INSURANCE AUSTRALIA LIMITED (trading as NRMA) v James Hulse

Supreme Court of NSW|2023-09-11

Solicitors: Spark Helmore Lawyers (Plaintiff) Greg Walsh & Co (First defendant) Crown Solicitor's Office (NSW) (Second and third defendants) File Number(s): 2023/080442

JUDGMENT

This is a judicial review concerning whether statutory benefits are payable pursuant to Part 7, s 3.37 of the Motor Accidents Compensation Act 1999 (NSW) involving a serious driving offence.
The plaintiff is INSURANCE AUSTRALIA LIMITED (trading as NRMA) ('the insurer'). The first defendant is James Hulse. The second defendant is Belinda Cassidy in her capacity as a Member appointed by the Minister under s 9 of the Personal Injury Commission Act 2020 (NSW). The third defendant is The President of the Personal Injury Commission ('PIC') of New South Wales. The second and third defendants made submitting appearances. The insurer was represented by M. Allars SC of counsel. The first defendant was represented by J. Gumbert and M. Algie of counsel. The parties relied upon a joint court book marked Exhibit A ('Ex A').

Factual background

On 11 September 2020, the first defendant was seriously injured in a motor accident at Kingsgrove while riding his motorcycle.
The insurer is the third-party insurer of the other vehicle, which was at fault in the collision.
On 22 October 2020, NSW Police issued to the insurer a police report relating to the accident.
On 23 December 2020 the insurer accepted liability for the first defendant's claim.
On or about after 11 September 2020, the first defendant was charged with an offence of having a prescribed illicit drug or drugs in his blood while driving a motor vehicle, under s 111(1)(a) of the Road Transport Act 2013 (NSW).
The first defendant entered a plea of guilty to the offence.
On 15 June 2021 the Local Court found the first defendant guilty, but without proceeding to a conviction the matter was dismissed pursuant to s 10(1)(a) of the Crimes (Sentencing Procedure) Act 1999 (NSW).
The first defendant lodged a claim for statutory benefits under Part 3 of the Motor Accident Injuries Act 2017 (NSW).
On 5 November 2021 Brooksight Investigations provided to the insurer an investigation report.
On 2 September 2022 the insurer sent the first defendant a further liability notice, denying liability on the basis that the first defendant had been charged with or convicted of a serious driving offence related to the accident. The insurer ceased to pay the first defendant statutory benefits.
By email sent on 12 September 2022 the first defendant sought internal review of that decision.
On 13 September 2022, the insurer made an internal review decision affirming its decision denying liability and issued a certificate of determination affirming its original decision.
By letter dated 20 September 2022, the insurer sent the first defendant a further liability notice (in relation to the first defendant's claim for damages, which was separate to the claim for statutory benefits).
On 7 October 2022, the first defendant lodged with the PIC an application for insurance claim assessment, together with written submissions.
The referred matter was allocated to the second defendant Ms Belinda Cassidy (the Member) for determination.
On 1 November 2022 the insurer lodged a reply, with attached written submissions, email correspondence dated 12 September 2022 with the first defendant, and an internal review certificate of determination with reasons dated 13 September 2022.
On 8 November 2022 a preliminary conference in the PIC was held by phone, where the Member concluded that the matter was suitable to be determined on the papers.
On 8 November 2022 the Local Court issued an Advice of Court Result in R v James Sinclair Hulse ('the first defendant'), which included the following description of an order made by the Court on 15 June 2021: "The offender, JAMES SINCLAIR HULSE is found guilty but without proceeding to conviction the matter is dismissed pursuant to section 10(1)(a) of the Crimes (Sentencing Procedure) Act 1999."
On 22 November 2022 the first defendant provided submissions to the PIC.
On 25 November 2022 at the invitation of the Member, the insurer lodged further submissions with the PIC.
On 14 December 2022, the Member issued the certificate with the reasons for the decision. She relevantly stated: "The first defendant had no conviction for [the] serious driving offence (Decision [63]); Because the magistrate dismissed the charge under s 10(1)(a) of the [Crimes (Sentencing Procedure) Act 1999 (NSW)], there was "effectively no charge in existence" (Decision [52]). The effect of the dismissal was "as if there had never been a charge at all other than the 'historical fact' of a charge being laid recorded somewhere in the police files and on the court's records" (Decision [52]); The charge was "dismissed before Mr Hulse was convicted and that results in Mr Hulse being eligible for the payment of statutory benefits" (Decision [54]); The first defendant "is not charged with a serious driving offence because the charges have been dismissed and there are no proceedings pending against him" (Decision [63]). Because the charge was dismissed, "it is as if they were never laid" (Decision [64]). As a consequence of (i) to (vi), the first defendant was entitled to the continued payment of statutory benefits (Decision [64])."

Judicial Review - Legal Principles

In considering the exercise of the supervisory jurisdiction in judicial review, an overriding principle is that administrative decision makers are entitled to a beneficial construction. The decision maker's reasons should not be subject to minute scrutiny of unhappy phrasing. Their decisions must be read fairly and as a whole: Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259, 271-272, 291-292
The High Court has held that for an error to be jurisdictional, it needs to be made in a way that affects the exercise of power: Hossain v Minister for Immigration and Protection [2018] HCA 34; 264 CLR 123 at [30] - [31], [71]-[72]; MZAPC v Minister for Immigration and Border Protection [2021] HCA 17; 273 CLR 506 at [51]. The error must be material, in the sense that it could have changed the result of the exercise of power: Hossain v Minister for Immigration and Protection [2018] HCA 34; 264 CLR 123 at [30] - [31], [71]-[72]; MZAPC v Minister for Immigration and Border Protection [2021] HCA 17; 273 CLR 506 at [51].
In Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; 194 CLR 355 the following principles of statutory construction were set out by the High Court: "[69] The primary object of statutory construction is to construe the relevant provision so that it is consistent with the language and purpose of all the provisions of the statute. . . The meaning of the provision must be determined 'by reference to the language of the instrument viewed as a whole'… In Commissioner for Railways (NSW) v Agalianos, Dixon CJ pointed out that "the context, the general purpose and policy of a provision and its consistency and fairness are surer guides to its meaning than the logic with which it is constructed". Thus, the process of construction must always begin by examining the context of the provision that is being construed… [70] A legislative instrument must be construed on the prima facie basis that its provisions are intended to give effect to harmonious goals. Where conflict appears to arise from the language of particular provisions, the conflict must be alleviated, so far as possible, by adjusting the meaning of the competing provisions to achieve that result which will best give effect to the purpose and language of those provisions while maintaining the unity of all the statutory provisions… Reconciling conflicting provisions will often require the court 'to determine which is the leading provision and which the subordinate provision, and which must give way to the other' . . . Only by determining the hierarchy of the provisions will it be possible in many cases to give each provision the meaning which best gives effect to its purpose and language while maintaining the unity of the statutory scheme. [71] Furthermore, a court construing a statutory provision must strive to give meaning to every word of the provision…" [Emphasis added]
In Military Rehabilitation and Compensation Commission v May [2016] HCA 19; 257 CLR 468 at [10], the High Court said the "question of construction is determined by reference to the text, context and purpose of the Act".
Issues of context and purpose are important when construing legislation. In SZTAL v Minister for Immigration and Border Protection [2017] HCA 34; 262 CLR 362 at [14], the High Court stated: "The starting point for the ascertainment of the meaning of a statutory provision is the text of the statute whilst, at the same time, regard is had to its context and purpose. Context should be regarded at this first stage and not at some later stage and it should be regarded in its widest sense. This is not to deny the importance of the natural and ordinary meaning of a word, namely how it is ordinarily understood in discourse, to the process of construction. Considerations of context and purpose simply recognise that, understood in its statutory, historical or other context, some other meaning of a word may be suggested, and so too, if its ordinary meaning is not consistent with the statutory purpose, that meaning must be rejected."
In R v A2 [2019] HCA 35; 269 CLR 507 at [32] - [33], Kiefel CJ and Keane J said: "[32] The method to be applied in construing a statute to ascertain the intended meaning of the words used is well settled. It commences with a consideration of the words of the provision itself, but it does not end there. A literal approach to construction, which requires the courts to obey the ordinary meaning or usage of the words of a provision, even if the result is improbable, has long been eschewed by this Court. It is now accepted that even words having an apparently clear ordinary or grammatical meaning may be ascribed a different legal meaning after the process of construction is complete. This is because consideration of the context for the provision may point to factors that tend against the ordinary usage of the words of the provision. [33] Consideration of the context for the provision is undertaken at the first stage of the process of construction. Context is to be understood in its widest sense. It includes surrounding statutory provisions, what may be drawn from other aspects of the statute and the statute as a whole. It extends to the mischief which it may be seen that the statute is intended to remedy. 'Mischief' is an old expression. It may be understood to refer to a state of affairs which to date the law has not addressed. It is in that sense a defect in the law which is now sought to be remedied. The mischief may point most clearly to what it is that the statute seeks to achieve."
Part 7 of the Motor Accident Injuries Act 2017 (NSW) deals with Dispute Resolution. Section 7.42(1) of the Motor Accident Injuries Act 2017 (NSW) provides that a dispute may be referred at any time to the PIC by any party to the dispute, for assessment under Div 7.6 - Claims Assessment. Pursuant to s 7.36(1) the PIC is vested with power, in respect of a claim referred to it, to make an assessment of the issue of liability for the claim (unless the insurer has admitted liability). The PIC must, as soon as practicable after an assessment, issue the insurer and claimant with a certificate as to the assessment. Pursuant to s 7.42(3), an assessment of a dispute about a miscellaneous claims assessment matter relating to a claim for statutory benefits, is binding on the parties to the dispute.
Section 7.1(2) provides that a function conferred by the Motor Accident Injuries Act 2017 (NSW) on a decision-maker is to be exercised in accordance with the Commission rules by a decision-maker designated by the President, except if it is a "miscellaneous claims assessment matter". The latter is defined to mean a matter declared by Sch 2 to be a "miscellaneous claims assessment matter". Clause 3 in Sch 2 to the Motor Accident Injuries Act 2017 (NSW) declares the "Miscellaneous Claims Assessment Matters" for the purposes of Part 7 of the Motor Accident Injuries Act 2017 (NSW). Paragraph (f) in clause 3 is: "(f) whether the insurer is entitled to refuse payment of statutory benefits in accordance with section 3.37 (No statutory benefits payable to injured person who commits serious driving offence)."

