could not be, because the claimant had not provided a full and satisfactory explanation of the delay. The claimant then brought court proceedings to enforce her claim.
51The District Court judge dismissed the proceedings, inter alia on the ground that the claimant did not have a full and satisfactory explanation for the delay. However, the Court of Appeal said that it was not open to the judge to dismiss the proceedings on that basis, because in that case (unlike this case) the insurer had lost the right to challenge the claimant's claim on the ground of delay. Nevertheless, the Court of Appeal held that the proceedings were correctly dismissed, because s 108 had not been complied with: the certificate issued in respect of the s 96 determination was held not to be a certificate under s 94, so as to satisfy s 108(1)(b).
52In Hayek , that was not the end of the claimant's claim. Ipp JA (with whom Mason P and McColl JA agreed) said this:
[64] Mr Semmler submitted that, unless a certificate relating to the assessment of a dispute under s 96(1), and issued in accordance with the machinery provided by s 94, is regarded as a certificate that satisfies s 108(1)(b), a party dissatisfied with the findings of the assessor reflected in such a certificate would have no right to take court proceedings to challenge the certificate in question. I accept that, were that to be correct, it would not be a desirable result.
[65] For the reasons I have explained, however, an assessment of a dispute as to a matter set out in ss 96(1)(a), (b) and (c) is not binding on the parties as such an assessment does not relate to the duties of the parties under Pt 4.3 with respect to the claim.
[66] The matters that are the subject of ss 96(1)(d) and (e) are tangential to the principal issues that would arise between the parties and do not raise matters of substance. The fact that those matters might be binding on the parties does not give rise to concern.
[67] Thus, in my view, a claimant, who has received an unfavourable certificate under s 96(1)(a), is entitled, thereafter, so long as the claim is not exempt from assessment, to require the claims assessor to make an assessment of the issue of liability (unless the insurer has accepted liability - see s 94(1)(a)) and the amount of damages for that liability, and to issue a certificate as to the assessment under s 96(4). The claimant, thereafter, would be entitled to commence court proceedings (despite the unfavourable s 96 certificate). That is because that certificate is not binding on the parties. On that basis, a main plank of Mr Semmler's argument disappears.
53The reference in par [67] to "a certificate as to the assessment under s 96(4)" is plainly a typographical error for "a certificate as to the assessment under s 94".
54This course was open because of the then form of s 73:
73 Late making of claims
(cf s 43A MAA)
(1) A claim may be made more than 6 months after the relevant date for the claim under section 72 (in this section called a late claim ) if the claimant provides a full and satisfactory explanation for the delay in making the claim. The explanation is to be provided in the first instance to the insurer.
(2) Evidence as to any delay in the onset of symptoms relating to the injury suffered by the injured person as a result of the motor accident may be given in any such explanation.
(3) This subsection applies if the late claim is made.
(a) If, within 2 months after receiving a late claim for which no explanation for delay is provided, the insurer does not reject the claim or ask the claimant to provide a full and satisfactory explanation for the delay in making the claim, the insurer (and the person against whom the claim is made) lose the right to challenge the claim on the ground of delay.
(b) If, within 2 months after receiving an explanation for delay in the making of a late claim, the insurer does not reject the explanation, the insurer (and the person against whom the claim is made) lose the right to challenge the claim on the ground of delay.
(c) If court proceedings are commenced in respect of a late claim, an insurer (or the person against whom the claim is made) may apply to have the proceedings dismissed on the ground of delay only within 2 months after the statement of claim is served on the defendant and received by the insurer. The insurer (or the person against whom the claim is made) may apply to have the proceedings dismissed on the ground of delay only if the insurer (or the person) has not lost the right to challenge the claim on the ground of delay.
(4) A court must dismiss proceedings commenced in respect of a late claim if the court is satisfied that the claimant does not have a full and satisfactory explanation for the delay in making the claim.
55Following this decision, s 73 was amended to its present form.
56The effect of the decision in Hayek was that, under the legislation as it stood, a s 96 determination of whether a late claim could be made had no effect. On a late claim, a reference for assessment under s 94 would be made and would proceed in the same way, whether such a s 96 determination was made or not, and (if it was) whichever way it went. If court proceedings ensued, and the insurer applied in time to have the proceedings dismissed because of lateness, the court would have to decide the question in any event.
57It is clear that the amendment to s 73 was intended to have the effect that, where an insurer has not lost the right to reject a late claim, and there has been a s 96(1)(a) determination adverse to a claimant, the matter does not proceed to assessment under s 94. The question is, did it have the effect that, in those circumstances, a claimant will be prevented from having the issue of whether the claimant has a full and satisfactory explanation for the delay (s 73(7)) determined by the court (at least unless the claim falls within one of the exceptional categories in cls 8.11.3 to 8.11.6, cls 14.16.2 - 14.16.7 or 14.16.9 - 14.16.11 of the Guidelines).
