AAI Limited t/as GIO v McCrohon - [2025] NSWPIC 190

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	AAI Limited t/as GIO v McCrohon [2025] NSWPIC 190
CLAIMANT:	Louis John McCrohon
INSURER:	AAI Limited t/as GIO
SENIOR MEMBER:	Brett Williams
DATE OF DECISION:	1 May 2025
CATCHWORDS:	MOTOR ACCIDENTS - Motor Accident Injuries Act 2017 (MAI Act); statutory benefits disputes involving sections 1.9, 3.1, 3.11, 3.28, and 3.39 of the MAI Act and section 30 of the Civil Liability Act 2002; factual dispute about circumstances of accident; proceedings settled between the parties; costs order sought by claimant under section 8.10(4) and by insurer under section 8.3(4) of the MAI Act; San v Rumble (No 2), Ho v Professional Services Review Committee No 295, AAI Ltd trading as GIO v Moon, and Grinter v CIC Allianz Insurance Limited applied; Held – exceptional circumstances exist that justify payment of the claimant’s costs; payment of the reasonable and necessary legal costs incurred by the claimant in connection with the proceedings in accordance with section 8.10(4)(b) of the MAI Act permitted; payment of the insurer’s reasonable legal costs permitted.
DETERMINATIONS MADE:	Exceptional circumstances exist that justify payment of the claimant’s costs; payment of the reasonable and necessary legal costs incurred by the claimant in connection with the proceedings in accordance with s 8.10(4)(b) of the MAI Act permitted. Payment of the insurer’s reasonable legal costs permitted under s 8.3(4) of the MAI Act.

REASONS AND ORDERS

These proceedings were commenced by AAI Limited t/as GIO (insurer) and relate to a claim for statutory benefits made by Louis McCrohon (claimant) under the Motor Accident Injuries Act 2017 (MAI Act) following an accident at Goulburn on 28 January 2021 (accident).
The proceedings are listed for hearing on 13 May 2025, and involve disputes about:
(a)    whether ss 1.9 and 3.1 of the MAI Act are engaged;
(b)    whether, for the purposes of s 3.11 and s 3.28 of the MAI Act, the accident was caused wholly or mostly by the fault of the claimant;
(c)    the application of s 3.39 of the MAI Act, and
(d) whether s 30 of the Civil Liability Act 2002 applies to the claim.
In addition to these legal disputes, there is a factual dispute about the circumstances in which the accident occurred.
Preliminary conferences were conducted on 4 November 2024 and 10 February 2025. NSW Police have produced documents under direction, including body worn camera footage recorded at the scene of the accident.
The parties have informed the Commission that the matters in dispute have been resolved. The proceedings were listed today to confirm the orders sought by the parties, including orders with respect to costs.
As the orders sought with respect to costs involve the exercise of a discretion by the Commission my reasons for making those orders follow. The orders were made after hearing oral submissions from the parties in relation to costs. Neither party objected to the costs order sought by the other.
The parties agreed that rather than the proceedings being dismissed, as initially…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2025] NSWPIC 190
Decision Date: 1 May 2025

CaseChat Overview and Summary

AAI Limited trading as GIO (GIO) sought a determination of certain statutory benefits under the Motor Accident Injuries Act 2017 (MAI Act) from McCrohon. The dispute involved factual issues about the circumstances of an accident, which was settled between the parties. Both parties sought orders for costs under the MAI Act. The primary issue for the court was whether exceptional circumstances existed that would justify the payment of the claimant’s costs under section 8.10(4) and the insurer’s costs under section 8.3(4) of the MAI Act.

The court considered the principles set out in San v Rumble (No 2), Ho v Professional Services Review Committee No 295, AAI Ltd trading as GIO v Moon, and Grinter v CIC Allianz Insurance Limited, which establish the criteria for determining whether exceptional circumstances exist. The court found that the proceedings between the parties met the criteria for exceptional circumstances due to the nature and conduct of the proceedings. The court concluded that the claimant’s costs were reasonable and necessary and permitted the payment of those costs under section 8.10(4)(b) of the MAI Act. The court also permitted the payment of the insurer’s reasonable legal costs under section 8.3(4) of the MAI Act.

The court ordered that the claimant’s reasonable and necessary legal costs incurred in connection with the proceedings be paid by GIO. Additionally, the court ordered that GIO’s reasonable legal costs be paid. These orders were made based on the determination that exceptional circumstances justified the payment of costs under the relevant sections of the MAI Act.

Orders