IAG Limited t/as NRMA Insurance v Qianxia Lou

Supreme Court of NSW|2019-04-04|Before: Wilson J

Judgment

HER HONOUR: On 4 April 2019 the Court made orders quashing a decision made by the third defendant on 1 August 2018 to refuse the plaintiff's application for exemption pursuant to section 92(1)(b) of the Motor Vehicle Accidents Compensation Act 1999 (NSW) ("the MAC Act"), together with other ancillary orders. Reasons for the decision were reserved until today.
By summons filed on 29 October 2018 the plaintiff sought the following orders: An order in the nature of certiorari, or alternatively a declaration, setting aside or declaring invalid the decision of the third defendant, in her capacity as claims assessor of the State Insurance Regulatory Authority of NSW (SIRA), to refuse the plaintiff's application for an exemption, made pursuant to section 92(1)(b) of the Motor Accidents Compensation Act 1999 (NSW). An order in the nature of prohibition, or alternatively an injunction, preventing the defendants or any of their officers, servants or agents, from acting on or taking any further step in reliance on the decision. An order in the nature of mandamus remitting the matters to the second defendant for the allocation of a different claims assessor to re-determine the plaintiff's exemption application according to law. If necessary, an order or stay in the nature of prohibition or an interlocutory injunction preventing the defendants or any of them or their officers, servants, or agents from acting on or taking any further step in reliance on the decision or in relation to the first defendant's proceedings before SIRA until the final determination of these proceedings or until further order. Costs.
The summons is supported by an affidavit of Ashby Lei Bueno sworn on 22 November 2018; and affidavits of Fiona Truc Thao Kim sworn on 1 April 2019, and 3 April 2019.
Each of the defendants to the summons filed a submitting appearance, save as to any order for costs. A conditional costs order was made in favour of the plaintiff against the first defendant on 4 April 2019, with the first defendant given until 18 April 2019 to make application for any different order sought by her, with submissions in support.

Background to the Application

The plaintiff is the insurer in a personal injury dispute process before the State Insurance Regulatory Authority ("SIRA"). The first defendant was injured in a motor vehicle accident that occurred on 22 August 2014, and subsequently filed a claim for personal injury damages against the insurer with the second defendant, SIRA, pursuant to Part 4.4 of the MAC Act.
In the course of the proceedings for claims assessment and resolution before the Claims Assessor, the third defendant, the plaintiff made an application pursuant to s 92(1)(b) of the MAC Act for an exemption from assessment by SIRA of the first defendant's claim. That provision is in the following terms: 92 Claims exempt from assessment (1) A claim is exempt from assessment under this Part if: (a) […], or (b) a claims assessor has made a preliminary assessment of the claim and has determined (with the approval of the Principal Claims Assessor) that it is not suitable for assessment under this Part.
The plaintiff contended that the claim was "not suitable for assessment" under Part 4.4 because the first defendant had made false or misleading statements as to her injuries and the damage sustained in the motor vehicle accident, and because the matter is factually complex. The first defendant opposed the application for an exemption.
On 1 August 2018 the Claims Assessor refused the plaintiff's application, determining that the matter was suitable for assessment by the Claims and Dispute Resolution Service (generally known as "CARS").
The plaintiff contends that the Assessor's decision reveals jurisdictional errors, and / or errors on the face of the record, or failed to exercise her statutory power. The summons to this Court invokes the Court's supervisory jurisdiction pursuant to s 69 of the Supreme Court Act 1970 (NSW).

The Statutory Scheme

The MAC Act provides for motor accident compensation that does not ordinarily involve curial proceedings. Its operation has been considered in many decisions of this and other courts: Checchia v Insurance Australia Ltd trading as NRMA Insurance (2009) 54 MVR 55 at [7]-[11]; Insurance Australia Ltd trading as NRMA Insurance v Hutton-Potts (2010) 57 MVR 194 at [13]-[29] for example.
As a brief and very general statement, the task of assessing claims under the MAC Act has been diverted to claims assessors, who carry out that function in accordance with SIRA Claims Assessment Guidelines, effective from 1 May 2014. Assessment of damages is done by an assessor at an informal hearing, known as an assessment conference, within CARS.

The Asserted Errors

Two errors are complained of. Firstly, it is argued that the Claims Assessor misunderstood or misconstrued the nature and scope of the power she exercised pursuant to s 92(1)(b) of the MAC Act. Secondly, the plaintiff contends that there was no evidence to support a critical finding made by the Assessor, a finding that significantly contributed to her decision to refuse the plaintiff's application.

