Al-Khameesi v Allianz Australia Insurance Limited
[2023] NSWPIC 23
•20 January 2023
| CERTIFICATE OF DETERMINATION OF MEMBER | |
Citation: | Al-Khameesi v Allianz Australia Insurance Limited [2023] NSWPIC 23 |
| Claimant: | Sam Al Khameesi |
| insurer: | Allianz Australia Insurance Limited |
| SENIOR Member: | Brett Williams |
| DATE OF DECISION: | 20 January 2023 |
CATCHWORDS: | MOTOR ACCIDENTS - Motor Accident Injuries Act 2017; whether exceptional circumstances exist such that the Personal Injury Commission can permit legal costs incurred by the claimant for the purposes of section 8.10(4)(b); claimant sought payment of legal costs (counsel’s fees) in connection with miscellaneous claims matter; San v Rumble (No 2), Ho v Professional Services Review Committee No 295 and AAI Ltd trading as GIO v Moon applied; Held – when taken together, the factual disputes in relation to the circumstances in which the accident occurred, the legal issues in dispute, the medical issues relevant to the dispute, the claimant’s limited English language skills and the work associated with preparing statements and submissions supported a finding that exceptional circumstances existed. |
| determinations made: | CERTIFICATE OF DETERMINATION For the purposes of s 8.10(4)(b) of the Motor Accident Injuries Act 2017 exceptional circumstances exist that justify payment of legal costs incurred by the claimant in connection with matter number M10464787/21. |
STATEMENT OF REASONS
background
These proceedings relate to a costs dispute between Sam Al Khameesi (claimant) and Allianz Australia Insurance Limited (insurer). The costs in dispute are in connection with miscellaneous assessment proceedings that were determined by Member Boyd-Boland on 15 August 2022 (primary proceedings). The Member made no order in relation to costs in the primary proceedings, allowing the parties an opportunity to address costs following his determination.
The claimant seeks a costs order from the Commission under s 8.10(4)(b) of the Motor Accident injuries Act 2017 (MAI Act) with respect to the primary proceedings. The insurer disputes that the provision is engaged.
A preliminary conference was held on 2 November 2022. Directions were made for the provision of evidence and submissions relied on by the parties in relation to the costs dispute. Given the nature of the dispute, and sum involved, I encouraged the parties to engage in further negotiations.
In accordance with directions made at the preliminary conference, a joint bundle containing the evidence and submissions relied on by the parties was lodged with the Commission on 13 December 2022.
on the papers.
At the preliminary conference the parties agreed that the costs dispute should be determined on the papers. I am satisfied that sufficient information has been supplied to the Commission in connection with the costs dispute and that the proceedings can be determined on the papers.
evidence
The joint bundle contains a tax invoice from junior counsel dated 8 July 2022 in the sum of $2,500 plus GST. Attached to the tax invoice is an itemised schedule of work performed by counsel. That work comprised a conference with the claimant (1.5 hours - $300), perusing the brief and preparing for conference (3 hours - $600), drafting a statement (3 hours - $600) and drafting submissions (5 hours - $1,000).
The joint bundle includes various emails between the parties in relation to the claimant’s costs of the primary proceedings.
There is also an itemised schedule of costs associated with work conducted by the claimant’s solicitors, said to be in connection with the primary proceedings.
the primary proceedings – nature of the dispute
The joint bundle contains the certificate and reasons of Member Boyd-Boland dated 15 August 2022. The Member determined that for the purposes of s 3.28 the accident on 28 June 2020 was caused wholly by the fault of the claimant.
The Member’s reasons record that the claimant and insurer each lodged two sets of written submissions. A number of authorities were relied on by the parties in their submissions. There were statements from the claimant, together with statements from witnesses, including a police constable.
It is apparent from the Member’s reasons that there was a contest between the parties as to the facts and the law.
claimant’s submissions
The claimant’s submissions dated 7 October 2022 record that the primary proceedings related to a single vehicle accident that occurred when the claimant was driving along Leacocks Lane, Casula. It is stated that the claimant suffered a medical episode that caused him to lose control of his vehicle and collide with a pole.
The claimant argues that the primary proceedings involved consideration of the no-fault provisions in the MAI Act and that the circumstances of the claim involved a complex factual scenario where a medical episode was alleged, and the claimant lacked English language skills. It is argued that these matters “can only be regarded as constituting an unusual degree of factual and legal complexity.”
It is submitted that legal advice provided to the claimant was reasonably necessary to prevent injustice, that is, to enable the claimant to have his case heard and determined “properly”.
The submissions state that the claimant seeks $2,500 by way of “exceptional costs” for counsel’s fees above the regulated costs. It is submitted that the costs sought are reasonable having regard to the assistance the claimant required to prepare and have his case determined properly. This involved conferences with the assistance of an interpreter, drafting of submissions and assisting with the drafting of the claimant’s statement.
In further submissions dated 18 November 2022 the claimant argues that exceptional circumstances exist in connection with the primary proceedings for the following reasons:
(a) Both the law and the facts in the primary proceedings were somewhat complex, and more than what is usually encountered.
(b) An added layer of complexity arose as the alleged medical episode of perennial rhinitis needed to be analysed and applied to the facts.