Error on the face of the record

Counsel for the insurer has given a brief summary as to the law on what constitutes an error on the face of the record. It is as follows:
For the purpose of error of law on the face of the record, the record of an inferior court or tribunal consists in the originating process or notice of appeal which initiated the proceedings before the court, the pleadings (if any), and the formal document which contains the determination, order or final decision of the court or tribunal. It was confirmed in Craig v South Australia (1995) 184 CLR 163 and Kirk v Industrial Relations Commission of New South Wales (2010) 239 CLR 531 that the record does not include the evidence or the reasons of the court or tribunal, unless the final order or determination incorporates the evidence or reasons by reference. However, following its insertion into s 69 of the Supreme Court Act 1970 (NSW) in 1996, s 69(3) declares that the jurisdiction of the Supreme Court to grant relief in the nature of certiorari includes jurisdiction to quash for error of law on the face of the record of a court or tribunal. Section 69(4) provides that for the purposes of s 69(3) "the face of the record includes the reasons expressed by the court or tribunal for its ultimate determination". The decision was clearly made by the PIC, and so made by a "tribunal" for the purposes of PIC s 69(4). The reasons are therefore incorporated into the final adjudication, which is the certificate.
However, it is not necessary to rely on s 69(4). Section 7.36(5) of the Motor Accident Injuries Act 2017 (NSW) requires the PIC in issuing the certificate of determination of a referred matter, to "attach a brief statement to the certificate, setting out the [PIC's] reasons for the assessment". Where a statutory officer-holder vested with power to issue a certificate that is justiciable has a statutory duty to give reasons and to annex them to the certificate, the reasons will be incorporated into the record at common law. In Pham v NRMA Insurance Ltd [2014] NSWCA 22; (2014) 66 MVR 152, Leeming JA held that the record of an assessor appointed under the former Motor Accidents Compensation Act 1999 (NSW), consisted in the certificate with reasons incorporated, those reasons being required to be attached by s 94(5) of the Motor Accidents Compensation Act 1999 (NSW), the predecessor of s 7.36 of the PIC Act.
The certificate states: "A statement setting out the Commission's reasons for the assessment is included with this certificate". These are clear words of incorporation of the reasons. The reasons refer in detail to the evidence with descriptions and precise footnotes of documents that were before the Member. The evidence can also be taken to be incorporated into the record.
In this judicial review, it is not disputed that: 1. The first defendant was charged with an offence under s 111(1)(a) of the Road Transport Act 2013 (NSW). Section 4(d) of the Road Transport Act 2013 (NSW) defines a "major offence" to include an offence under ss 111. 2. The offence with which the first defendant was charged was a "serious driving offence" within the definition in s 3.37(5)(a), which includes a "major offence" under the Road Transport Act 2013 (NSW). 3. The serious driving offence "was related to the motor accident", within s 3.37(1) and s 3.37(2)(a) of the Motor Accident Injuries Act 2017 (NSW). Before the Member it was contended that the phrase "related to" indicated that in order for a claimant to be disentitled there had to be a causal connection between the serious driving offence and the accident: Decision [24]-[25]. The Member found it unnecessary to determine the question, but in any event did consider it and rejected the first defendant's contention: Decision [55]-[61]. The Member concluded that the definition of "related to" in s 3.37(3) did not require a causal link between the offence and the accident, and therefore the phrase was satisfied: Decision [59]. 4. The first defendant's motorcycle was a "motor vehicle involved" in the accident, within s 3.37(3)(b) of the Motor Accident Injuries Act 2017 (NSW).

Construction of s 3.37 of the Motor Accident Injuries Act 2017 (NSW)

Part 3 of the Motor Accident Injuries Act 2017 (NSW) ('the Act') entitled 'Statutory benefits'. Section 3.1(1) of the Act provides that if the death or injury to a person results from a motor vehicle accident, statutory benefits are payable in respect of the death or injury as provided by Part 3. Statutory benefits are payable (except as otherwise provided by Part 3) whether or not the accident was caused by the fault of the owner or driver in the use or operation of the vehicle and even if the accident was caused by the fault of the person to whom the benefits are payable.
Division 3.5 in Part 3 sets out restrictions and limitations on statutory benefits. One limitation is found in s 3.37. Central to this judicial review is the proper construction of s 3.37 of the Motor Accident Injuries Act 2017 (NSW).
Section 3.37 reads: 3.37 No statutory benefits payable to injured person who commits serious driving offence (1) Statutory benefits under this Part are not payable to an injured person after the person has been charged with or convicted of a serious driving offence that was related to the motor accident. (2) This section does not prevent the payment of statutory benefits if the person is acquitted of the offence charged or the proceedings are discontinued (otherwise than in circumstances of a plea of guilty to another serious driving offence that contributed to the person's injury). If the person is so acquitted or the proceedings are so discontinued - (a) statutory benefits are payable from the date the person was charged with the offence, and (b) any limitation period on proceedings for the recovery of those benefits does not commence until the person's acquittal or the discontinuance of the proceedings. (3) A serious driving offence with which an injured person is charged or convicted is considered to be related to a motor accident only if - (a) the offence relates to the driving of a motor vehicle by the injured person, and (b) the motor vehicle was involved in the motor accident that caused the person's injury. (4) A person is considered to have been charged with a serious driving offence if proceedings for a serious driving offence are pending against the person, and the person is considered to have been charged when those proceedings were commenced. (5) A serious driving offence is - (a) an offence that is a major offence under the Road Transport Act 2013 or an offence under section 115 or 116 (2) (a)-(e) of that Act, or (b) any other offence prescribed by the regulations under this Act as a serious driving offence, but does not include an offence prescribed by the regulations under this Act as excepted from this definition. (6) This section does not entitle an insurer to recover payments of statutory benefits made before the person is charged with or convicted of the relevant serious driving offence.
The parties agree that s 3.37 should be read as a whole and the phrases "acquitted of the offence", "charged" and "the proceedings are discontinued" should be given their ordinary English meaning. They are disjunctive. It is also common ground that the first defendant was charged with serious driving offences required under s 3.17(5) of the Act.
Section 10(1)(a) of the Crimes (Sentencing Procedure) Act 1999 (NSW): 10 Dismissal of charges and conditional discharge of offender (1) Without proceeding to conviction, a court that finds a person guilty of an offence may make any one of the following orders - (a) an order directing that the relevant charge be dismissed.

Charged with an offence

The relevant parts of the Member's decision are as follows: "[36] There is no dispute that Mr Hulse was charged with an offence. Both parties have referred to it in their submissions and the court document evidence that fact. [37] The charges against Mr Hulse have been dismissed but that cannot change the historical fact that soon after the accident, Mr Hulse was charged with an offence. [38] The insurer seems to be suggesting that s 3.37(1) should be interpreted as referring to the historical fact of a charge made regardless of whether the charge is dropped or pursued or whether the charge is proven or not. I do not agree with that submission for two reasons: (a) Firstly, sub-s 2 explicitly provides that if a person is acquitted of the charges or the proceedings are discontinued, statutory benefits are to be paid. In those situations, the historical fact is that charges have been laid but the injured person has not been convicted of those charges which enables the payment of benefits to resume, and (b) in addition, s 3.37(4) clarifies what "charged with a serious driving offence" means and that sub-section does not appear to be at all concerned with the "historical fact" of the actual charge but the existence of proceedings which deal with the charge. Convicted of an offence [39] Section 3.37(1) says that no statutory benefits are payable 'after the [injured person] has been convicted of ... a serious driving offence that was related to the accident" (emphasis added). [40] According to the documents including the Court Result sheet, Mr Hulse pleaded guilty to the two offences, the magistrate then found him guilty, but the magistrate granted his s 10(1)(a) application and, without proceeding to a conviction, dismissed the charges. This is, I understand one of the most lenient of all sentencing options available. [41] It is clear Mr Hulse pleaded guilty to the offences with which he was charged. Pleading guilty and admitting the offence is not the test proposed by s 3.37(1). In my view, an actual conviction is required. A person is convicted of an offence if they are proven, declared or found guilty of the offence10. The Court Record notice states that Mr Hulse was formally found guilty by Magistrate Carney which suggests therefore that Mr Hulse was actually convicted of the serious driving offence with which he was charged. [42] I agree with the parties that the phrase "charged with or convicted of" is disjunctive and involves two separate requirements, that is being charged with a serious driving offence or being convicted of a serious driving offence. If either of two is satisfied then statutory benefits are not payable. [43] In my view Mr Hulse was, soon after the accident charged with an offence, but there are no longer proceedings pending against him and therefore the first option in s 3.37(1) is not met. However, it could be interpreted that Mr Hulse has been convicted of a relevant offence and therefore the second option may apply." Does section 3.37(2) apply? [44] Section 3.37(2) of the MAI Act provides that if the injured person is acquitted, statutory benefits are payable from the date of the charges. Sub-section 2 also provides that if proceedings are discontinued payment is backdated to the date of the charge. [45] The insurer says that "the serious driving offence with which the claimant was charged was proven, the claimant having been found guilty, but the court exercised its discretion to dismiss the matter without conviction. The police did not discontinue the charges." [46] A person is acquitted if, after a trial the magistrate or judge is not satisfied that the charge has been proven by the prosecutor. The charge does not appear on the person's criminal record but there is a record of the court proceedings and the outcome of the acquittal. [47] Proceedings are discontinued when the prosecutor in those proceedings considers there is insufficient evidence or a procedural defect (such as that apparently argued by Mr Learmouth) or some other reason why the proceedings cannot or should not continue. Again, the charge does not appear on the person's record but there is a record of the proceedings and the outcome of the discontinuance. [48] I agree with the insurer that, in Mr Hulse's case his proceedings were not discontinued. Therefore s 3.37(2) does not apply. His charges were dismissed after his guilty plea and before he was convicted. Section 3.37 does not provide for this situation. What is the effect of the s 1O(1)(a) order? [49] The Court Result notice quite clearly states that an order was made dismissing the "matter" without proceeding to conviction under s 10(1 )(a) of the CSP Act. That section states: "(1) Without proceeding to conviction, a court that finds a person guilty of an offence may make any one of the following orders - (a) an order directing that the relevant charge be dismissed". [50] In Mr Hulse's case there was a charge and there were proceedings but there was no trial because the claimant pleaded guilty. I agree with the insurer that the claimant was 'found" to be guilty. However, no conviction was recorded, and the claimant's charges were dismissed. Does the phrase "convicted of' in s 3.37(1) refer to the finding of guilt by the Magistrate or depend on the sentence and whether a conviction is recorded or not? I have not been taken to any case law on the point, by in my view s 10(1)(a) distinguishes between a finding of guilt and the decision to convict. In Mr Hulse's case the Magistrate decided that Mr Hulse's matter was an appropriate case for a s 10(1)(a) order. [51] The effect of the order is that there is no conviction of Mr Hulse on the charges laid against him. There is no conviction because the charges have been dismissed. [52] The charges therefore will not appear on Mr Hulse's criminal record but there is a record of the proceedings and the outcome of the dismissal. But by the Magistrate dismissing the charges, there is effectively no charge in existence. The effect of the dismissal is, in my view, as if there had never been a charge at all other than the "historical fact" of a charge being laid recorded somewhere in the police files and on the court's records. [53] As I said above, a guilty plea is not the test for the non-payment of statutory benefits. The test in s 3.37(1) is twofold, whether the claimant has been charged with (within the meaning of s 3.37(4)) or convicted (by the court recording a conviction) of a serious driving offence. [54] The claimant was charged with a relevant offence, but the charges were dismissed before Mr Hulse was convicted and that results in Mr Hulse being eligible for the payment of statutory benefits.
The Member in her conclusion stated at [62] - [64]: CONCLUSION AND COSTS [62] I am satisfied that the offence of driving with an illicit substance (cannabis) is a serious driving offence relating to Mr Hulse's driving of his motor vehicle and that his motor vehicle was involved in the accident that caused his injuries. [63] However, I am also satisfied that Mr Hulse has no conviction for that serious driving offence and he is not charged with a serious driving offence because the charges have been dismissed and there are no proceedings pending against him. [64] It therefore follows that Mr Hulse is entitled to the continued payment of his statutory benefits. As the charges against him were dismissed and it is as if they were never laid, he should, in my view be paid those statutory benefits from the date of the accident."

