Insurance Australia Group Ltd t/as NRMA Insurance v Ilsley

Judgment

1. HIS HONOUR: By an amended summons filed 27 April 2018, Insurance Australia Group Ltd (trading as NRMA Insurance) ("the plaintiff") sought an order in the nature of certiorari or alternatively declaration setting aside or declaring invalid a decision of a Proper Officer of the State Insurance Regulatory Authority made pursuant to s 62(1)(a) and (1A) of the Motor Accidents Compensation Act 1999 (NSW) ("the Act") and the decision of the Claims Assessor made pursuant to s 62(1)(b) of that Act.
2. The Proper Officer and the Claims Assessor were the third and fourth defendants in those proceedings. Ms Patricia Ilsley was the first defendant in the proceedings. She was involved in a motor vehicle accident falling within the meaning of that expression within s 3 of the Act and claimed that she had suffered physical and psychiatric injuries cause by a motor vehicle accident. She claimed damages for non-economic loss as contemplated by Pt 5.3 of the Act.
3. In Insurance Australia Group Ltd t/as NRMA Insurance v Ilsley [2019] NSWSC 500, in respect of the claim brought under the amended summons, the Court made orders in the following terms: 1. The decision of the third defendant dated 11 January 2018 and the decision of the fourth defendant dated 6 April 2018 is quashed. 2. The matter will be remitted to a Proper Officer for consideration under s 62(1)(a) of the Act but no remitter will be made to the Claims Assessor. 3. The first defendant pay the plaintiff's costs of the proceedings.
4. By an email dated 7 May 2019, the first defendant sought an additional order, which was not opposed, for the granting of a certificate under the Suitors' Fund pursuant to the Suitors' Fund Act 1951 (NSW) ("the SF Act"). The first defendant submitted: If the Plaintiff's Summons is successful, the First Defendant hereby makes an application that in addition to the usual order as to costs, there should be ordered a certificate under the Suitors' Fund Act 1951 (NSW) (if eligible).
5. In support of this application, the first defendant provided submissions dated 3 May 2019 and further submissions dated 13 May 2019.

THE SUITORS' FUND ACT

1. Section s 6(1) of the SF Act provides: 6 Costs of certain appeals (1) If an appeal against the decision of a court: (a) to the Supreme Court on a question of law or fact… succeeds, the Supreme Court may, on application, grant to the respondent to the appeal or to any one or more of several respondents to the appeal an indemnity certificate in respect of the appeal.
2. Section 2(1) of the SF Act provides: 2 Definitions (1) In this Act, unless the context or subject matter otherwise indicates or requires: Appeal includes any motion for a new trial and any proceeding in the nature of an appeal. … Court includes such tribunals or other bodies as are prescribed.
3. Further, s 6(2A) provides: (2A) The maximum amount payable from the Fund for any one appeal is: (a) $20,000 in the case of an appeal to the High Court, or (b) $10,000 in the case of any other appeal.
4. Thus, the maximum amount payable in this case is $10,000.

ISSUES

1. The key issues which arise, having regard to the statutory scheme, are as follows: 1. Whether the first defendant is eligible to be granted an indemnity certificate under the SF Act. This issue involves determination of the following sub-issues: 1. Whether a successful claim for judicial review of an assessment made under the regime of the Act is "an appeal" for the purpose of the SF Act. 2. Whether each of the Proper Officer and the Claims Assessor are, for the purposes of the SF Act, "a court". 1. Whether, if the first defendant is eligible, an indemnity certificate under the SF Act should be issued.