(c) There was a significant language barrier and the claimant was not highly educated. As the claimant could not speak English, a number of conferences with a different solicitor (to interpret documents to the claimant) were required.
(d) Clinical notes from the claimant's treating practitioners were required and there was a substantial amount of documentation to consider.
(e) The claimant was fined for negligent driving and a statement was provided by Police Officer Woodland. Instructions were needed in this regard.
(f) The way that the claimant lost control during the accident was complicated and complex, and the claimant's instructions were sought on a number of occasions to clarify this.
(g) A comprehensive statement was drafted and interpreted to the claimant. Two sets of submissions were served by the claimant and two sets of submissions were perused from the insurer.
The claimant argues that, in the context of determining whether exceptional circumstances exist, the authorities are clear that it is the totality of the circumstances which must be considered. It is argued that, while one or more individual circumstances may not be exceptional, the totality of the circumstances in the primary proceedings produce an exceptional result. Therefore, it is submitted, the claimant is entitled to “exceptional costs”.
The submissions confirm that the claimant seeks to recover from the insurer the sum of $2,500, representing junior counsel’s fees.
insurer’s submissions
In submissions dated 25 October 2022, the insurer argues that the primary proceedings did not involve an unusual degree of factual complexity so as to warrant an order under s 8.10(4). The insurer notes that the assessment was conducted on the papers and that no expert evidence was served by the parties.
The insurer argues that the “no-fault issue is commonplace” and is an issue with respect to which an “experienced solicitor practicing in CTP would be well versed”.
The insurer submits that the “paper-based” dispute resolution process did not require the skills of a barrister, particularly in light of the experience of the claimant’s solicitors.
In the insurer’s submission, counsel’s involvement drafting an updated statement and submissions was “duplicative” given that the claimant had already provided a statement and submissions. The insurer argues that the primary proceedings did not involve exceptional circumstances that justified the involvement of counsel.
The insurer was directed to serve all further submissions it relied on in relation to the costs dispute on or before 2 December 2022. On 2 December 2022 the insurer advised the Commission that it did not seek to rely on further evidence or documents. I have taken this to mean that the insurer did not rely on further submissions in reply to those lodged by the claimant. In any event, further submissions have not been provided by the insurer.
Determination
The Commission can permit payment of legal costs incurred by the claimant in connection with the primary proceedings if it is satisfied that exceptional circumstances exist that justify payment of those costs: s 8.10(4) MAI Act.
To be “exceptional circumstances” the circumstances must be unusual or out of the ordinary, whether as a result of qualitative or quantitative factors. The case need not be one that is unique, unprecedented, or very rare. The question is determined on the basis of the facts of the individual case: San v Rumble (No 2) [2007] NSWCA 259 at [67].
Exceptional circumstances can include a single exceptional matter, a combination of exceptional factors, or a combination of ordinary factors which, although individually of no particular significance, when taken together are seen as exceptional: Ho v Professional Services Review Committee No 295 [2007] FCA 388 at [26].
In AAI Ltd trading as GIO v Moon [2020] NSWSC 714, Wright J found that s 8.10(4) of the MAI Act can be seen as designed to deal with particular, unusual situations where the maximum costs fixed by the Regulations may not be adequate. Wright J held at [99] that:
“…other cases can be envisaged which are exceptional, because they involve an unusual degree of factual or legal complexity or for some other reason, and this requires the incurring of more substantial legal costs by a claimant. These cases fall within s 8.10(4).”
The joint bundle relied on by the parties does not include the material they relied on in the primary proceedings. My impressions of the “case”, including the matters in dispute, and the complexity of the dispute, has been gleaned from the submissions and other material contained in the joint bundle, including Member Boyd-Boland’s reasons. I do not, for example, have a copy of the submissions lodged in the primary proceedings or the claimant’s statements. This material is, however, summarised in the Member’s reasons.
On the basis of the material before me, I have concluded that, with respect to the primary proceedings, the following matters, when taken together, constitute exceptional circumstances for the purposes of s 8.10(4)(b) of the MAI Act:
(a) the factual matters in dispute;
(b) the legal issues in dispute;
(c) the medical issues relevant to the dispute;
(d) the claimant’s limited English language skills, and
(e) my assessment of the legal work undertaken in connection with the proceedings, including the preparation of statements and submissions.
That the primary proceedings were determined on the papers does not, in my opinion, mean that they lacked factual or legal complexity, or that exceptional circumstances more generally did not exist.
Having regard to the matters discussed at [29], I am satisfied that, for the purposes of s 8.10(4)(b) of the MAI Act, exceptional circumstances exist that justify payment of the legal costs incurred by the claimant in connection with the primary proceedings.
I have determined that counsel’s fees in the sum of $1,900 plus GST are reasonable and necessary. I have allowed 1.5 hours for the conference with the claimant, 2 hours for perusal of the brief and preparing for the conference, 3 hours for drafting the claimant’s statement and 3 hours for drafting submissions. I have applied an hourly rate of $200. The claimant is entitled to recover the sum of $1,900 plus GST from the insurer.
That the parties were not able to resolve the costs dispute is regrettable. The amount of costs in dispute is not, in my assessment, proportionate with the additional time expended, and expenses incurred, in connection with the dispute. The dispute ought to have been capable of resolution.
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