The insurer's submissions

The central dispute before the Member centred on the question whether the order made by the Local Court dismissing the proceeding against the first defendant pursuant to s 10(1)(a) of the Crimes (Sentencing Procedure) Act 1999 (NSW) fell within s 3.37(2) of the Motor Accident Injuries Act 2017 (NSW). The insurer submitted that the conclusion reached by the Member, was a misconstruction and misapplication of s 3.37 of the Motor Accident Injuries Act 2017 (NSW), and that this is an error of law on the face of the record of the PIC.
At [59], the Member referred to the second limb of the test. That is whether a driving offence is related to the motor accident is whether the motor vehicle was involved in the accident that caused the injuries. That statement is not disputed in this judicial review. There is no challenge to this passage at [59]: "[59]… The claimant said because of this, I should interpret s 3.37(1) and s 3.37(3) to imply a causal connection between the offence and the injury (as opposed to the motor accident). In my view that is impermissible…"

Section 3.37(1)

Section 3.37(1) of the Act is intended to restrict or limit statutory benefits. It disentitles an injured person to payment of statutory benefits under Part 3 of the Motor Accident Injuries Act 2017 (NSW) if the circumstances described in s 3.37(1) occur. Section 3.37(2) then limits the continuation of that disentitlement by carving out circumstances that lift it. Focusing on the opening words in s 3.37(1), "after the person has been charged with" fixes the point of time at which the disentitlement commences. Section 3.37(2) is concerned with events which may occur after that point of time. If the person has at any time been charged with a serious driving offence that was related to the motor accident, from that point of time the person is not entitled to statutory benefits. The status of disentitlement may end, or be lifted, in accordance with s 3.37(2).
The words "has been charged with … a serious driving offence" are in the past tense. They only require that the person has been charged in the past. The words do not require that the person remains charged at any particular later point of time. If that were the intention different language would have been used, such as "where charges are pending against a person or the person is convicted of... ". The use of the past tense and the word "after" and the purpose of establishing a limitation upon entitlement to statutory benefits, indicates that the charge triggers a status of disentitlement. It is the status of disentitlement that continues. There is no requirement for a continuing status of "being charged" or charges "remaining pending". The continuing status of disentitlement differs from a supposed continuous status of remaining "charged". The making of a charge is a discrete act occurring at a particular point of time. The disentitlement that it triggers is a status that continues unless it is ended by either of the circumstances described in s 3.37(2) [the insurer's emphasis].
The Member correctly found that the first defendant "has been charged with … a serious driving offence" within s 3.37(1): Decision at [36].
The Member rejected the first defendant's submission that s 3.37(1) refers to the historical fact of a charge having been made, regardless of whether the charge continues in existence: Decision [38].
The Member conflated the concept of "is acquitted of the offence charged" in s 3.37(2) with the question whether or not the person has been "convicted" in s 37.3(1): Decision at 38. The Member misstated the test in s 3.37(3) as an overarching test as to whether the injured person "has not been convicted" when the test is whether the person "is acquitted" or "the proceedings are discontinued... injury)": Decision at 38. The other reason given (Decision 38) concerns the construction of s 3.37(4), which is addressed below.
The insurer submitted that the Member erred in holding that if there are "no longer proceedings pending against [the first defendant]" then the words "has been charged with... a serious driving offence" in s 3.37(1) are not met: Decision [43]. That is not an available construction of the words in s 37.3(1). According to their ordinary English meaning the words refer to a past act of charging a person with an offence. They do not refer to a continuous state of being charged that occurs when the PIC determines the referral.

Section 3.37(2)

In s 37.3(2) the words "is acquitted of the offence charged" should be given their ordinary meaning. Where an accused pleads guilty and an order is made under s 10(1)(a) of the Crimes (Sentencing Procedure) Act 1999 (NSW), plainly those words are not met. It was not in dispute that the first defendant had not been acquitted.
The words "the proceedings are discontinued (otherwise than in circumstances of a plea of guilty to another serious driving offence that contributed to the personal injury)" in s 3.37(2) should be given their ordinary English meaning. The Member correctly found that the proceedings for a serious driving offence had not been "discontinued" within the meaning of s 3.37(2): Decision [47]-[48].
Since there was no acquittal and no discontinuance the Member correctly concluded that s 3.37(2) did not apply: Decision [48]. However, the Member nonetheless, reached a conclusion that the first defendant was not disentitled under s 3.37(1).
The construction and application of the words "the proceedings are discontinued (otherwise than in circumstances of a plea of guilty to another serious driving offence that contributed to the personal injury)" in s 3.37(2), arose in circumstances where the Local Court had made an order under s 10(1)(a) of the Crimes (Sentencing Procedure) Act 1999 (NSW).
The Member correctly found that by the order under s 10(1)(a) the charge "had been dismissed", and that this event did not change the historical fact that the first defendant had been charged with an offence: Decision [37].
However, the Member erred in construing s 3.37(2) as lifting the disentitlement in any circumstances where a charge is no longer pending. On the Member's construction, s 3.37(2) reads as follows: "(2) This section does not prevent the payment of statutory benefits if proceedings are no longer pending against the person is no longer charged with acquitted of the offence charged or the proceedings are discontinued (otherwise than in circumstances of a plea of guilty to another serious driving offence that contributed to the person's injury). If proceedings are no longer pending against the person is so acquitted or the proceedings are discontinued - (c) statutory benefits are payable from the date the person was charged with the offence, and (c) any limitation period on proceedings for the recovery of those benefits does not commence until the time when proceedings were no longer pending against the person's acquittal or the discontinuance of the proceedings.
This version of s 3.37(2) is inconsistent with the actual s 3.37(2), on the face of it, and for the following reasons.
First, proceedings may be no longer pending against a person in a range of different circumstances. Section 37.3(2) identifies only two circumstances that triggers a reinstatement of entitlement to benefits. These are: (i) the person is acquitted of the offence; and (ii) the proceedings are discontinued, (except in circumstances of a plea of guilty to another serious driving offence that contributed to the person's injury). If neither (i) nor (ii) occurs, then the fact that proceedings are no longer pending has no significance for the operation of s 37.3(1) which continues to effect disentitlement. Both happened to be circumstances whereas a consequence of the acquittal or discontinuance a charge will no longer be pending. However, it does not follow that the non-existence of pending charges, irrespective of the reason, is a circumstance that triggers reinstatement.
Secondly, the bracketed words in s 3.37(2) make it clear that it is irrelevant that proceedings on one charge are discontinued because the claimant has pleaded guilty to a charge for another serious driving offence that contributed to the injury. In those circumstances the disentitling effect of s 3.37(1) continues to operate notwithstanding that the charge referred to in s 3.37(1) is no longer pending. The charges for each of the offences referred to in the bracketed part are distinct. They may be made on different dates. None of that affects the intention that "the offence charged" in s 3.37(2) is a reference to the offence "the person has been charged with" in s 3.37(1). In short, s 3.37(2) makes it very plain that there is at least one circumstance where proceedings on that charge are discontinued but s 3.37(1) prevents payment of statutory benefits for an indefinite period after the charge was made. The construction of s 3.37(2) adopted in the decision is inconsistent with the unambiguous plain text of s 3.37(2). The construction adopted overrides the exception in the bracketed words, because it allows discontinuance on account of a guilty plea for another serious driving offence, to mean that the proceedings under the charge are no longer pending and hence the statutory benefits are payable from the date when the person was charged. It is not the legislative intention that discontinuance on account of a guilty plea for another serious driving offence is a circumstance that has the effect of reinstating the entitlement to the statutory benefits.
The construction adopted in the decision renders s 3.37(2) otiose. The precise identification of two circumstances where entitlement to statutory benefits is reinstated, is replaced by a broad test of "proceedings are no longer pending". That test is said to flow from s 3.37(4). If s 3.37(4) states the test as to when disentitlement by force of s 3.37(1) stops or is lifted, then there would have been no need to include s 3.37(2).
The Member fell into error in the Decision at [43], in holding that while the first defendant was charged with a serious driving offence, "there are no longer proceedings pending against him and therefore the first option in s 3.37(1) is not met". This is to require that charges literally be pending continuously in order for disentitlement to operate, including at the time when the PIC makes its decision in the referral. That is not what s 3.37(1) and (2) require. The requirement is that the person "has been charged" with a serious driving offence, an event that occurred in the past. The event of making a charge against the person gives the person a particular status. That status continues unless circumstances occur which lift the status. No such circumstances have occurred. The Member has impermissibly read into s 3.37(1) different words stating a test as to whether there are "no longer proceedings pending against him" (Decision [63]), in place of "has been charged".

Section 3.37(4)

The requirements in s 3.37(2) for lifting the status given by s 3.37(1) are not altered by s 3.37(4). Section 3.37(4) is a clarificatory provision. The words "is considered to" have the same meaning as "is taken to", and operate as a deeming provision. The words "is considered to" are also used in s 3.37(3) to clarify when a serious driving offence with which an injured person is charged is "related to a motor accident".
Section 3.37(4) clarifies what it means to "have been charged". Like s 3.37(1), s 3.37(4) uses the past tense, twice. In s 3.37(4) the words "pending against the person" mean pending against the person at the time the charge is made, because of the charge. The fact that proceedings are pending is a way of testing whether a charge has been laid. The words "pending against the person" do not mean pending for a period into the future. The words "are pending" refer to proceedings that are pending at that time because of the charge. It is only from the point of time of the charge that benefits are not payable as is indicated by the use of the word "after" in s 3.37(1).
The purpose of s 3.37(4) is to fix the time when the disentitlement occurs. This date is critical throughout s 3.37. After the date of the charge, it is lawful to cease paying the statutory benefits. Pursuant to s 3.37(6) the insurer is not entitled to recover payments of benefits made before the date of the charge (or conviction). The use of the word "after" in s 3.37(1) and the provision in s 3.37(6) indicate that there is an intention to deal with a situation where benefits have been paid to a person prior to the date of the charge. The benefits are to stop at that point of time. However, as s 3.37(6) makes clear, the insurer cannot recover the payments made before that date of the charge.
The date when disentitlement occurs is easy to identify in the case of a conviction, because there is a publicly known court order. In the case of a charge there is less certainty as to that date. Following the first court appearance the fact that proceedings are pending is public and this confirms that the person must have been charged. When a person is charged with a serious driving offence it is unlikely that an insurer will know immediately. Until the insurer is made aware of the charge, the insurer will continue to make payments of statutory benefits, beyond the date when the payments should have ceased. However, s 3.37(6) does not prevent recovery of the payments made after the date of the charge.
As well as having a purpose of fixing the date of charge, s 3.37(4) clarifies that there is no need for the charge to be made by any particular type of process. A simple test is adopted for determining whether a charge has been made. If proceedings for a serious driving offence are pending against the person, the person must have been charged with that offence.
Section 3.37(4) is to be read as a whole. The comma in the middle of the subsection should not be treated as a full stop. Section 3.37(4) does not provide a basis additional to the circumstances identified in s 3.37(2) as to when the status of disentitlement given by s 3.37(1) ceases. If it had been the intention to allow circumstances additional to acquittal and discontinuance to lift the disentitlement, that would have been stated in s 3.37(2). However, s 3.37(2) is very precise in its terms, which do not enable an order made under s 10(1)(a) of the Crimes (Sentencing Procedure) Act 1999 (NSW) to lift the disentitlement.
Nor does s 3.37(4) alter the substance of s 3.37(1) by defining "has been charged" to mean "has been and remains charged in existing proceedings". That reads into s 3.37(1) the additional words "and remains" and "in existing proceedings". Section 3.37(4) is focused upon the past, and seeks to clarify when a person "has been charged" in the past.
The Member misconstrued s 3.37(2) by treating s 3.37(4) altering the requirement in s 3.37(1) to establish the historical fact of the actual charge, replacing that with a requirement to demonstrate "the existence of proceedings which deal with the charge": Decision 38. Section 3.37(4) does not affect the construction of s 3.37(1) in this manner.

Conclusion

In summary, the insurer submitted that the Member's misconstruction and misapplication of s 3.37 of the Motor Accident Injuries Act 2017 (NSW) is an error of law. The error appears on the face of the record of the PIC. Insofar as it is necessary to show that the error materially affected the decision, the error deprived the insurer of the possibility of a successful outcome in the referral.

