Did the appellant comply with s 108(1)?
56 Mr Semmler QC, who, together with Mr Goodridge, appeared for the appellant, drew attention to that part of s 96(3) that, in effect, requires a certificate relating to the assessment of a dispute under s 96 to be issued "in accordance with the relevant provisions of this Division relating to the assessment of claims".
57 The reference to "this Division" in s 96(3) is a reference to Div 2 of Pt 4.4 of the Act. The relevant provisions of Div 2 are contained in s 94. Section 94(4) provides that, as soon as practicable, the assessor must, after an assessment, issue the insurer and the claimant with a certificate as to the assessment. Section 94(5) provides that the assessor is to attach a brief statement to the certificate, setting out the assessor's reasons for the assessment. Section 94(6) provides for replacement certificates or statements to correct obvious errors. These provisions appear to be the "relevant provisions" contemplated by s 96(3). In other words, s 96(3) sets out the procedural machinery relating to the issuing of a s 96(3) certificate.
58 Mr Semmler submitted that, on this basis, the certificate was issued "under" s 94 and it was a certificate that duly complied with s 108(1)(b). He submitted: "[t]he certificate is issued under s 94 but it is an assessment under s 96".
59 In construing s 108, due regard must be had to the nature of the pre-conditions required to be fulfilled before court proceedings in respect of a claim can be commenced. On a literal construction of the section, the pre-conditions are the issuing of a certificate under s 92 that the claim in question is exempt from assessment, or a certificate under s 94 that the claim has been assessed. These provisions reflect a statutory scheme whereby all claims, save those that are specifically held to be exempt from assessment under s 92, are to be assessed under s 94 before court proceedings can be commenced.
60 The notion that all claims must be assessed, save those that are expressly exempted, is consistent with the object of the Act set out in s 5(1)(b) which is "to encourage the early resolution of compensation claims". I understand "early resolution" in this sense to mean resolution as soon as reasonably possible, and that, ordinarily, would mean prior to the commencement of court proceedings.
61 The construction advanced by the appellant is based on the proposition that a certificate concerning a dispute of the kind described in s 96(1) is to be regarded as a certificate issued in respect of a claim under s 94 because the procedural machinery relating to the issuing of a s 96 certificate is to be found in ss 94(4), (5) and (6). On this argument, the s 96 certificate is "a certificate in respect of the claim under s 94 (Assessment of claims)" within the meaning of s 108(1)(b).
62 If this argument were to be correct, a claimant would be entitled to commence court proceedings in respect of a claim without having to go through the assessment procedure set out in Div 2 of Pt 4.4. There is no reason in policy for such a construction.
63 Section 6(1) of the Act provides that "[I]n the interpretation of a provision of this Act …, a construction that would promote the objects of this Act or the provision is to be preferred to a construction that would not promote those objects". The appellant's argument on this issue, in my view, is contrary to the objects and scheme of the legislation.
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.
68 The assessor was asked to resolve a s 96(1)(a) issue and not a s 94 issue. He did not attempt to resolve a s 94 issue. I would add that the appellant did not argue before the assessor that the insurer had lost its right to challenge the claim on the ground of delay. For this reason, the assessor did not deal with this issue either.
69 A s 94 certificate, by s 94(1), concerns an assessment of the issue of liability for the claim (unless the insurer has accepted liability) and the amount of damages for that liability. Such an assessment must specify an amount of damages. The certificate issued to the appellant made no mention of these matters. This was hardly surprising because the assessment arose from an application by the insurer on CARS Form 5A, Application for Special Assessment, a form that described itself as:
"…an application for a special assessment by an assessor from the Claims Assessment and Resolution Service (CARS) to determine specified procedural disputes under section 96 of the Motor Accidents Compensation Act."
The findings of the assessment recorded in the certificate were that "[a] late claim may not be made in accordance with section 73" and "[n]o costs are assessed in favour of the claimant".