58There are strong indications that it was not intended to have that effect:
(1) Section 96(4) provides that a s 96 determination is binding on the parties to the extent that it relates to duties under Pt 4.3: if an adverse determination under s 96(1)(a) prevents a claimant having the matter determined by the court, it is effectively binding on the claimant (though not on the insurer) for all purposes.
(2) Section 73(7) would allow the insurer, but not the claimant, to escape from an adverse s 96(1)(a) determination.
(3) This would not sit well with s 95(1), which asserts that "An assessment under this Part of the issue of liability for a claim is not binding on any party to the assessment" (s 96 is within "this Part", that is, Part 4.4), which conveys that all issues that go to the question of the liability of an insurer to meet a claim should be justiciable in a court.
59The question whether an adverse s 96(1)(a) determination does have the practical effect of putting an end to the general run of late claims depends mainly on the correct construction of s 81.
60The first question is whether "gave notice of the claim under s 72" in s 81(1) only applies where the notice is given within six months after the relevant date, as required by s 72. The primary judge held that it does. In my opinion, it does not, for the following reasons.
61A claim can be subject to rejection by an insurer because of non-compliance with the police accident report requirement (s 70), non-compliance with the time limit for making a claim (s 72) or for non-compliance with requirements as to form (s 74); but in each case, the insurer's right to reject the claim can be lost (ss 70(4), 73(4), 76(2)). If the insurer's right to reject the claim is lost, then plainly the claim is to proceed as if there had been no such non-compliance.
62In my opinion, this means that a notice of a claim may in those circumstances be effective, even if it has any or all of the defects referred to in the previous paragraph. It must still, of course, be identifiable as a "notice", given to the person specified in s 72(2), of "a claim", that is, of a claim as defined in s 3 of the Act: this would require at least adequate identification of the claimant and of the accident in respect of which the claim is made, but not necessarily compliance with ss 70, 72 or 74.
63In those cases, the duty in s 81(1) would apply, at least if the defects were those flowing from s 70 and/or s 74, because there is nothing in s 81(1) to suggest otherwise. The only basis for saying that the duty would not apply if the defect was that in s 72(1) arises from the words "under s 72" in s 81(1). However, in my opinion those words are not apt to limit the duty to cases where the six month limit in s 72(1) has been complied with: this would draw an illogical distinction between defects arising from s 72(1) and those arising from s 70 and s 74; and in any event, the words in question are apt to refer to s 72(2) rather than to the time limit in s 72(1).
64A further compelling reason for this conclusion is that s 72(1) does not need to be complied with when "the claimant provides a full and satisfactory explanation for the delay in making the claim": s 73(1). I do not think s 81(1) discloses any intention that an insurer should have no duty in circumstances where there is a late claim and the requirements of s 73(1) are satisfied.
65This then leads to the second question: if there is a notice given to an insurer, and the insurer does reject it on the ground of delay (or of non-compliance with s 70 or s 74), does the insurer still have the duty referred to in s 81(1)?
66There is nothing in the wording of s 81(1) which suggests otherwise. The only reason for suggesting that the insurer does not have the duty is that it might seem superfluous for the insurer both to reject the claim and also to give notice whether the insurer admits or denies liability for the claim. In those circumstances, clearly the insurer is not admitting any liability (noting that admission of any liability immediately triggers obligations of the insurer to make a reasonable offer of settlement under s 82 and to make medical payments under s 83).
67In my opinion the insurer does have the duty referred to in s 81(1), even in respect of a claim that is defective by reason of non-compliance with s 70, s 72 and/or s 74, and even if the insurer has not lost the right to reject the claim for that reason and/or has actually rejected it. Where, as in this case, the insurer has rejected the claim, and has not otherwise given the written notice required by s 81(1), two alternative analyses are open:
(1) to hold that a written rejection of a claim itself counts as a written notice denying liability for the claim; or
(2) to hold that there has been a breach by the insurer of its duty under s 81(1), and thus a breach of the condition of its licence imposed by s 81(5), albeit that this breach might be treated as de minimis .
68Neither party in these proceedings wholeheartedly embraced the first alternative. Mr Rewell for the respondent submitted that a written rejection of a claim was not a written denial of liability; and Mr Romaniuk for the applicant did not advance any substantial submissions to the contrary. However, where the construction of a statute is in issue, in my opinion, subject to questions of natural justice, the Court is not bound by the submissions of the parties. In this case, in my opinion, there is no issue of natural justice: the issue was raised (see appeal transcript pp 4 and 39), and in any event, the result of this appeal is the same whichever view is taken.