The first defendant's submissions

The first defendant disputes that the Member, in her decision dated 14 December 2022 (Decision), has misconstrued and misapplied section 3.37 of the Motor Accident Injuries Act 2017 (NSW).
The insurer does not dispute that the first defendant was not convicted of a serious driving offence for the purpose of s 3.37(1). Having regard to sections 8(2) and 12(c)(i) of the Criminal Records Act 1991 (NSW), the Member was plainly correct in finding that the first defendant was not "convicted" of a serious driving offence.
Sections 8(2) and 12(c)(i) of the Criminal Records Act 1991 (NSW) read as follows: 8 When is a conviction spent? (1) A conviction is spent on completion of the relevant crime-free period, except as provided by this section. (2) A finding that an offence has been proved, or that a person is guilty of an offence, without proceeding to a conviction is spent immediately after the finding is made, except as provided by this section. … 12 What are the consequences of a conviction becoming spent? If a conviction of a person is spent - … (c) in the application to the person of a provision of an Act or statutory instrument - (i) a reference in the provision to a conviction is taken to be a reference only to any convictions of the person which are not spent, and …
Any alleged disentitlement to statutory benefits must flow from a finding that the first defendant "has been charged with" a serious driving offence.
It is common ground that at the time of the decision under review, there were no pending charges against the first defendant.
The insurer has submitted that the "dispute before the [Member] centred on the question of whether the order made by the Local Court dismissing the proceedings against the first defendant pursuant to s 10(1)(a) of the [Crimes (Sentencing Procedure) Act 1999 (NSW)] fell within s 3.37(2) of the Motor Accident Injuries Act 2017 (NSW)".
The first defendant submitted that the insurer has incorrectly characterised both the nature of the dispute and the Member's findings.
The question is not whether the orders made by the Local Court (in which the charges against the first defendant were dismissed without proceeding to conviction) fall within s 3.37(2). That is not what the Member found. In fact, the Member stated at [48] of her Decision: "I agree with the insurer that, in Mr Hulse's case his proceedings were not discontinued. Therefore s 3.37(2) does not apply. His charges were dismissed after his guilty plea and before he was convicted." [Emphasis added]
The Member determined the question of disentitlement by reference to s 3.37(1) and s 3.37(4).
This is not a case, as the insurer suggests, where it is necessary for the Court to read words into or out of s 3.37(2) in order for the decision under review to be lawfully made.
The construction of s 3.37 for which the insurer contends would result in an outcome that is capricious, irrational, unjust, or unreasonable, and is not supported by a purposive and plain English language interpretation of s 3.37 when read as a whole. On the insurer's construction, if a relevant charge against a person is withdrawn or dismissed (neither mode of resolution being one that is specifically excluded from the disentitling provision by virtue of s 3.37(2)), that person would be disentitled to statutory benefits in exactly the same manner as a person who was convicted of the subject serious driving offence.

Section 3.37(1)

It is agreed that s 3.37(1) is intended to restrict or limit statutory benefits in certain circumstances. It is a disentitling provision, which the insurer bears the onus of proving.
The insurer submitted that the "words 'has been charged with . . . a serious driving offence' are past tense. They only require that the person has been charged in the past. The words do not require that the person remains charged at any particular later point in time."
It is inevitable and unsurprising that s 3.37(1) would require that the person has been charged "in the past" in order for the section to operate. The only alternative is illogical and suggests that a person could be disentitled on the basis of a future or expected charge that has not yet occurred.
It is important to consider that s 3.37(1) contains two limbs: "has been charged with or convicted of…"
If s 3.37(1) is construed in the way contended for by the insurer, the mere fact of a charge at any point in history means that the claimant is disentitled for all time (unless one of the exceptions in s 3.37(2) applies). This gives the words "or convicted of" no work to do. If the mere act of charging a person with a serious driving offence is sufficient to disentitle that person for all time then there would be no need to also include "or convicted of", given that a conviction can only occur after a charge and does not alter the historical fact of a charge.
On the first defendant's contended construction, the alternative "or convicted" comes into effect once the person's charges are no longer pending. The fact that the legislature has included the disjunctive requirement of "or convicted" to continue the disentitling effect of s 3.37(1) after the person has been charged, further supports the first defendant's argument that the reference to a person who has been "charged with" a serious driving offence is only considered to be charged with a serious driving offence for the purpose of s 3.37(1) while those charges are pending.
The subject charge was a summary offence commenced by filing of a Court Attendance Notice under section 172 of the Civil Procedure Act 1986 (NSW). It was this charge that was dismissed by the magistrate under section 10(1)(a) of the Crimes (Sentencing Procedure) Act 1999 (NSW).
The first defendant says that the Member was correct to find that the effect of "dismissing" a charge under section 10 of Crimes (Sentencing Procedure) Act 1999 (NSW) is that there was, at the time of her determination, no charge in existence. The Member was correct to find that it is as if the charge had never been laid at all, except for the mere historical fact on paper of a charge having been laid. It is similar in concept to the decision of a Tribunal being quashed under section 69 of the Supreme Court Act 1970 (NSW). Although there is the historical fact of the decision having been made, it ceases to have any legal status as at the date the decision is quashed, and the voiding of legal status back-dates to the date of the decision. In support of this submission, the first defendant relies on the following: 1. When reading s 3.37 as a whole, s 3.37(4) provides some "clarification" (as the Member found at [38(b)] of the Decision) to how s 3.37(1) is to be interpreted. At [38], the Member found that the clarification provided by s 3.37(4) "does not appear to be at all concerned with the 'historical fact' of the actual charge but the existence of proceedings which deal with the charge". The first defendant says this interpretation was correct. 2. Section 3.37(4) is given no work to do if the construction contended for by the insurer is accepted. If s 3.37(1) means that a person who has been charged at any point in time is considered to have been charged with an offence for all time, then s 3.37(4) adds nothing to the operation of the section. 3. The clarification provided by s 3.37(4) supports the interpretation that the mere historical fact of a charge being laid is not determinative of the s 3.37(1) disentitlement. Rather, the charge is only relevant to section 3.37(1) for as long as the charge is pending and until the matter is resolved (one way or another). 4. When considering the ongoing status (if any) of a "charge" after a dismissal, it is necessary to consider the provisions of the Criminal Records Act 1991 (NSW) and the effect that it has on the legal status of a "conviction". Section 8 of the Criminal Records Act 1991 (NSW) sets out when various convictions are "spent". Section 8(2) provides that for cases such as in s 10(1)(a) of the Crimes (Sentencing Procedure) Act 1999 (NSW), where a finding that a person is guilty of an offence, but with no conviction recorded, the "conviction" is spent immediately after the finding is made. For orders such as s 9 of the Crimes (Sentencing Procedure) Act 1999 (NSW), section 8(4) sets out that the conviction is spent at the end of the period of conditional release. Other convictions are spent at the completion of the relevant crime-free period (s 8(1)). 5. Importantly, pursuant to s 12 of the Criminal Records Act 1991 (NSW), spent convictions are not required to be disclosed, are not part of a person's criminal history, and in the application of the person to an Act or instrument (per s 12(c)): (i) a reference in the provision to a conviction is taken to be a reference only to any convictions of the person which are not spent, and (ii) a reference in the provision to the person's character or fitness is not to be interpreted as permitting or requiring account to be taken of spent convictions. 1. In other words, even convictions have an end date, for the purposes of interpretation in other Acts (including the Motor Accident Injuries Act 2017 (NSW)). That is why it was plainly correct for the Member to find that the s 10(1)(a) was not a conviction for the purposes of s 3.37(1): the conviction was spent immediately after the finding was made, and the Criminal Records Act 1991 (NSW) says that is no longer a "conviction" for the purpose of other Acts. The insurer does not challenge that finding. 2. A person is not tarred with the brush of a conviction forever, or indeed at all in the case of an offence sufficiently minor to garner a s 10(1)(a) dismissal. 3. Where the NSW Parliament intends for a charge or conviction to have effect "forever" as the insurer contends, it specifically says so. For instance, in the Child Protection (Working with Children) Act 2012 (NSW), section 5C provides that a person's "criminal history" includes (at 5C(1)): (a) convictions (including convictions that have been spent, quashed or set aside or for which a pardon has been granted), despite anything to the contrary in the Criminal Records Act 1991, and (b) criminal charges, whether or not heard, proven, dismissed, withdrawn or discharged, and (c) convictions or findings to which section 579 of the Crimes Act 1900 applies (despite the provisions of that section). 1. Both "charges" (whenever and however made and whatever the outcome) and "convictions" live "forever" for the purposes of working with children. Parliament has expressly stated this. No such provision appears in the Motor Accident Injuries Act 2017 (NSW). 2. It would be incongruous to find that even though a conviction is "spent" immediately after the making of a s 10(1)(a) order, the "charge" that led to the order, and that has been dismissed by the order, continues to exist for the purposes of that same legislation (as the insurer would have it, forever). 3. Where there is a statutory construction that avoids such an illogical outcome, that statutory construction should be preferred. Having regard to the purpose and context of the statutory benefits provisions, a construction that excludes any and all claimants from recovery of benefits if they were ever charged, no matter whether the charge was reasonable or unreasonable, and no matter the outcome of the charge, cannot be the intended meaning of s 3.37.
The insurer has submitted that the "making of a charge is a discrete act occurring at a particular point in time. The disentitlement that it triggers is a status that continues unless it is ended by either of the circumstances described in s 3.37(2)".
The insurer omits that it will not be necessary to rely on the specific exclusions in s 3.37(2) if the primary criteria in s 3.37(1) are not satisfied. That was essentially the Member's finding. In circumstances where s 3.37(1) does not apply, there is no disentitlement under s 3.37(1) and therefore no requirement to satisfy either of the two criteria in s 3.37(2).
The insurer has alleged that the Member has "tended to conflate the concept of 'is acquitted of the offence charged' in s 3.37(2) with the question whether or not the person has been "convicted" in s 3.37(1)".
What the Member actually found (after correctly finding that the first defendant had not been convicted of a serious driving offence) is that: 1. as proceedings for a serious driving offence are not pending against the first defendant (decision at [43]); and 2. given that the charge against the first defendant was dismissed, which means there is effectively no charge in existence and it is as though there had never been a charge at all, aside from the historical fact of the charge having been made in the past (decision at [52]), 3. the first defendant does not satisfy the definition of "has been charged with" a serious driving offence for the purpose of s 3.37(1). The Member was correct to so find.