SUBMISSIONS OF THE FIRST DEFENDANT

1. The first defendant firstly listed several motor accident judicial review cases in which a certificate under the Suitors' Fund was issued to an unsuccessful individual litigant in similar circumstances to the current matter. Those cases were: 1. Allianz Australia Insurance Ltd v Ward (2010) 79 NSWLR 657; [2010] NSWSC 720 ("Ward") at [82] and [83] (per Hidden J); 2. McHenry v Insurance Australia Limited t/as NRMA [2019] NSWSC 68; [2019] NSWSC 68; 3. Rodger v De Gelder (2011) 80 NSWLR 594; [2011] NSWCA 97 ("Rodger No 1") at [102] (per Beazley, McColI and Macfarlan JJA) and, Rodger v De Gelder (No 2) [2011] NSWCA 235 (per Beazley, McColI and Macfarlan JJA); 4. GIO General Ltd v Smith (No 2) [2011] NSWSC 998 at [9], [13] and [14] (per Hoeben J); 5. Insurance Australia Ltd t/as NRMA Insurance v Banos (No 2) [2013] NSWSC 1668 ("Banos") (per Campbell J); 6. IAG Ltd t/as NRMA Insurance v Riley (2013) 64 MVR 191; [2013] NSWSC 684 (per Davies J); 7. Allianz Australia Insurance Ltd v Tarabay (2013) 62 MVR 537; [2013] NSWSC 141 ("Tarabay") (per Rothman J); and 8. CIC Allianz Australia Ltd v McDonald (2012) 61 MVR 382; [2012] NSWSC 887 ("CIC Allianz") (per Hidden J).
2. The first defendant submitted that the decision-makers, the Proper Officer and the Claims Assessor, in each instance, should be properly regarded as a quasi-judicial tribunal and, in essence a "court" within the definition of that word in s 2(1) of the SF Act. The first defendant contended the regulations have not prescribed a tribunal or other body as a court.
3. Reference was made to Australian Postal Commission v Dao (No 2) (1986) 6 NSWLR 497 ("Dao") at 513-514, where Kirby P said of the Equal Opportunity Tribunal: It would seem unlikely, given the history and the purpose of the Suitors' Fund Act 1951, the increase since its enactment in the number and kind of statutory tribunals and the relationship established between the Tribunal and the Supreme Court, that appeals should lie on questions of law but not attract the protection of the Suitors' Fund Act because the Tribunal is not a court
4. The first defendant further referred to Dao at 516, where McHugh JA stated, after observing the liberal construction by courts of the word "appeal" in the SF Act, the following: The word 'court' should likewise be given a liberal and beneficial construction to accord with the purpose and policy of the Act. The correct approach is for the Court to ask itself whether, bearing in mind the general purpose of the Suitors' Fund Act, Parliament must be taken to have intended that the Tribunal should qualify as a court? I think that the question should be answered in the affirmative. Whether the Tribunal is a 'court' for purposes other than the Act is beside the point.
5. The first defendant then referenced decisions in which Tribunals had been held, for the purposes of the SF Act, to be courts. It was contended that these decisions were consistent with the beneficial interpretation of the SF Act mentioned above. The Tribunals held to be courts, and the respective decisions were listed as follows: 1. The Equal Opportunity Tribunal: Dao; 2. The Government and Related Employees Appeal Tribunal: Reid v Sydney City Council (1995) 35 NSWLR 719 and Commissioner of Corrective Services v Government and Related Employees Appeal Tribunal (No 2) [2004] NSWCA 337; 3. The Full Bench of the Industrial Relations Commission: Moama Bowling Club Ltd v Armstrong (No 2) (1995) 64 IR 264 (application under s 6(1A)); 4. The Medical Disciplinary Tribunal and its successors: Qidwai v Brown (1984) Aust Torts Reports 80-553; [1984] 1 NSWLR 100; Walton v McBride (1995) 36 NSWLR 440; Macarthur v Walton [1995] NSWCA 264; and Health Care Complaints Commission v A Medical Practitioner [2001] NSWCA 158; 5. The Consumer Traders and Tenancy Tribunal: Krslovic Homes Pty Ltd v Sparkes [2004] NSWSC 374; Rural and General Insurance Ltd v Fair Trading Tribunal [2004] NSWSC 396; and Burringbar Real Estate Centre Pty Ltd v Ryder [2008] NSWSC 891; 6. Strata Titles Board: Anderson Stuart v Treleaven [2000] NSWSC 536; 7. The Administrative Decisions Tribunal: Trust Company of Australia Ltd v Skiwing Pty Ltd (2006) 68 NSWLR 366; [2006] NSWCA 387 at [74]; and 8. The Registrar of the Supreme Court: Tisdale v Ballanday Pty Ltd [2009] NSWSC 56 at 158.
6. In further submissions, the first defendant specifically addressed the question as to why the Claims Assessor should be found to be a "court" for the purposes of the SF Act. In this respect, the first defendant submitted: … they are legal practitioners undertaking the work formerly by judges of the court. They make important binding decisions on the assessment of damages (section 94 of the Motor Accidents Compensation Act 1999 (NSW) ("Act")). They also make important decisions along the way, such as exemption from CARS (section 92(1)(b)) and further referrals to medical assessors (section 62(1)(b)). They hold non-curial hearings (assessment conferences) and act in a quasi-judicial capacity resolving inter-parties disputes. They must act judicially and afford persons interested procedural fairness in the making of statutory decisions. It is terminology derived from Ridge v Baldwin [1964] AC. 40. Accordingly, they are courts for the purposes of section 2 of the SF Act. There are no cases in the Supreme Court of in the Court of Appeal (of which we are aware) where a claims assessor's decision has been held not to be a court for Suitors Fund purposes.
7. The first defendant also listed four decisions where this Court had made a suitors' fund order in respect of challenges to a Claims Assessor, as follows: 1. Ward at [82] and [83]; 2. Banos at [7]; 3. Tarabay at [75]; and 4. CIC Allianz at [33] and [34] (per Hidden J).
8. The first defendant then turned to why the Proper Officer should be found to be a "Tribunal" for the purposes of the definition of a "court" in s 2 of the SF Act. It was contended that there were a number of Court of Appeal decisions holding that decisions of Proper Officers were decisions of a court for "suitors' fund purposes". The defendant referred to, in this respect: 1. Rodger No 1 at [102]; and 2. Meeuwissen v Boden (2010) 78 NSWLR 143; [2010] NSWCA 253 at [38] (per Beazley and Basten JJA and Sackville AJA).
9. Additionally, the first defendant drew attention to Insurance Australia Ltd t/as NRMA Insurance v Scott (2016) 92 NSWLR 741; [2016] NSWCA 138 at [123], where the Court of Appeal issued a suitors' fund certificate in respect of a decision of a SIRA "case manager" in relation to a decision referring a matter to a medical assessor under s 60 of the Act.
10. The first defendant did, however, concede that there was authority to the contrary. In this respect, the first defendant noted: In AAI Limited v Fitzpatrick (No 2) [2015] NSWSC 1272 (Schmidt J), the Court held (at [29]) that the decisions of a SIRA medical assessor and a proper officer were not decisions of a court for SF Act purposes and a certificate should not issue. [Original emphasis.]
11. The first defendant contended that this contrary authority did not extend to claims assessors (who undertake a quasi-judicial role in the scheme).

