ABH v AAI Ltd t/as GIO - [2021] NSWPICMR 16

CERTIFICATE OF DETERMINATION OF MERIT REVIEWER
CITATION:	ABH v AAI Ltd t/as GIO [2021] NSWPICMR 16
APPLICANT:	ABH
RESPONDENT:	AAI Ltd t/as GIO
MERIT REVIEWER:	Brett Williams
DATE OF DECISION:	2 June 2021
CATCHWORDS:	MOTOR ACCIDENTS- whether the costs and expenses incurred by the claimant are reasonable and necessary under section 8.10 of the Motor Accident Injuries Act 2017; minor injury dispute; costs determined by the regulations; medical assessment application did not include detailed, substantive or comprehensive submissions; Held- decision set aside; costs of $500 plus GST; not satisfied of exceptional circumstances.
DETERMINATIONS MADE:	1. The reviewable decision is set aside. 2. The amount of the Claimant’s costs assessed in accordance with the Motor Accident Injuries Act 2017 is $500 plus GST.

Background

There is a dispute between ABH (the Claimant) and the Insurer about whether for the purposes of section 8.10 of the Act costs and expenses incurred by her are reasonable and necessary.

Legal costs are claimed in connection with a minor injury dispute that was the subject of a medical assessment.
Legal costs are also claimed in relation to this application.
The minor injury dispute was a medical assessment matter (Sch 2. cl. 2(e) of the Act). The dispute was not determined in the Claimant’s favour. On 23 December 2019 Assessor Gibson certified that all the injures found to be related to the accident were minor injuries.
By letter dated 28 February 2020 (A2) the Claimant’s lawyers sought from the Insurer payment of her legal costs in relation to the medical assessment in the sum of $1,660 plus GST. The letter enclosed a tax invoice in that amount. The legal services with respect to which costs were claimed were not itemised.
On 2 March 2020 the Insurer declined to pay the Claimant’s costs on the basis that Assessor Gibson’s Certificate did not include a determination in relation to costs (A3).
Further correspondence passed between the Claimant’s lawyers and the Insurer in relation to her costs (A4 – A9). The costs issue remained unresolved.
The dispute before me is a merit review matter (Sch. 2 cl.1(aa)).
The Claimant has asked for the dispute to be determined on the papers. The Insurer has made no objection to that course. I am satisfied that sufficient information has been supplied in connection with the dispute and that the proceedings can be determined on the papers.

Submissions

The Claimant’s submissions are contained in A1 to the Application. In summary, the Claimant submits that:

(a)   the Insurer is obligated to pay the ‘full costs’ associated with this Merit Review;
(b)   the Insurer is obliged to pay the legal costs associated with the minor injury dispute;
(c) the Insurer’s obligation to pay the Claimant’s legal costs arises from s 7.28 and s 8.10 of the Act, and
(d)   the insurer should be ordered to pay the Claimant’s legal costs at ‘the maximum for both the medical dispute matter and merit review matter’, in the sum of $1,655each, a total of $3,266.
The Insurer’s…

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: [2021] NSWPICMR 16
Decision Date: 2 June 2021

CaseChat Overview and Summary

The case before the Court was between ABH and AAI Limited trading as GIO. The dispute concerned whether the costs and expenses incurred by ABH were reasonable and necessary under section 8.10 of the Motor Accident Injuries Act 2017. The matter was heard by the Supreme Court of New South Wales, which was tasked with determining the legal issues related to the assessment of costs incurred by ABH following a minor motor accident. The primary legal issue the court had to address was whether the expenses claimed by ABH were reasonable and necessary under the statutory provisions and regulations governing motor accident claims. This involved assessing the reasonableness of the costs and expenses claimed by ABH and whether these claims complied with the relevant legislative framework.

The court examined the submissions made by ABH, which did not include detailed, substantive, or comprehensive submissions. The court found that the medical assessment application did not meet the necessary standards to justify the costs claimed. The court considered the statutory provisions and the regulations governing the assessment of costs in motor accident claims, finding that ABH had not provided sufficient evidence to substantiate the claimed expenses. The court set aside the decision, finding that ABH had not satisfied the requirement for exceptional circumstances to justify the costs. Consequently, the court ordered ABH to pay $500 plus GST, reflecting the costs associated with the proceedings. This outcome underscores the importance of providing detailed and comprehensive submissions when seeking to recover costs under the Motor Accident Injuries Act 2017.

Orders