Section 3.37(2)

The insurer submits at paragraph 4.16 that "the Member erred in construing s 3.37(2) as lifting the disentitlement in any circumstances where a charge is no longer pending". The insurer does not identify the paragraph of the decision in which the Member allegedly made that finding. The first defendant submits that that is because she did not make that finding, as has been set out in detail above.
The first defendant says that section 3.37(2) did not apply to the circumstances of this matter, and that the Member was correct to so find.
On this basis, the first defendant respectfully submits that the insurer's submissions regarding s 3.37(2) address the wrong issue. The issue is not whether or not s 3.37(2) extended to cover the factual matrix of the present case (where the charges were dismissed). Rather, the issue is whether s 3.37(2) is exhaustive as to the matters that are excluded from the disentitling provision in s 3.37(1) and whether it should be interpreted as confining the other sub-sections of s 3.37.
Section 3.37(2) relevantly provides: "This section does not prevent the payment of statutory benefits if the person is acquitted of the offence charged or the proceedings are discontinued…"
It is an exemption from the general disentitling provision at 3.37(1). It sets out particular circumstances where a claimant will be exempted from the disentitlement that would otherwise flow from the application of s 3.37(1).
Importantly, there is nothing in the plain wording of s 3.37(2) that suggests that it is intended to be exhaustive as to the circumstances in which section 3.37(1) does not prevent payment of benefits. Furthermore, there is nothing in the plain wording of s 3.37(2) that suggests that the other subsections of s 3.37 are to be read down so as to fit within the confines of that subsection.
The phrasing of s 3.37(2) does not attempt to define the terms in s 3.37(1). Absent from 3.37(2) is any language to the effect that the words used in s 3.37(1) will be "considered to be" or "taken to be" anything in particular. Rather, the subsection commences with the words "This section does not prevent…" It is expressed to permit a specific exemption from the operation of s 3.37(1), not a definition of any of the words in s 3.37(1).
Section 3.37(2) continues on to provide that that payment of statutory benefits is not prevented "if…" Adopting the ordinary English language meaning, the Macquarie Combined Dictionary defines "if" as "on condition that": Macquarie Combined Dictionary, Third Edition, reprinted 2023. "If" is therefore a conditional proposition that must be satisfied in order for the section to apply. Whether the use of the word "if" is taken to be exhaustive is a question of construction, and the provision must be viewed in context: Jabetin Pty Ltd v Liquor Administration Board [2005] NSWCA 92; 63 NSWLR 602.
In s 3.37(2), there is no reason to find that Parliament intended the "if" to be exhaustive. By contrast, in s 3.37(3) the words "only if" are used. Indeed, the words "only if" are used in thirteen places throughout the Act. This language does not appear at s 3.37(2). The insurer's amended summons makes this very argument about the absence of the word "only" with respect to s 3.37(4), contending that if that sub-section was intended to limit the operation of s 3.37(1), the word "only" would appear before the word "if".
Applying the insurer's own reasoning, section 3.37(2) is not an exhaustive statement of the circumstances where a claimant will be exempted from the disentitling provision in s 3.37(1).
In any event, s 3.37(2) only applies in circumstances where the preliminary conditions of s 3.37(1) have been met. There must be the initial "exclusion" in s 3.37(1) to trigger the "exemption" in s 3.37(2). The first defendant's case is that the definition in s 3.37(1) was not satisfied at the time of the Decision, and therefore s 3.37(2) is irrelevant.
The insurer argues (at [4.20]) that the construction adopted in the Member's decision would render section 3.37(2) otiose. This is not so. Section 3.37(2) provides unique protection for claimants whose charges are resolved in two specified circumstances. The claimants that fall within the protection of s 3.37(2) not only have their statutory benefits reinstated from the date of the charge, they also have the limitation period for recovery of statutory benefits suspended. This is a protection not afforded to claimants who do not fall within the specific class of claimants set out in s 3.37(2).
Sections 3.37(1) and (4), do not actively reinstate the claimant's statutory benefits from the date that he or she was charged, and provides no extension of the limitation period.
Therefore, if section 3.37 is given the construction contended for by the first defendant, s 3.37(2) still has work to do in providing specific protection for claimants who are acquitted or where the criminal proceedings are discontinued.
Other claimants will have rights as set out in the rest of section 3.37, and those rights will depend on the facts of each case. For a claimant whose charge has been dismissed under s 10(1)(a), the conviction is immediately spent, the charge evaporates (as the Member found) and benefits may be backdated.
However, for other claimants, the disentitlement in s 3.37(1) continues until the conviction is spent. At that time, they may become entitled to statutory benefits again, but without the special protection in s 3.37(2), they may be outside any relevant limitation period to claim those benefits. Again, this differentiates the specific protections in s 3.37(2) for the specified claimants in that subsection, and gives it work to do.
The insurer's submissions do not address the effect of proceedings that are no longer pending by a means not identified by s 3.37(2). Under s 208 of the Criminal Procedure Act 1986 (NSW), a matter may be withdrawn by the prosecutor and has the effect of a dismissal. Such an outcome is not a discontinuance or an acquittal for the purposes of s 3.37(2). On the insurer's construction, in such circumstances, a claimant would remain disentitled to statutory benefits notwithstanding that they were not convicted of a relevant offence, and despite there no longer being charges pending against the claimant.
There are other types of criminal proceedings that may be "dismissed" rather than "discontinued", and would therefore not fall within the specific protection of s 3.37(2). Section 14 of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW) provides that a magistrate may make an order to "dismiss a charge" and discharge the defendant into the care of a responsible person (or other orders). The dismissal in that section specifically does not constitute a finding of fault. Nevertheless, it is a "dismissal" not a "discontinuance". It would be illogical and unjust for claimants falling within that section to lose their entitlements to statutory benefits. For such a significant removal of rights, one would expect clear wording indicating this intention, which is not present in s 3.37.
Within the principles of statutory construction, there is a fundamental presumption against a construction that will produce consequences that are capricious, irrational, unjust, or unreasonable. The proposition that such consequences should be avoided when a provision is susceptible to alternative constructions is a longstanding legal principle in Australia.
On the insurer's construction of s 3.37 as a whole, where a person is charged with, but not subsequently convicted of a serious driving offence related to the motor accident, the means by which that charge is dispensed with by the Court, would be determinative of that person's entitlements to statutory benefits. A person against whom proceedings are withdrawn or dismissed, would be disentitled to statutory benefits in exactly the same manner as a person who was convicted of the subject serious driving offence. In the circumstances, the first defendant submits that such an outcome would be capricious, irrational, unjust, or unreasonable.
However, that outcome is avoided by a construction of s 3.37(1) and s 3.37(4), which gives all of the words in all of the subsections work to do (as set out above) and interprets section 3.37(4) as providing clarification of the intention behind s 3.37(1).

Section 3.37(4)

The first defendant agrees that s 3.37 should be construed as a whole and in the context of the Motor Accident Injuries Act 2017 (NSW). Accordingly, s 3.37(1) cannot be properly considered without considering s 3.37(4).
The first defendant does not dispute that the requirements of s 3.37(2) are not altered by s 3.37(4), as has been submitted by the insurer. The two serve different purposes and do not define each other.
The insurer seeks to impermissibly read into s 3.37(4) the additional words, "at the time the charge is made". There is no reference to such words in s 3.37(4), nor is there any basis for reading such a limitation into the sub- section when the ordinary English language meaning is clear and unambiguous.
The Macquarie Dictionary defines the word pending as, "remaining undecided". By definition, pending is an interim status that ceases upon final resolution of the matter.
The interpretation for which the insurer contends requires the Court to accept that the pending nature of the charge is only relevant at the time the charge is laid and not relevant at any other time during the proceedings while the charge remains pending or once the proceedings have been finalised and are no longer pending.
If the purpose of s 3.37(4) is to fix the time when the disentitlement occurs, s 3.37(4) provides no greater clarification to s 3.37(1). The insurer submits (at [4.24]) that "[a]fter the date of the charge it is lawful to cease paying statutory benefits". That proposition is already clearly set out under s 3.37(1). Once again, the construction contended for by the insurer gives s 3.37(4) no work to do.
The insurer in effects seeks to alter the language of s 3.37(4) from, "if proceedings for a serious driving offence are pending against the person" to the words, "if proceedings for a serious driving offence are commenced against the person".
The issue addressed in s 3.37(4) is not "whether a charge has been made". Section 3.37(4) addresses the circumstances under which a person is "considered to have been charged" for the purposes of s 3.37(1).
Further, it is not a question of whether the person "must have been charged" or not, such that the legislature is only concerned with the historical fact of the charge. It is a question of whether the person is "considered to have been charged" for the purposes of s 3.37(1). Section 3.37(4) states in ordinary language that a "person is considered to have been charged. . . if proceedings for a serious driving offence are pending against the person".
Section 3.37(4) does not require the reading-in of the additional words "and remains charged in existing proceedings" because the words "are pending" apply to proceedings that have not been finalised, that is, existing proceedings.
The insurer appears to agree that "is considered to" is the same as "is taken to" and that these words operate as a deeming provision. This would support the construction that s 3.37(4) is intended to be exhaustive as to the circumstances where a person is "considered to be charged" with a serious driving offence. The sub-section uses the word "if" rather than "only if", which may suggest (having regard to the consideration of s 3.37(2) above) that it is not intended to be exhaustive. However, it differs from s 3.37(2) in that the words "is considered to have been" suggest some attempt to explain or define the words in s 3.37(1). When read together, the words used in s 3.37(4) may be considered to express the same intention as the words "a person is taken to have a financial interest in a hotelier's licence if…" (emphasis added), that were found to express exhaustive intention in Jabetin Pty Ltd v Liquor Administration Board.
However, it is not necessary to find that section 3.37(4) is exhaustive. The Member did not find that it was. She said that it "clarified" section 3.37(1). The first defendant says, for the reasons outlined above, that s 3.37(4) assists in clarifying that s 3.37(1) does not treat the mere historical fact of a charge as excluding a claimant from statutory benefits for all time. Once a charge has proceeded to a final determination, and the proceedings are no longer pending, the claimant is no longer considered to have been charged with a serious driving offence, for the purpose of the Motor Accident Injuries Act 2017 (NSW).
In any event, s 3.37(1) does not need assistance from s 3.37(4) in order to arrive at the construction contended for by the first defendant, for the reasons set out at [24] - [28] above.

The insurer's submissions in reply

While the insurer's submissions in reply are lengthy, I have endeavoured to summarise them so that they do not repeat its earlier submissions, especially as the submissions should be no more than 10 pages.

Section 3.37(1) and reliance on the Criminal Records Act 1991 (NSW)