CONSIDERATION

1. The first defendant is, in my view, eligible to be granted an indemnity certificate under the SF Act.
2. An "appeal" is defined in the SF Act to include any motion for a new trial and any proceedings in the nature of an appeal. The definition is inconclusive and given the remedial nature of the SF Act (see Dao at 515) the definition, so far as it goes to the scope of the Act, should be read beneficially. As McHugh J observed in Dao, an appeal under the SF Act incorporated a writ of prohibition to correct an error of law in a court of petty sessions. In my view, by analogy of reasoning, the amended summons seeking orders in the nature of certiorari to correct legal error is in relevantly no different position.
3. The second issue of eligibility concerned the question of whether the Claims Assessor or the Proper Officer was a "court" for the purposes of the SF Act.
4. A "court" is defined under s 2(1) of the SF Act as including "tribunals or other bodies as are prescribed". No such entities have been prescribed under regulations to the SF Act.
5. As McHugh J found in Dao (at 516), the word "court" should be given a liberal and beneficial constitution in accord with the purposes and policy of the Act. The question to be asked is whether, bearing in mind the purposes of the SF Act, Parliament should be taken to have intended that the Claims Assessor or Proper Officer should qualify as a court?
6. In the case of the Claims Assessor in the present matter, the decision made under s 62(1)(b) of the Act was quashed. I accept the submissions of the first defendant that by making a determination under s 62(1)(b), the Claims Assessor was a court for the purposes of the SF Act.
7. That conclusion is consistent with authority of this Court (in Ward at [82], CIC Allianz at [82] and Banos at [9]).
8. The first defendant referred to functions of claims assessors of a different character to those undertaken by the Claims Assessor in this case such as binding decisions on the assessment of damages under s 94(1) of the Act. The exercise of that power may more readily be attributed to the attributes of a court for the purposes of the SF Act. For example, s 94(1)(b) speaks of the Claims Assessor making an assessment of an amount of damages for liability "being the amount of damages that a court would be likely to award" (see Banos at [7]). Nonetheless, the Claims Assessor makes significant decisions bearing upon or preliminary to the exercise of that function including the determination of further referral to medical assessors purpose to s 62(1)(b). Consistent with the approach of the Claims Assessor in this case, the determination of applications under s 62(1)(b) is adjudicative in nature. The Claims Assessor must act judicially, in that respect, and afford interested persons procedural fairness.
9. The Court made a discrete determination with respect to the decision of the fourth defendant. Even though the remitter order was to the third defendant, the Court left open the prospect of further processes under s 62(1)(b). In those circumstances, it is unnecessary to resolve the question of eligibility with respect to the Proper Officer although there is some substance to the first defendant's contentions in that respect (which will require consideration on some other occasion). The decision in AAI Ltd v Fitzpatrick (No 2) [2015] NSWSC 1272 at [29] concerns a Proper Officer. Despite the mention of Ward, there is no analysis of the position of a Claims Assessor per se.
10. Finally, I accept the submission of the first defendant that it was not unreasonable for her to have defended the judicial review proceeding brought by the plaintiff and that an indemnity certificate under the SF Act should be issued to ameliorate hardship.

ORDERS

1. The Court orders the first defendant shall be granted an indemnity certificate under the Suitors' Fund Act 1951 (NSW).

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