Agathe v AAI Limited t/as GIO - [2022] NSWPIC 115

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Agathe v AAI Limited t/as GIO [2022] NSWPIC 115
CLAIMANT:	Sydney Agathe
INSURER:	AAI Limited t/as GIO
MEMBER:	Brett Williams
DATE OF DECISION:	22 March 2022
CATCHWORDS:	MOTOR ACCIDENTS - Claim referred to the Commission for assessment five months late; whether the claimant has provided a full and satisfactory explanation for the delay in referring the claim for assessment late; whether leave should be granted to refer the claim for assessment; section 7.33 of the Motor Accident Injuries Act 2017 (MAI Act); Walker v Howard; Karambelas v Zanic (No 2); Russo v Aiello; Hunter v Roberts; Smith v Grant; Lee v Allianz Australia Insurance Limited applied; Held- claimant relied on his lawyer; delay in large part occasioned by outstanding minor injury dispute and advice provided by lawyer; no claim for damages can be made if only injuries are minor injuries; section 4.4 of the MAI Act; claimant had provided a full and satisfactory explanation for the delay; leave granted for claim to be referred for assessment.
DETERMINATIONS MADE:	1. For the purposes of s 7.33 of the Motor Accident Injuries Act 2017 Sydney Agathe has provided a full and satisfactory explanation for the delay in referring his claim to the Commission for assessment. 2. Leave is granted for the claim to be referred for assessment. 3. The proceedings are referred to the stood over list.

Late Application

Issued under section 7.2(3) of the Motor Accident Injuries Act 2017

Background

Sydney Agathe was injured in a motor accident on 7 August 2018. He subsequently made a claim for damages on 18 January 2022, some three years and five months after the accident occurred. The claim was a late claim. The insurer, AAI Limited t/as GIO (GIO), rejected the claim because of the delay and sought an explanation for the delay. GIO accepted the explanation provided by Mr Agathe for the delay. In these circumstances no issue arises under s 6.14 of the Motor Accident Injuries Act 2017 (the MAI Act), GIO having lost the right to reject the claim: s 6.14(5)(a) & (6)(b).
In its reply GIO identified that these proceedings were commenced on 18 January 2022, more than three years after the accident. In these circumstances Mr Agathe must provide a full and satisfactory explanation for the delay and the Commission must grant leave for the claim to be referred for assessment: s 7.33 MAI Act. Neither party has raised an issue in relation to compliance with s 7.32(3).
At the teleconference held on 28 February 2022 GIO confirmed that it did not seek to be heard in relation to any matters arising under s 7.33 and would not be making submissions in relation to that provision. Mr Agathe sought to rely on additional evidence and submissions. Directions were made in relation to the provision of this material. The parties agreed that the s 7.33 issues could be determined on the papers.

On the papers

Having considered both s 52 of the

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: [2022] NSWPIC 115
Decision Date: 22 March 2022

CaseChat Overview and Summary

In the matter of Agathe v AAI Limited t/as GIO, the primary issue before the court was whether leave should be granted for a claim to be referred to the Commission for assessment, given that it had been referred five months after the required timeframe. The claimant, Agathe, argued that there was a full and satisfactory explanation for the delay, largely attributable to advice provided by his legal representative. The defendant, AAI Limited t/as GIO, contested the claimant's explanation and the applicability of certain statutory provisions under the Motor Accident Injuries Act 2017 (MAI Act).

The court considered several legal precedents, including Walker v Howard, Karambelas v Zanic (No 2), Russo v Aiello, Hunter v Roberts, Smith v Grant, and Lee v Allianz Australia Insurance Limited, to determine the appropriate test for granting leave under section 7.33 of the MAI Act. The court held that the claimant's reliance on his lawyer's advice and the dispute over minor injuries were significant factors contributing to the delay. The court also noted that if the claimant's injuries were ultimately found to be minor, no claim for damages could be made under section 4.4 of the MAI Act. After weighing these considerations, the court concluded that the claimant had provided a full and satisfactory explanation for the delay, and therefore, leave should be granted for the claim to be referred for assessment.

The court's decision hinged on the particular circumstances of the case, including the reliance on legal advice and the ongoing dispute over minor injuries. By granting leave, the court allowed the claim to proceed to the Commission for assessment, despite the late referral. This outcome underscores the importance of timely referrals and the need for claimants to provide adequate explanations for any delays, particularly when legal advice is involved. The final orders of the court reflect the granting of leave for the claim to be referred for assessment, allowing the process to continue under the provisions of the MAI Act.

Orders