The word "convicted" is not defined in the Motor Accident Injuries Act 2017 (NSW). The first defendant submits that the meaning of "convicted" in s 3.37(1) of the Motor Accident Injuries Act 2017 (NSW) is to be construed by adopting the definition of "convicted" in the Criminal Records Act 1991 (NSW). A definition of a word in another statute with different objects and subject matter cannot be adopted for the purposes of the Motor Accident Injuries Act 2017 (NSW), unless it is a definition in the Interpretation Act 1987 (NSW) which applies because there is no "contrary intention" (for the purposes of s 5(2) of the Interpretation Act) in the Motor Accident Injuries Act 2017 (NSW). There is no definition of "convicted" in the Interpretation Act. Section 6 of the Interpretation Act 1987 (NSW) provides that definitions that occur in a statute apply to the construction of that statute, except in so far as the context or subject matter otherwise indicates or requires.
In any event, there is no definition of "convicted" in the Criminal Records Act 1991 (NSW). There is a definition of "conviction" in the Criminal Records Act 1991 (NSW), which is directed to the express object of the Criminal Records Act 1991 (NSW) limiting the effect of a person's conviction for a relatively minor offence, or the effect of a conviction which is quashed or pardoned: Criminal Records Act 1991 (NSW) s 3(1), (2). Those purposes are entirely different to the purpose of s 3.37(1) of the Motor Accident Injuries Act 2017 (NSW). First, the purpose of s 3.37(1) is broader because it is concerned with the legal effect of a charge, not just a conviction. Secondly in a different respect it is narrower, as it is concerned only with a certain class of charges or convictions, being those for a "serious driving offence", rather than any conviction.
There is a definition of "conviction" in s 4(1) of the Criminal Records Act 1991 (NSW): "'conviction' means a conviction, whether summary or on indictment, for a offence and includes a finding or order which, under section 5, is treated as a conviction for the purposes this Act". Both s 4(1) and s 5 are expressed to apply "for the purposes of this Act", being the Criminal Records Act 1991 (NSW) (and hence not for the purposes of the Motor Accident Injuries Act 2017 (NSW)). Section 5 of the Criminal Records Act 1991 (NSW) provides that certain findings or orders of a court "are treated as convictions for the purposes of [the Criminal Records] Act". These are: (a) a finding that an offence has been proved or that a person is guilty of an offence without proceeding to a conviction; (b) a finding that an offence has been proved or that a person is guilty of an offence and the making of an order releasing the offender conditionally on entering into a recognizance to be of good behaviour; and (c) certain orders by the Children's Court other than an order dismissing a charge. The effect of picking up the definition in s 5(a) of the Criminal Records Act 1991 (NSW) and applying it in s 3.37(1) of the Motor Accident Injuries Act 2017 (NSW) (when that definition is expressed to be only intended to be for the purposes of the Criminal Records Act 1991 (NSW)) is that a person who obtains a s 10(1)(a) order is taken to have been convicted. Then s 3.37(1) renders the person disentitled to benefits. Reliance on the definition of "conviction" in the Criminal Records Act 1991 (NSW) and seeking to import it into the Motor Accident Injuries Act 2017 (NSW), subverts the first defendant's argument. The first defendant asks the Court to adopt for the purposes of the Motor Accident Injuries Act 2017 (NSW) a definition of "conviction" that demonstrates that he has been convicted of a serious driving offence and is disentitled under s 3.37(1).
In the attempt to build a construction of "convicted" in s 3.37(1) on the concept of a spent conviction, the first defendant has to reach beyond the definition and deep into the substantive provisions of the Criminal Records Act 1991 (NSW). So far as an order under s 10(1)(a) of the Crimes (Sentencing Procedure) Act 1999 (NSW) is concerned, the scheme of the Criminal Records Act 1991 (NSW) is to deem the order a conviction (s 5(a)) and then provide that the conviction is spent immediately after the order is made (s 8(2)). That has consequences as to disclosure of the spent conviction and its inclusion in a person's criminal history (Criminal Records Act 1991 (NSW) ss 12(a), (b), 13, 14). The first defendant relies on the particular consequence in s 12(c)(i) of the Criminal Records Act 1991 (NSW), which provides that a reference in another statute to a "conviction" is taken to be a reference only to any convictions of the person which are not spent. Section 3.37(1) does not refer to a "conviction", but to the fact that the person "has been convicted". Whether s 12(c)(i) of the Criminal Records Act 1991 (NSW) is applicable to the words "has been convicted" in s 3.37(1) of the Motor Accident Injuries Act 2017 (NSW) need not be resolved, for the following reasons.
The entire argument of the first defendant based on the meaning of "conviction" as a means for construing "has been convicted" in s 3.37(1) is mis-directed. The insurer's benefits were "not payable" as from the date when he "has been charged with … a serious driving offence that was related to the motor accident". The payments did not cease on the ground that the first defendant "has been ... convicted" within the meaning of 3.37(1). Nor has the insurer ever contended that the first defendant "has been convicted" within the meaning of those words in s 3.37(1). The Member correctly determined that the first defendant had not been convicted (Decision [41], [49]-[50]). That conclusion was not based on the provisions of the Criminal Records Act 1991 (NSW), but on the ordinary English meaning of "convicted' in its context in s 3.37 of the Motor Accident Injuries Act 2017 (NSW) (Decision [41], where the Member referred to the Dictionary definition). The insurer has at all times accepted that where a person is found guilty, but without proceeding to a conviction the matter is dismissed under s 10(1)(a) of the Crimes (Sentencing Procedure) Act 1999 (NSW), the person has not been convicted for the purposes of s 3.37(1). This adopts the ordinary English meaning of the words "has been convicted" in s 3.37(1), construing the words in their context. The conclusion is not reached because the conviction is spent within the meaning of the Criminal Records Act 1991 (NSW), or because the interpretation of "convicted" in s 3.37(1) of the Motor Accident Injuries Act 2017 (NSW) is affected by s 12(c)(i) of the Criminal Records Act 1991 (NSW). The provisions of the Criminal Records Act 1991 (NSW) in general have no relevance to the construction of the words "has been charged" in s 3.37(1).
The first defendant relies on s 5C of the Child Protection (Working with Children) Act 2012 (NSW) in support of the proposition that in order for a "conviction" or a "charge" to "live forever" there is a need for express statutory language. First, the construction advanced by the insurer does not seek to establish, or depend upon establishing, that a charge or conviction "lives forever". The first defendant's understanding to the contrary is a misunderstanding. The insurer's construction does contemplate that disentitlement effected by s 3.37(1) could continue forever. This is also true of disentitlement under other provisions of Division 3.3 of Part 3 of the Motor Accident Injuries Act 2017 (NSW)) which provide for weekly payments to cease permanently after a particular point of time, including where payments have been made for a specified number of weeks and certain circumstances are established, including that the injured person is mostly at fault. Secondly, the fact that express language is used in s 5C of the Child Protection (Working with Children) Act 2012 (NSW) not establish the claimed general principle of statutory interpretation that express words are required to achieve such a result. It is plain that s 5C(a) seeks expressly to displace the application of the Criminal Records Act 1991 (NSW). Section 5C(c) expressly displaces the operation of a similar provision in the Crimes Act 1900 (NSW). Section 5C(b) does not provide that a charge (as defined in the Child Protection (Working with Children) Act 2012 (NSW) lives forever, but rather that the fact that the charge was made remains part of a person's criminal record, notwithstanding the provisions of the Criminal Records Act 1991 (NSW). The example does not assist, because in the present case it is the legal effect of the charge, put in place by s 3.37(1), that potentially may be permanent, not the charge itself.
The further confusion introduced by the first defendant's reliance upon the Criminal Records Act 1991 (NSW) is in the notion that a charge may be "spent" in a similar fashion to a conviction (as defined in the Criminal Records Act 1991 (NSW)) being spent. Accepting that for the purposes of the Criminal Records Act 1991 (NSW) a deemed conviction under s 10(1)(a) is spent immediately after the order is made, it does not follow that the charge which led to the order is "spent" for the purposes of the Criminal Records Act 1991 (NSW). A charge may be disposed of by a court outcome that brings a criminal proceeding to an end. That is true of a court order made under s 10(1)(a) of the Criminal (Sentencing Procedure) Act.
The construction advanced by the insurer does not produce an illogical outcome that should be avoided. It does not exclude "any and all claimants" for benefits "if they were ever charged, no matter whether the charge was reasonable or unreasonable, and no matter the outcome of the case". Disentitlement under s 3.37(1) is circumscribed in a number of ways. It applies only to a claimant who is an injured person in receipt of statutory benefits under Pt 3 of the Motor Accident Injuries Act 2017 (NSW) who has been charged with "a serious motor driving offence [as defined in s 3.37(5)] that was related to the motor accident [as that phrase is defined in s 3.37(3)]" and who does not fall within the categories of persons whose disentitlement is lifted under s 3.37(2).
It is common ground that one does not reach s 3.37(2) unless there is disentitlement under s 3.37(1). This has not been omitted from the insurer's submissions.
It does not assist simply to assert that the construction and application of the words "has been charged" in s 3.37(1) is resolved by the fact that the Member found that proceedings for a serious driving offence are not pending and that once the s 10(1)(a) order is made and it "is as though there had never been a charge at all". The Member asked herself the wrong questions. First, it is not part of s 3.37(1) to ask whether proceedings are pending against a person. Secondly, even if the s 10(1)(a) order disposed of the charge so that it was no longer in existence from the date of the order, the charge had already done its work for the purposes of s 3.37(1), of effecting disentitlement. Thirdly, the s 10(1)(a) order does not remove the fact that a charge was made. The charge is not "spent" in the sense of a spent conviction under the Criminal Records Act 1991 (NSW). Where a conviction is spent there is no factual consequence that the conviction was never made, or that the charge was never made. In any event there is no necessity to make out this third point in order to establish that disentitlement occurred.
The second reading speech for the Motor Accident Injuries Bill 2017 (NSW) makes no express reference to clause 3.37. It does not follow that s 3.37 is to be ignored. The first defendant's submission suggests that the omission of a reference to clause 3.37 in the second reading speech supports an assumption that the only exclusions from entitlement to benefits under Pt 3 of the Motor Accident Injuries Act 2017 (NSW) consist in the limitation of sustained benefits for persons at fault, and reduction of benefits for persons partly at fault. To take that approach is to pretend that s 3.37 is not in the Motor Accident Injuries Act 2017 (NSW).
The Motor Accident Injuries Act 2017 (NSW) does not require the insurer or any other person to "be satisfied", or otherwise prove, that a person is disentitled under s 3.37(1). This is a provision that operates of its own force, without the insurer making any decision or exercising judgment. It is correct to say that the words identify a specific event or act of charging in the past, that can be objectively determined, rather than a continuous state of being subject to a charge. The state of being disentitled is what continues, unless it is lifted by one of the events described in s 3.37(2).
The Member correctly so held (Decision [42]). The phrase "or convicted" identifies a later point of time from which disentitlement may operate. This assists in creating certainty as to when the disentitlement occurs. Where disentitlement runs from the time when a person has been charged, it does not follow that the person is disentitled "for all time". If the events described in s 3.37(2) occur, they lift the disentitlement so that benefits are payable from the date when the person was charged. A statutory benefit is in any event only payable for the relevant statutory period of time. In both s 3.37(1) and 3.37(2) it is irrelevant whether the charge is still pending.
There is no basis in s 3.37 for a construction where disentitlement triggered by having been charged peters out unless the person is convicted, whereupon the conviction triggers a fresh period of disentitlement. Read as a whole, s 3.37(1) provides that benefits are not payable "after" the person has been charged "or" after the person has been convicted. There is no suggestion in s 3.37(1) that disentitlement by reason of having been charged ceases if the person is not convicted. Section 3.37 needs to be read as a whole. Sections 3.37(1) and 3.37(2) have to be read together.
The first defendant's reference to s 172 of the Civil Procedure Act 1986 (NSW), which provides that proceedings for an offence are to be commenced by the issue and filing of a court attendance notice.
The first defendant's submission that there was at the time of the Magistrate's determination under s 10(1)(a) no longer any charge in existence is not to the point. There is no requirement in s 3.37(1) that the charge remains pending or continuing. All that is required is that the person has been charged. Moreover, the point of time at which the magistrate made the s 10(1)(a) order is immaterial. The point of time at which the charge was made is material in s 3.37(1), because it fixed the time "after which" disentitlement operated.
The insurer contends that the Member fell into error in finding that when an order is made under s 10(1)(a) it is "as if there had never been a charge at all" (Decision [52]). If no charge had been laid, the Magistrate would not have had jurisdiction to make an order under s 10(1)(a). The first defendant's contention that the making of an order under s 10(1)(a) is similar to the issue of certiorari by this Court quashing the charge is even more misconceived. A charge is not "voided" by the decision of the criminal court. The charge is the process which commences the criminal proceeding. All that needs to be established for the purposes of s 3.37(1) is that the charge was made. The Member was correct to accept that as a "historical fact" the charge was made (Decision [52]). That is all that is required.
The first defendant relies on s 3.37(4) for the proposition that s 3.37(1) is to be interpreted as requiring the "existence of proceedings which deal with the charge" rather than that the person "has been charged". The second limb of s 3.37(4) states that a person "is considered to have been charged when those proceedings were commenced". Section 3.37(1) provides that a person is disentitled "after" the person has been charged. This means that after the proceeding has been commenced the person is disentitled. The first limb of s 3.37(4) states that a person is considered to have been charged with a serious driving offence if proceedings for a serious driving offence are pending against the person. The first limb does not put in place a requirement that charges remain pending in order to keep the disentitlement in place. Nor does it indicate that the disentitlement does not take effect until the charges are no longer pending. To construe the first limb in this way would be inconsistent with the second limb, which indicates that disentitlement was triggered after the charges were first made, commencing the proceedings. The first limb simply indicates that the fact that proceedings are pending is a way of testing whether or not charges have been made.
If the first limb of s 3.37(4) were interpreted in the manner advanced by the first defendant, "has been charged" is not satisfied at the moment that proceedings commenced, and is not satisfied until charges are no longer pending, for whatever reason. This does not assist the first defendant, because disentitlement has already been triggered. Perhaps the first defendant's contention is that "has been charged" within s 3.37(1) must occur over and over again on a daily basis. This entails that the charges must be pending. However, disentitlement is triggered when the person has been charged, at one moment in time, which is when the proceedings commence. There is no need for a person to have been charged over and over again, so as to keep triggering disentitlement. In order to restore entitlement to benefits a person needs an event that terminates disentitlement, not an event that triggers it again. On the first defendant's construction, termination of disentitlement occurs as soon as charges are no longer pending, for any reason, and this effect is secured by the first limb of s 3.37(4) read with s 3.37(1). The problem with this construction is that it does not sit harmoniously with s 3.37(2). The events that terminate disentitlement are described carefully in s 3.37(2). The first defendant's interpretation renders s 3.37(2) otiose. It assumes that disentitlement peters out unless it is constantly re-triggered by the charge remaining pending. But s 3.37(2) makes it clear that the work done by the charge at the commencement of the proceedings does not lose its effect in this way. What is required is an event that terminates disentitlement, restoring entitlement, not an event terminating the charge.
The events required to terminate disentitlement are carefully defined in s 3.37(2). Only acquittal or discontinuance (with the bracketed exception) will do. Had it been intended that termination of disentitlement is to occur when charges are no longer pending, that could have been said in so many words. The bracketed words in s 3.37(2) indicate that even if proceedings for a serious driving offence are discontinued because the person has pleaded guilty to another serious driving offence, the disentitlement triggered in respect of the charge for the first offence is not terminated. This is a case where the charge for the first offence is no longer pending but the disentitlement continues. This is true for other scenarios not included in s 3.37(2) as events that terminate disentitlement. One of those scenarios is an order under s 10(1)(a) of the Crimes (Sentencing Procedure) Act 1999 (NSW) finding the person guilty of an offence, without proceeding to a conviction, and directing that the relevant charges be dismissed.
The first defendant contends that the insurer's construction means that a person is "charged with an offence for all time" and this means a person is "disentitle[d] … for all time". These two ideas are conflated. The first defendant contends that in order for s 3.37(4) to do work it must require a charge to be pending because otherwise under s 3.37(1) a person who had been charged with an offence at one point in time is considered to have been charged with the offence for all time.