69One consideration against the first alternative is that cl 8.11.1 of the Guidelines refers to denial by an insurer of "the fault of the owner or driver of a motor vehicle in the use or operation of the vehicle ... in its written notice issued in accordance with s 81". However, that cannot govern the interpretation of s 81(1); and in any event, plainly a written notice denying liability may do so for other reasons, such as that there was no "injury" within the definition of injury in the Act (cf Allianz Australia Insurance Limited v GSF Australia Pty Limited [2005] HCA 26; (2005) 221 CLR 568, Zotti v Australian Associated Motor Insurers Limited [2009] NSWCA 323). Denial of liability on that ground would not deny fault, yet would plainly satisfy s 81(1). I see no reason why denial of liability on the basis of a defect in the claim should not also satisfy s 81(1).
70Accordingly, I find the first alternative preferable. But if that were wrong, I would adopt the second alternative, so that in this case, s 81(3) applied and the NRMA is taken to have given notice to the appellant wholly denying liability for the claim. Although this would have the unpalatable consequence that NRMA would be in breach of a condition of its insurer's licence, the reasons I have given satisfy me that the s 81(1) duty did arise in this case.
71The question then is, would this provide a basis on which the applicant would be given a certificate under s 92. It would not fall within cl 8.11.1 of the Guidelines because it is not a denial of fault; but then neither would a denial of liability on the Allianz ground. Nor would it fall within any other part of cl 8.11. If the second alternative is correct, it would fall within cl 14.16.8 as a deemed denial of liability; but if the first alternative is correct, it would not. However, the list in cl 14.16 is not exhaustive, and an actual denial of liability would surely provide as strong a ground for a certificate of exemption as a deemed denial. Accordingly, whichever of the two alternatives is accepted, there were grounds on which a certificate of exemption could have been issued under s 92(1)(b).
72This would not avail the applicant unless the primary judge was correct to hold that s 73(3)(c) extends to cases where a case is referred with a view to obtaining a certificate under s 92(1)(b), not just under s 92(1)(a).
73The Guidelines distinguish different types of reference: see cl 2.1, and chs 9 and 10, which distinguish between applications for a certificate of exemption under s 92(1)(a), and applications for general assessment under s 94, in which, on a preliminary assessment, an assessor may determine that the claim is not suitable for assessment under s 92(1)(b). However, in my opinion, for reasons given by the primary judge, this is not sufficient to restrict s 73(3)(c) to applications of the former type. If there are grounds for determining that a claim is not suitable for assessment, which are not within cl 8.11, and a claimant under an application for general assessment seeks that determination, in my opinion that is a referral for assessment "for a certificate of exemption under Pt 4.4" within s 73(3)(c).
74The final question is whether the primary judge erred in holding that the error of Ms Cassidy in limiting s 73(3)(c) to s 92(1)(a) cases did not vitiate her conclusion.
75I have already held to the effect that the primary judge was in error in par [104] in holding that s 81(1) did not apply to NRMA, because of the lateness of the applicant's claim. In my opinion, this does undermine the primary judge's assessment that there was no reason to remit the matter to Ms Cassidy. There was in my opinion either a deemed denial of liability (satisfying cl 14.16.8) or an actual denial of liability (which should be as good a reason for exemption as a deemed denial, within the general words of cl 14.16).
76On the question whether an exemption certificate should be granted, this would be a matter for Ms Cassidy. However, consistently with what I said before, I note the following:
(1) one of the objectives of the Act is "to provide compensation for compensable injuries sustained in motor accidents": s 5(1)(b);
(2) another is "consistent and stable application of the law" (s 5(2)(c)(iv)), which is best achieved when significant decisions are subject to consideration by the courts;
(3) the circumstance that s 96(1)(a) determinations are said to be binding only for the purposes of duties under Pt 4.3; and
(4) the circumstance that assessments on liability are said to be not binding on any party: s 95(1).
77All of these considerations suggest that the intention of the legislature was that claimants could, as a last resort, have recourse to the courts to determine their rights; that claimants should generally not be shut out of an arguable claim before the courts by reason of a s 96(1)(a) assessment; and accordingly that there could be a reasonable decision in this case to grant the certificate.
78In my opinion, the error of law by Ms Cassidy is sufficient to justify a review under s 69 of the Supreme Court Act 1970; and the appropriate remedy is to quash her decision and remit it to her for further consideration.