Pinarbasi v AAI Ltd t/as GIO

The parties' cases

1. There was no issue as to the Court's power to make the orders sought under the Civil Procedure Act 2005 (NSW) and the Uniform Civil Procedure Rules 2005 (NSW): s 98 and Pt 42.
2. Mr Pinarbasi's case had raised two issues. The first, the claimed implied obligation falling on the delegate to give reasons for the decision made and the second, whether the delegate had considered an alleged error raised by the insurer's application, which was incapable of rendering the assessor's certificate incorrect in a material respect, given the assessor's statutory functions.
3. Mr Pinarbasi failed on the first issue, but succeeded on the second, about which the President did not seek to be heard.
4. Mr Pinarbasi's case was that costs orders being compensatory and the insurer not having consented to the orders he sought, it was necessary for him to pursue judicial review proceedings in order to pursue the statutory compensation to which he was entitled.
5. That the insurer had filed a submitting appearance did not preclude the order sought: Mahenthirarasa v State Rail Authority of New South Wales (No 2) (2008) 72 NSWLR 273; [2008] NSWCA 201 at [23]. That requires consideration of the context in which the submitting appearance was filed: Kisimul Holdings Pty Ltd v Clear Position Pty Ltd (No 2) (2014) 86 NSWLR 645; [2014] NSWCA 317 at [14].
6. It was the insurer who had successfully sought the review of the decision of the medical assessor who had determined that Mr Pinarbasi had suffered injury in the accident which was not minor. It had a vested interest in the delegate's decision, but had not appeared in this Court to defend the decision, which had accepted the case the insurer had advanced.
7. It was in those circumstances just that the insurer bear the costs which had to be incurred, in order to have the delegate's decision successfully reviewed.
8. The insurer's case was that it was relevant that it had not appeared to oppose the orders sought and even if it had consented, the Court would still have had to be satisfied that the orders Mr Pinarbasi sought, could be made. It was also relevant that it was the President who successfully joined issue with Mr Pinarbasi over the claimed implied obligation to give reasons for the decision the delegate had made.
9. The insurer contended that it had not been responsible for the delegate's erroneous decision. While it had sought the outcome which the delegate had arrived at, the path by which it was reached was the delegate's. The case it had advanced was more nuanced than the conclusions which the delegate had arrived at, which did not adequately engage with the case it had advanced in relation to the assessor's errors. They had included a claimed failure to give adequate reasons, including the actual path of reasoning which led to her decision, which had not been addressed by the delegate.
10. In those circumstances the insurer's decision not to appear to oppose the orders sought in this Court, was submitted to have been a clear acknowledgment that the delegate's decision was inadequate. Further, there was nothing which the insurer could have done to avoid the need for Mr Pinarbasi to bring these judicial review proceedings.
11. Filing a submitting appearance in the circumstances as it had, should thus preclude the costs order sought: Highland v Labraga (No 3) [2006] NSWSC 871 at [23] and Midson v Workers Compensation Commission (No 2) [2017] NSWSC 147 at [21] and [29]-[30].
12. In this case, even if the insurer had consented to the orders sought, the matter would still have had to proceed to hearing. It proceeded as it did, because the President appeared as contradicter. The insurer could not have consented to that aspect of the case on which the President succeeded, because it was wrong and it was also not responsible for the delegate's misconception about the applicable law.
13. Accordingly, no costs order should be made against it.

The costs order sought should be made

1. Despite the case advanced for the insurer, I am satisfied that justice requires that the costs order which Mr Pinarbasi seeks be made.
2. The parties were bound by the obligations imposed on them by the Civil Procedure Act in relation to the overriding purpose there specified, the just quick and cheap resolution of the real issues in the proceedings: s 56.
3. Given that the insurer accepted that the delegate had misconceived the law by which she was bound, in undertaking the President's gateway review function, the appropriate course, consistent with this obligation, was not merely for the insurer to file a submitting appearance. Instead, it should have consented to orders quashing the delegate's orders and joined with Mr Pinarbasi in advancing a brief submission about the delegate's error, which accepted the necessity of the delegate's decision being quashed, as it did for the first time in resisting the costs order sought.
4. It is long settled that the mere filing of a submitting appearance does not denote its consent to any order: Nyman v Valmas [1997] NSWCA 235 at 5.
5. Like in Mahenthirarasa, in this case a concession by the insurer that it was reasonably open for the Court to accept that the approach adopted by the delegate had been legally flawed, would thus undoubtedly have limited the time of the hearing and the resulting costs incurred. There is now no issue that it was common ground between the parties below, that the delegate's decision had to be quashed, given the error into which she had fallen, a matter about which the President did not seek to be heard: at [13]. That should have earlier been revealed.
6. It was clearly the insurer's decision not to appear at the hearing to disclose its position to the Court, which led to the President seeking to be heard on the second issue raised by Mr Pinarbasi, in relation to the implied obligation to give reasons. Ordinarily when there is a contradicter, the President would file a submitting appearance.
7. Given the error into which it was common ground that the delegate had actually fallen, it would thus have been unnecessary for this second aspect of Mr Pinarbasi's case to be heard or determined, had the insurer consented to the orders Mr Pinarbasi properly sought in the circumstances, given the delegate's acknowledged error. The President would then not have had to appear as contradictor to be heard on that issue, which could have had no impact on the orders which the Court had to make in any event, given the delegate's error.
8. It is that situation which has persuaded me that it is just for the costs order Mr Pinarbasi sought to be made, that order being approached, as it must be, from his perspective: Latoudis v Casey (1990) 170 CLR 534; [1990] HCA 59 at 542-543.

Orders

1. For the reasons given I thus further order that: 1. The insurer bear Mr Pinarbasi's costs of these proceedings, as agreed or assessed. 2. The matter be remitted to the President of the Personal Injury Commission of New South Wales to be dealt with according to law.

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 March 2023