Section 3.37(2)

Ultimately, the first defendant's case is that s 3.37(2) is "irrelevant" because s 3.37(1) never triggered entitlement. This submission should not be accepted, since s 3.37 needs to be read as a whole. Section 3.37(2) demonstrates that the disentitlement effected by s 3.37(1) may in some cases be terminated, so that it is not permanent. By specifically providing for the lifting of disentitlement in the cases of acquittal or discontinuance (with the bracketed qualification), s 3.37(2) contemplates that merely having been charged suffices to disentitle the person to benefits, permanently. That answers much of the first defendant's argument as to the construction of s 3.37(1).
Nonetheless the first defendant has made submissions as to the construction of s 3.37(2). The following responds. The error in the decision, of construing s 3.37(2) as lifting disentitlement in any circumstances where a charge is no longer pending, is at [52], [63] of the Decision. The first defendant contends that the question is not whether s 3.37(2) covers a s 10(1)(a) order, but whether s 3.37(2) is "exhaustive" of the matters that exclude or lift disentitlement. However these are the same question, as to the scope and applicability of s 3.37(2). Once the first defendant concedes that s 3.37(2) does not cover the s 10(1)(a) order or the circumstances of this matter, as the first defendant has conceded, the question of the scope of s 3.37(2) is resolved. There is no remaining question as to whether s 3.37(2) has a further reach such that it does apply in the case of a s 10(1)(a) order. Inconsistently, the first defendant submits that s 3.37(2) is inapplicable, and that s 3.37(2) impliedly is applicable.
If it had been intended to include other events that lift the disentitlement, they would have been listed in s 3.37(2). Effectively, the first defendant's submission that s 3.37(2) is not "exhaustive" invites the Court to imply in s 3.37(2) additional events which lift disentitlement. This is masked as a claim that other subsections of s 3.37 enable that implication to be made in s 3.37(2). However, none of the other subsections serves a purpose of expanding upon s 3.37(2), and none can be read in that way. Subsection (5) is concerned with defining what is a "serious driving offence". Subsection (3) is concerned with clarifying when a serious driving offence is "related to the motor accident". Subsection (4) is concerned with the point of time when a person has been charged, namely at the time when the proceeding was commenced.
The first defendant contends that the word "if" in s 3.37(2) carries a quality of non-exhaustiveness of the list of events described thereafter, and that it would be necessary to use the words "only if" to ensure that the list is exhaustive. An argument of this nature was rejected by the Court of Appeal in the very authority upon which the first defendant relies. The Court held that the labels "exhaustive" and "non-exhaustive" did "not fit neatly into [the] analysis" of a subsection in a liquor licensing statute providing: "a person is taken to have a financial interest in a hotelier's licence if the person is entitled to receive …[setting out two criteria]". Further, the word "if" had to be construed in its context, and "Parliament made itself tolerably and sufficiently clear that, subject to subs (6), subs (5) spells exhaustively the criteria …"; describing the argument as "an attempt to walk around" the criteria. The same response should be made to the first defendant's argument in the present case. The word "if" does not indicate that the list of events described in s 3.37(2) is non-exhaustive.
Inconsistently with the contention that s 3.37(2) is irrelevant, the first defendant contends that it creates two different classes of "claimants whose charges are resolved" (DF[45]). The first class consists in persons falling within either of the two categories specified in s 3.37(2). They have the protections in paragraphs (a) and (b) of s 3.37(2) (entitlement to benefits revived as from the date of the charge, and the limitation period for recovery proceedings re-commences). In the second class are persons who do not fall within the categories s 3.37(2) and so do not have those protections. It is unlikely to have been the legislative intention to create different regimes of this kind for two different classes of claimants. If the second class consists in those who are impliedly covered by s 3.37(2), it is difficult to see why they do not also impliedly have the benefit of paragraphs (a) and (b). If the second class consists in those who were never disentitled under s 3.37(1), then the protections are not capable of being applied, because, on the first defendant's analysis, there has been no period of disentitlement. The first defendant's argument is that if at any time charges are pending then s 3.37(1) is not triggered, so there can be no period of disentitlement. On this analysis, a claimant whose charge is pending until it is disposed of by acquittal or discontinuance is never disentitled under s 3.37(1) and so does not need to rely on s 3.37(2). Yet these claimants fall within the second class, which according to the first defendant does not enjoy the protection of paragraphs (a) and (b) of s 3.37(2). However the clear legislative intention is that such claimants should enjoy those protections. This reinforces the fact that s 3.37(2) is not otiose, as the first defendant accepts (DF[45]). It does the work of specifying the basis on which disentitlement is lifted, and provides certain protections for persons who were disentitled after the point of time when they were charged, but whose benefits resume when they are acquitted or the proceedings are discontinued.
Curiously, despite the submission as to the two classes of claimants, the first defendant maintains that where a s 10(1)(a) order is made the protections in paragraphs (a) and (b) of s 3.37(2) apply. That is inconsistent with the submission that there is no disentitlement in such a case because the charge was pending until disposed of. At this point, the first defendant's submissions change focus from a charge to a conviction as the circumstance that disentitles a person under s 3.37(1). With respect, this confuses the analysis and the submission. It is now argued that a charge "evaporates" on account of the operation of the Criminal Records Act 1991 (NSW), rather than on account of the disposal of the charge by the making of the s 10(1)(a) order itself. While the Criminal Records Act 1991 (NSW) provides that a s 10(1)(a) order is spent immediately after it is made, other convictions are spent only after completion of the "crime free period" as defined in the Criminal Records Act 1991 (NSW). Here the first defendant seems to argue that even where the person "has been convicted" within s 3.37(1) the conviction is spent, albeit after the "crime-free period" (under the Criminal Records Act 1991 (NSW)) and so the disentitlement is lifted by its being spent rather than by s 3.37(2). However, this submission does not assist the first defendant. Section 3.37(2) is only concerned with lifting disentitlement where there is an acquittal or discontinuance, not with lifting it when there is a conviction (whether spent or not).
In response to the first defendant's complaint that the insurer has not addressed the question whether certain orders other than a s 10(1)(a) order fall within the words "discontinued (…injury)" in s 3.37(2), the insurer says that the present proceedings and the issue of construction before the Court do not call for such submissions. It is plain that where a court finds the person guilty of an offence and without proceeding to a conviction makes an order dismissing the charge, that the proceedings have not been "discontinued". The charge has resulted in a court outcome. Similar kinds of outcomes, such as an order finding a person guilty and discharging the person on entering into a recognizance or good behaviour bond, all involve a court outcome to a proceeding rather than its discontinuance. Beyond accepting this, there is no burden lying on the insurer to compile a list of circumstances that do or do not amount to proceedings being "discontinued" within s 3.37(2).

Section 3.37(4)

The insurer has not sought to read words into s 3.37(4). The insurer has sought to clarify the meaning of s 3.37(4), referring to both its first and second limbs. It fixes the time when the person has been charged as the time when the proceedings were commenced. It is still the case that the person has been charged if the proceedings remain pending for some time. However, that does not change the fact that at the point of time when the proceedings commence the person "has been charged", and at that time the words in s 3.37(1) are satisfied. For this submission the insurer relies on words which are in the second limb of s 3.37(4): "the person is considered to have been charged when those proceedings were commenced". The words "has been charged" do not need to be satisfied over and over again for an indefinite period of time. The use of the word "pending" in s 3.37(4) does not make this necessary (cf DS[59]). If that had been the legislative intention, s 3.37(1) would have been drafted to read: "are not payable to an injured person after if the person has been charged with, and proceedings are pending for, or the person has been convicted of, a serious driving offence that was related to the motor accident".
It is not "already clear" from s 3.37(1), that the words "has been charged" are satisfied at the point of time of commencement of the proceedings (cf DS[60]). It is only clear that disentitlement occurs "after" a point of time when the person "has been charged …". Section 3.37(4) clarifies that "after" occurs when the charge is first made, commencing the proceedings for the offence charged. On the first defendant's analysis, one never knows when "after" is reached, so as to effect the disentitlement. The first defendant offers clarification by reading into s 3.37(1) a point of time when the charges are no longer pending. On that approach, s 3.37(4) fails to clarify the point of time when the person has been charged. It is the first defendant's construction, not the insurer's, that gives s 3.37(4) no work to do, or to put it more bluntly, that ignores the second limb of s 3.37(4). Further, on the first defendant's approach, "after" is reached only at the time of a court order such as conviction or acquittal or other order disposing of the charge. As submitted above, that is not the legislative intention. Moreover, it is not open to the first defendant to contend that the insurer illegitimately inserts the words "are commenced" into s 3.37(4), when s 3.37(4) contains the words "were commenced".
The first defendant seeks support from the words "considered to have been" in s 3.37(4). It is common ground that these words operate as a part of a deeming provision.
The words "are pending" in the first limb of s 3.37(4) are concerned with what counts as evidence that a person has been charged. This is evidence that a proceeding for a serious driving offence is pending against a person. This first limb does not deem what is point of time at which the words "has been charged" in s 3.37(1) are first satisfied. The second limb of s 3.37(4) does that. The point of time is critical because it is only "after" that point of time that disentitlement occurs.
The first defendant's submission is that the critical point of time is when the proceedings have ended rather than when they commenced and they end when a final determination is made, whether it be a conviction or an acquittal. On this basis the words "has been charged" in s 3.37(1) are not satisfied until the charge is no longer pending. As contended above, this is to ignore the second limb of s 3.37(4). The first defendant replaces the words "after the person has been charged" in s 3.37(1) with the words "after charges are no longer pending against the person". This is not supported by s 3.37(4). It is inconsistent with s 3.37(4).