Consideration

I propose to deal with the second asserted error first, because it is immediately apparent on considering the evidence before the Court that the plaintiff's contention in this regard is correct.
The error relates to the supposed provision to the insurer of authorities from the first defendant permitting the plaintiff to access her Medicare and Centrelink records. The authorities were necessary to permit the plaintiff to compare the varying accounts of injury alleged to have been given from time to time by the first defendant, relevant to its contention that she had made false and misleading statements about her injuries. It was that contention that, in part, grounded the plaintiff's application pursuant to s 92(1)(b) of the MAC Act.
In the reasons given by the Claims Assessor for the decision she made to refuse the plaintiff's application, she said, […] it would appear that the Claimant gave [the Centrelink] authority to the insurer by correspondence dated 21 July 2017; and I note that the Claimant has already given the authority to the insurer, so the issue about those documents can be dealt with at CARS.
It is clear from the reasons that the Assessor's understanding that the insurer had been provided with the required authorities was a material consideration in reaching her conclusion that "the issue" about them "can be dealt with at CARS".
There was in fact no evidence to support that finding, a finding critical to the decision to refuse the application for exemption.
The first defendant had provided an authority on Medicare which was ineffective, and had never provided a Centrelink authority. The inability of the insurer to access the records necessary to permit it to deal with the first defendant's claim as to injury and damages, was a significant feature relevant to the question of an exemption pursuant to s 92(1)(b). The Claims Assessor found as a fact that the authorities had been made available, when there was no evidence to support that finding.
The "making of a finding of fact which is a critical step in the ultimate conclusion reached and for which there is no evidential support may constitute jurisdictional error": SZMWQ v Minister for Immigration and Citizenship (2010) 187 FCR 109; [2010] FCAFC 97 at [125].
This error of itself is sufficient to quash the decision of the Claims Assessor.
On that basis I propose to deal quickly with the asserted first error.
In her reasons for her decision to refuse the s 92(1)(b) exemption application, the Claims Assessor held that the type of issue relied upon by the plaintiff as supporting the exemption was "regularly ventilated" in CARS assessments, or was "a common issue" in such assessments, and "can be" dealt with in the assessment process.
However, the frequency with which a particular type of issue is ventilated and dealt with in the CARS assessment process is irrelevant to determining whether a claim is "not suitable for assessment" under Part 4.4 of the MAC Act, that being the language used in s 92(1)(b), and the matter to be determined by the decision maker. It was not a question of whether the issues raised by the insurer were commonly dealt with, and thus could be dealt with, by assessment; the question was whether the issues made the matter not suitable for assessment within CARS.
In IAG Limited T/as NRMA Insurance v Khaled [2019] NSWSC 320 Bellew J dealt with the same issue, concluding at [27]-[28], as follows: Bearing in mind the terms of section 92(1)(b) of the Act, the question that the Assessor was required to ask herself was whether the claim was not suitable for assessment in CARS. In accordance with general principles of statutory interpretation, the word "suitable" is to be given its natural and ordinary meaning. The Macquarie Dictionary defines the word "suitable" as meaning: "Such as to suit; appropriate, fitting, becoming." In my view, it is evident from the Assessor's reasons that she did not turn her mind to the question whether the matter was not suitable for assessment in CARS. There is an obvious, and indeed material, difference between whether or not a matter can be dealt with in the CARS process (in the sense of being capable of being dealt with in that way), and whether it is not suitable to be dealt with in that way. In that sense, capability is not the same as suitability. The terms of section 92(1)(b) required the Assessor to consider and focus upon the latter question. It is evident from the passages of her reasons to which I have referred that the Assessor failed in that regard and, in fact, concentrated on the former. In doing so, I am satisfied that the Assessor failed to ask herself the correct question and thus erred.
It is clear that the Assessor did not consider the potential limitations of the assessment process where there were allegations of false and misleading statements by the first defendant as to her injuries and damages, and where the plaintiff had been denied access to information material to its allegation, and thus faced a significant evidentiary difficulty, a difficulty that would not apply to court proceedings.
In considering the operation of that provision, Chapter 14 of the Claims Assessment Guidelines deals with the determination of whether matters may be unsuitable for assessment within CARS, and was relevant to the Assessor's task.
Clause 14.11 of the Guidelines provides that for the purposes of section 92(1)(b) of the MAC Act, an assessor may make a determination that a claim is not suitable for assessment. Clause 14.16 is in the following terms: In determining whether a claim is not suitable for assessment an assessor and the principal claims assessor shall have regard to the circumstances of the claim as at the time of consideration of the claim.
Clause 14.16 refers to other matters, including that raised by the insurer here, where there is an allegation that a claimant has made a false or misleading statement in a material particular in relation to the injuries, loss or damage sustained in the accident giving rise to the claim (14.16.11).
I accept the plaintiff's contention that the Assessor failed to ask herself the correct question in determining its exemption application, and thus fell into error.
For these reasons, the decision of the Assessor was quashed, and the matter remitted to the second defendant, for determination by a different claims assessor.

Costs

Having made those orders the plaintiff sought an order for costs against the first defendant. As I have noted, the first, second, and third defendants all filed appearances submitting to any orders of the Court, save as to costs.
The Court was referred to a decision of the Court of Appeal in Kisimul Holdings Pty Ltd v Clear Position Pty Ltd (No 2) (2014) 86 NSWLR 645 where it was observed that the prima facie position under Rule 42.1 of the Uniform Civil Procedure Rules 2005 (NSW) is that costs follow the event.
Conditional orders were made in favour of the plaintiff, on that basis. Any request for a different order by the first defendant will be dealt with on the papers.

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: 08 April 2019

Motor Vehicle Accidents Compensation Act 1999(NSW)

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