Insurance Australia Limited t/as NRMA Insurance v Banos

Judgment 1I gave judgment in this matter on 17th October 2013 (Insurance Australia Limited t/as NRMA Insurance v Banos [2013] NSWSC 1519). The effect of the orders I made on that occasion was to set aside a decision of the second defendant, a claims assessor of the Motor Accidents Claims Assessment and Resolution Service declining to grant a discretionary exemption on the application of the plaintiff insurer pursuant to s. 92(1)(b) Motor Accidents Compensation Act 1999 (NSW) (the Compensation Act), and to remit the matter to the Principal Claims Assessor to make arrangements for a different assessor to determine the question according to law. The first defendant, who I will refer to as the claimant, was ordered to pay the plaintiff's costs of, and incidental, to the proceedings on the ordinary basis after they have been agreed or assessed. 2The claimant makes an application for a certificate under the Suitors Fund Act 1951 (NSW) (the Act), s6(1). That section provides, relevantly, the following: (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. 3Two questions arise for determination. The first is whether the Claims Assessment and Resolution Service is "a court" for the purposes of the Act. The second is whether a successful claim for judicial review of an assessment made under that regime is "an appeal" for the purpose of the Act. 4With respect to the first question, at first blush I confess to having had some doubt about the proposition that the Claims Assessment and Resolution Service, or a claims assessor operating under that regime, could constitute "a court" in the sense envisaged by the Act. However MA Campbell of counsel, who appeared for the claimant, in her written submissions directed the Court's attention to several decisions dealing with the question of applications under s 6(1) of the Act in the context of judicial review of decisions of claims assessors. In Allianz v Ward [2010] NSWSC 720 at [82] Hidden J held that a claims assessor exercising jurisdiction under the Compensation Act constitutes a "court" for the purposes of s 6(1) of the Act. In support of this proposition his Honour cited Australian Postal Commission v Dao (No 2) (1986) 6 NSWLR 497, per Kirby P at 511-14 and McHugh JA at 515-6. This approach was followed by Hoeben J (as his Honour then was) in GIO General Ltd v Smith; Insurance Australia Ltd t/as NRMA Insurance v Smith (No 2) [2011] NSWSC 998, and, I presume, by Rothman J in Allianz Australia v Tarabay [2013] NSWSC 141; 62 MVR 537. The apparently contrary decision of Rein J in QBE Insurance Australia v Henderson [2012] NSWSC 1607 was concerned with judicial review of decisions of the Medical Assessment Service, and for that reason can be put to one side as not determinative of the present question. 5Basten JA in Campbelltown City Council v Vegan [2006] NSWCA 284; NSWLR 372 at 394 [108] pointed out that an administrative tribunal may be a court for one purpose even if not for another. By reference to DAO his Honour said: Thus, a number of State tribunals have been held to be "courts" for the purposes of the Suitors' Fund Act 1951 (NSW) [citations omitted]. 6Consistently with this approach, several decisions of this Court have held the Consumer Trader and Tenancy Tribunal to be a court for the purposes of the Act: Krslovic Homes v Sparkes [2004] NSWSC 374; Rural and General Insurance v Fair Trading Tribunal [2004] NSWSC 396; Burringbar Real Estate Centre Pty Ltd v Ryder [2008] NSWSC 891. 7The present case, as I have said, was concerned with an application for a discretionary exemption from an assessment of damages by the claims assessor, but it is relevant to point out that in assessing damages payable for a claim, as the words in parentheses in s94(1)(b) of the Compensation Act make clear, the claims assessor is required to determine the amount a court would be likely to award by applying the common law of damages as modified by the provisions of Chapter 5 of the Compensation Act (see also ss122 and 123). And, if the conditions specified in s95(2) are satisfied, such an assessment provides a final resolution of the dispute as to damages. These considerations favour treating the Claims Assessment and Resolution Service as a court for the purpose of the Act. 8This finality point is heavily qualified. The claimant can reject the assessment and apply for a hearing de novo in the District Court. That qualified finality might be a strong pointer to CARS not being a court for this purpose. 9Notwithstanding my initial doubts about it, as I find the reasoning in the decisions of other Judges of the Common Law Division referred to at [4] persuasive, and also for reasons of judicial comity, I propose to take the same approach. 10Turning now to the second question arising for consideration, I consider the following observations of McHugh JA (as his Honour then was) in Dao (No 2) from the passage referred to above to be apposite: Remedial legislation should be given a beneficial construction. In accord with that philosophy, the Supreme Court has given a liberal construction to the word "appeal" in the Suitors' Fund Act. Thus an application for a writ of prohibition to correct an error of law in a court of petty sessions is an "appeal" for the purpose of the Act: Ex parte Parsons; Re Suitors' Fund Act (1952) 69 WN (NSW) 380. So is a case stated by a court of Quarter Sessions to the Court of Criminal Appeal on a question of law arising out of a conviction in a court of petty sessions (Ex parte Neville; Re Suitors' Fund Act 1951-1960 (1966) 85 WN (Pt 1) (NSW) 372) or a case stated by an arbitrator to the Supreme Court: Mir Bros Developments Pty Ltd v Atlantic Constructions Pty Ltd (1985) 1 NSWLR 491. Even a reference from the Prothonotary, exercising delegated jurisdiction, to a judge in chambers is an "appeal" for the purpose of the Suitors' Fund Act: Onions v Government Insurance Office of New South Wales (1956) 73 WN (NSW) 270. 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 that question should be answered in the affirmative. Whether the Tribunal is a "court" for purposes other than the Act is beside the point. What matters for the purpose of the Suitors' Fund Act is that a body which determines rights and is presided over by a judge of the District Court has made an error of law which has been corrected on appeal to the Supreme Court of New South Wales. To grant a certificate, at the request of the respondents, is to promote the purpose of the Act. To hold that the Tribunal is a "court" for the purpose of the Act contradicts no express or implied provision of the Act. The Court should, therefore, declare that the respondents are entitled to a certificate under the Act. 11By parity of reasoning, I consider that a beneficial construction of the Act favours the interpretation that the present proceedings are an appeal, as contended by the claimant. It is notable, as his Honour pointed out, that an application for a writ of prohibition to correct an error of law was regarded as an appeal in Ex parte Parsons; Re Suitors' Fund Act (1952) 69 WN (NSW) 380. To my mind there is no reason to distinguish prohibition from an order in the nature of certiorari. Both may be concerned relevantly with the correction of legal error. There is authority supporting the proposition that an application for an order in the nature of a writ of mandamus to correct an error of law of a lower court is an appeal for the purposes of the Act: Director General of Fair Trading v O'Shane (unreported, NSWSC, Graham AJ, 22 August 1997). 12As the High Court of Australia said in Wingfoot Australia Partners Pty Ltd & Anor v Eyup Kocak & Ors [2013] HCA 43 at [25]: The function of an order in the nature of certiorari is to remove the legal consequences or purported legal consequences of an exercise or purported exercise of power. 13These considerations in my view make the conclusion I have reached on this second question irresistible. In my judgment the present case is directly covered by what McHugh JA said in Dao (No 2). 14For these reasons, I amend the orders pronounced on 17th October 2013 to add the following order: (6)I grant the first defendant a certificate under s 6 of the Suitors' Fund Act 1951 (NSW).