Conclusion

Division 3.5 in Part 3 of the Motor Injuries Act 2017 (NSW) ('the Act') sets out restrictions and limitations on statutory benefits. One limitation is found in s 3.37. Central to this judicial review is the proper construction of s 3.37 of the Act.
Section 3.37 of the Act is headed "no statutory benefits payable to an injured person who commits a serious driving offence". Section 3.37(1) of the Act is intended to restrict or limit statutory benefits. It disentitles an injured person to payment of statutory benefits under Part 3, if the circumstances described in s 3.37(1) occur. Section 3.37(2) then limits the continuation of that disentitlement by carving out circumstances that lift it. Focusing on the opening words in s 3.37(1), "after the person has been charged with" fixes the point of time at which the disentitlement commences. Section 3.37(2) is concerned with events which may occur after that point of time. If the person has at any time been charged with a serious driving offence that was related to the motor accident, from that point of time the person is not entitled to statutory benefits. The status of disentitlement may end, or be lifted, in accordance with s 3.37(2).
The parties agree that s 3.37 should be read as a whole and the phrases "acquitted of the offence", "charged with or convicted" and "the proceedings are so discontinued" should be given their ordinary English meaning. The expressions "charged with" or "convicted" in s 3.37(1) are disjunctive. It is common ground that the first defendant was charged with serious driving offences specified under s 3.37(5) of the Act.
The words "or convicted" in s 3.37(1) have "work to do". The words provide an alternative point of time at which benefits cease to be payable. Given that the first defendant's benefits are payable on a weekly basis, precision in fixing the date is important. There may be circumstances where the time at which a person is charged is not known, whereas the time of being convicted is known. As is conveyed by the word "or", the phrase "or convicted of" (emphasis added) operates as an alternative to "has been charged".
Focusing on the opening words in s 3.37(1), "after the person has been charged with" fixes the point of time at which the disentitlement commences. Section 3.37(2) is concerned with events which may occur after that point of time. If the person has at any time been charged with a serious driving offence that was related to the motor accident, from that point of time the person is not entitled to statutory benefits. The status of disentitlement may end, or be lifted, in accordance with s 3.37(2).
The words "has been charged with … a serious driving offence" are in the past tense. They only require that the person has been charged in the past. The words do not require that the person remains charged at any particular later point of time.
The Member correctly stated that the first defendant was charged with an offence (actually two offences). He pleaded guilty to both offences for which he was charged in the Local Court. For each offence, the Magistrate found the first defendant guilty but without proceeding to a conviction dismissed the matter pursuant to s 10(1)(a) of the Crimes (Sentencing Procedure) Act 1999 (NSW) That means that the offences were proved, findings of guilt were made, but no convictions were recorded. The matters were not dismissed.
The Member rejected the first defendant's submission that s 3.37(1) refers to the historical fact of a charge having been made, regardless of whether the charge continues in existence: Decision [38]. She tended to conflate the concept of "is acquitted of the offence charged" in s 3.37(2) with the question whether or not the person has been "convicted" in s 37.3(1): Decision at 38.
So far as s 3.37(2) is concerned, the first defendant was not acquitted of the offences with which he was charged. The proceedings were not discontinued. As neither of these conditions were met, s 3.37(2) does not apply. The Member correctly concluded since there was no acquittal that s 3.37(2) did not apply.
However, she reached a conclusion that the first defendant was not disentitled under s 3.37(1). The Member's reasoning for this conclusion is set out in [50] to [52]. She agreed with the insurer that the first defendant was found to be guilty, but no conviction was recorded. Then she stated: "…Does the phrase "convicted of' in s 3.37(1) refer to the finding of guilt by the Magistrate or depend on the sentence and whether a conviction is recorded or not? I have not been taken to any case law on the point, by in my view s 10(1)(a) distinguishes between a finding of guilt and the decision to convict. In Mr Hulse's case the Magistrate decided that Mr Hulse's matter was an appropriate case for a s 10(1)(a) order. 51. The effect of the order is that there is no conviction of Mr Hulse on the charges laid against him. There is no conviction because the charges have been dismissed. 52. The charges therefore will not appear on Mr Hulse's criminal record but there is a record of the proceedings and the outcome of the dismissal. But by the Magistrate dismissing the charges, there is effectively no charge in existence. The effect of the dismissal is, in my view, as if there had never been a charge at all other than the "historical fact" of a charge being laid recorded somewhere in the police files and on the court's records."
I disagree that the Member's view that the Magistrate by dismissing the charges, meant that there is effectively no charge in existence. The member erred in construing s 3.37(2) as lifting the disentitlement in any circumstances where a charge was no longer pending. The charge remained when the offence was proven, but s 10(1)(a) provides that no conviction be recorded.
Secondly, the bracketed words in s 3.37(2) make it clear that it is irrelevant that proceedings on one charge are discontinued because the claimant has pleaded guilty to a charge for another serious driving offence that contributed to the injury. In those circumstances the disentitling effect of s 3.37(1) continues to operate notwithstanding that the charge referred to in s 3.37(1) is no longer pending. The charges for each of the offences referred to in the bracketed part are distinct. They may be made on different dates. None of that affects the intention that "the offence charged" in s 3.37(2) is a reference to the offence "the person has been charged with" in s 3.37(1). In short, s 3.37(2) makes it very plain that there is at least one circumstance where proceedings on that charge are discontinued but s 3.37(1) prevents payment of statutory benefits for an indefinite period after the charge was made. The construction of s 3.37(2) adopted in the decision is inconsistent with the unambiguous plain text of s 3.37(2). The construction adopted overrides the exception in the bracketed words, because it allows discontinuance on account of a guilty plea for another serious driving offence, to mean that the proceedings under the charge are no longer pending and hence the statutory benefits are payable from the date when the person was charged. It is not the legislative intention that discontinuance on account of a guilty plea for another serious driving offence is a circumstance that has the effect of reinstating the entitlement to the statutory benefits.
The construction adopted in the decision renders s 3.37(2) otiose. The precise identification of two circumstances where entitlement to statutory benefits is reinstated, is replaced by a broad test of "proceedings are no longer pending". That test is said to flow from s 3.37(4). If s 3.37(4) states the test as to when disentitlement by force of s 3.37(1) stops or is lifted, then there would have been no need to include s 3.37(2).
The Member fell into error in the Decision at [43], in holding that while the first defendant was charged with a serious driving offence, "there are no longer proceedings pending against him and therefore the first option in s 3.37(1) is not met".
The purpose of s 3.37(4) is to fix the time when the disentitlement occurs. This date is critical throughout s 3.37. After the date of the charge, it is lawful to cease paying the statutory benefits.
Nor does s 3.37(4) alter the substance of s 3.37(1) by defining "has been charged" to mean "has been and remains charged in existing proceedings". That reads into s 3.37(1) the additional words "and remains" and "in existing proceedings". Section 3.37(4) is focused upon the past, and seeks to clarify when a person "has been charged" in the past.
The Member's misconstruction and misapplication of s 3.37 of the Motor Accident Injuries Act 2017 (NSW) is an error of law. The error appears on the face of the record of the PIC. Insofar as it is necessary to show that the error materially affected the decision, the error deprived the insurer of the possibility of a successful outcome in the referral.
The Member erred in holding that if there are "no longer proceedings pending against [the first defendant]" then the words "has been charged with... a serious driving offence" in s 3.37(1) are not met: Decision [43]. That is not an available construction of the words in s 3.37(1). According to their ordinary English meaning the words refer to a past act of charging a person with an offence. They do not refer to a continuous state of being charged that occurs when the PIC determines the referral.
If the first defendant's construction were correct, there would have been no need to include s 3.37(2), which demonstrates that only certain clearly defined and exhaustive events bring the disentitlement to an end. One of those events is acquittal. Section 3.37(1) needs to be construed so that it is harmonious with s 3.37(2). Moreover, it is not a question of what brings the charge to an end. It is a question of what is capable of bringing to an end the disentitlement (which was triggered by the discrete event of the charge).
The insurer contended that a person may be disentitled for all time, because the person has been charged at one point in time and the disentitlement is not terminated pursuant to s 3.37(2). The first defendant's construction appears to produce unworkable or even absurd consequences. It entails that a person can only be permanently disentitled if the charge remains permanently pending against the person, and since a charge is always disposed of in some way, and is never permanently pending against a person, a person can never be permanently disentitled (unless the person is convicted). The first premise is erroneous, mis-applying s 3.37(4) within s 3.37(1). The conclusion is erroneous since it is the legislative intention that some persons who have been charged but not convicted will be permanently disentitled.
The fact that disentitlement under s 3.37(1) or similar provisions in Div 3.3 may continue permanently does not demonstrate that the insurer's construction of s 3.37 is "illogical". In the circumstances where the first defendant has been discharged under a conditional release order, I agree that the legislative outcome may be considered to be harsh, but I am obliged to interpret the words as they are, harsh it may be, because that is considered the legislative intention.
The court does not have a mandate to "rewrite the statute", and the court must proceed with caution. The first defendant's references to various statutes are not persuasive. The first defendant refers to the Criminal Records Act 1991 (NSW). The defendant does not define the word "convicted". It's purpose is different to the purpose of s 3.37(1) of the Motor Accident Injuries Act 2017 (NSW). First, the purpose of s 3.37(1) is broader because it is concerned with the legal effect of a charge, not just a conviction. Secondly in a different respect it is narrower, as it is concerned only with a certain class of charges or convictions, being those for a "serious driving offence", rather than any conviction.
The first defendant is in substance no more than disagreeing with the legislative policy behind s 3.37 in choosing the making of a charge for a serious driving offence that was related to the motor accident as the point of time after which disentitlement commences. Complaint could just as easily be made as to the legislative policy behind disentitlement after a certain period of time where the accident is established to have been caused wholly or mostly by the fault of the injured person; or as to disentitlement to loss of earnings or earning capacity after the first anniversary of the injured person's reaching retiring age. However, disagreement with the merits of a legislative policy behind a provision does not mandate a construction of the provision that is not available. The making of a charge is an objective fact. The circumstances where a charge has been made are further clarified by s 3.37(4). Section 3.37(1) does not pose any question as to whether the charge is reasonable, any more than it poses a question as to whether a conviction is reasonable. Whether a charge is reasonable is not justiciable. The outcome of the charge is not made entirely irrelevant. Pursuant to s 3.37(2), certain outcomes are relevant in that they lift the disentitlement. The first defendant pleaded guilty to two offences. The offences were proved. An order under s 10(1)(a) of the Crimes (Sentencing Procedure) Act 1999 (NSW) does not fall into either category of being acquitted.

Result

There are errors of law on the face of the record.
The decision of the Member dated 14 December 2022 is set aside.
The proceedings are remitted to the President, Personal Injury Commission to be dealt with according to law.

Costs

Costs are discretionary. Costs normally follow the event. The first defendant is to pay the plaintiff's costs.

THE COURT ORDERS THAT: 1. The decision of the Member dated 14 December 2022 is set aside. 2. The proceedings are remitted to the President, Personal Injury Commission to be dealt with according to law. 3. Costs are discretionary. Costs normally follow the event. The first defendant is to pay the plaintiff's costs.

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: 22 February 2024

Civil Procedure Act 1986(NSW)s 172

(Sentencing Procedure) Act 1999(NSW)

(Criminal Records Act 1991(NSW)ss 12(a), (b), 13, 14).

While the Criminal Records Act 1991(NSW)

Motor Injuries Act 2017(NSW)

Criminal Records Act 1991(NSW)ss 3, 4, 5, 8, 12, 13, s 3(1), (2).

Motor Accident Injuries Act 2017(NSW)ss 7.1, 7.36, 7.42

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