Begonja v Insurance Australia Limited ACN 000 016 722 Trading as NRMA Insurance (Motor Accident Injuries)
[2021] ACAT 96
•11 October 2021
ACT CIVIL & ADMINISTRATIVE TRIBUNAL
BEGONJA v INSURANCE AUSTRALIA LIMITED ACN 000 016 722 TRADING AS NRMA INSURANCE (Motor Accident Injuries) [2021] ACAT 96
MAI 9/2021
Catchwords: MOTOR ACCIDENT INJURIES – whether a party is eligible for costs notwithstanding the matter did not proceed to final hearing – where evidence would have been reasonably available to the insurer had appropriate enquiries been made – whether it is appropriate to make costs orders – whether the party has provided itemised details of the costs claimed within the time that the Tribunal considers appropriate
Legislation cited: ACT Civil and Administrative Tribunal Act 2008 ss 32, 48
Motor Accident Injuries Act 2019 ss 193, 198
Subordinate
Legislation cited: Motor Accident Injuries (ACAT Costs Orders) Regulation 2020 s 6
Cases cited:Kioa v West [1985] HCA 81
Neish v Insurance Australia Limited trading as NRMA Insurance [2021] ACAT 38
Tribunal:Presidential Member H Robinson
Date of Orders: 11 October 2021
Date of Reasons for Decision: 11 October 2021
AUSTRALIAN CAPITAL TERRITORY )
CIVIL & ADMINISTRATIVE TRIBUNAL ) MAI 9/2021
BETWEEN:
VENDRA BEGONJA
Applicant
AND:
INSURANCE AUSTRALIA LIMITED ACN 000 016 722 TRADING AS NRMA INSURANCE
Respondent
TRIBUNAL:Presidential Member H Robinson
DATE:11 October 2021
ORDER
The Tribunal orders that:
The applicant is to file in ACAT and serve on the respondent itemised details of the costs claimed within 14 days of the date of these orders.
The matter is relisted for hearing on the quantum of costs payable on 9 November 2021 at 9:00am.
………………………………..
Presidential Member H Robinson
REASONS FOR DECISION
This is an application for costs under section 198(1) of the Motor Accident Injuries Act 2019 (MAI Act). The question is whether the applicant may be eligible for costs notwithstanding the matter did not proceed to final hearing.
Background
The applicant sustained personal injuries in a motor vehicle accident on 17 March 2020. The respondent insurer accepted that defined benefits were payable under the MAI Act in relation to injuries sustained in the accident, including treatment and care benefits pursuant to part 2.5 of that Act.
On 1 February 2021 the respondent declined the applicant’s application for defined benefits for the treatment and care expense of an ultrasound of her left shoulder (internally reviewable decision). The respondent confirmed the internally reviewable decision on internal review on 23 February 2021 (the externally reviewable decision). The applicant sought external review of the externally reviewable decision in the Tribunal pursuant to section 193(1)(a) of the MAI Act.
At the time of making the externally reviewable decision, the respondent had before it the applicant’s medical records from her general practitioner, as well as a Closure Report from her rehabilitation provider, and various other documentation. None of this documentation indicated that the applicant had complained of left shoulder pain following the accident.
The respondent obtained the applicant’s clinical notes from the Belconnen Chiropractic Centre on 11 March 2021. These records contained a note that the applicant complained of left shoulder pain on 30 March 2020.
By way of a letter dated 24 May 2021 the respondent advised the applicant that it had reconsidered the externally reviewable decision and accepted the ultrasound of the left shoulder as a treatment and care expense in relation to the applicant’s claim.
On 26 May 2021 the respondent lodged an interim application seeking orders that the proceedings be dismissed under section 32(1) of the ACT Civil and Administrative Tribunal Act 2008 (ACAT Act) as lacking in substance. The applicant opposes the application on the basis that she is entitled to costs pursuant to section 198(1) of the MAI Act.
Pursuant to sub-section 6(3) of the Motor Accident Injuries (ACAT Costs Orders) Regulation 2020, the maximum amount that ACAT can order for costs is $2,000, adjusted for indexed average weekly earnings (AWE) plus the ACAT filing fee.
I note that the externally reviewable decision appears to have been revoked or amended with the agreement of the parties, in a manner that was neither communicated to nor recorded by the Tribunal. Neither party has raised as an issue whether the respondent may reconsider an externally reviewable decision that is the subject of an application before the Tribunal. The parties agree and submit that the only matter before the Tribunal is the issue of costs pursuant to section 198(1) of the MAI Act. On this basis, I have decided only that question.
Consideration
The default position in respect of costs in the Tribunal is that parties to an application must bear their own costs unless the ACAT Act or other Territory law provides, or the Tribunal orders otherwise: section 48(1).
Section 198(1) of the MAI Act gives the Tribunal a specific costs power that prevails over the general power in section 48 of the ACAT Act. It provides:
198 External review—costs of proceedings
(1) The ACAT may order a party to pay the costs of the other party arising from an application for external review of an ACAT reviewable decision.
(2) However, the ACAT must not award the costs of, or incidental to, an application for external review against an injured person if—
(a)the injured person made the application in good faith; and
(b)the ACAT is satisfied that the applicant has an arguable basis for the application.
(3) The ACAT may be satisfied an applicant has an arguable basis for an application for external review if the applicant appears in person.
(4) A regulation may prescribe the following:
(a)when an order under subsection (1) may be made;
(b)what may be considered to be a disbursement;
(c)the maximum amount that can be awarded for particular costs;
(d)the maximum amount of costs that can be awarded in relation to an application for external review of an ACAT reviewable decision.
NotePower to make a statutory instrument (including a regulation) includes power to make different provision in relation to different matters or different classes of matters, and to make an instrument that applies differently by reference to stated exceptions or factors (see Legislation Act, s 48).
(5) In this section:
costs include disbursements.
Under section 198(1) of the MAI Act, the Tribunal may order a party to pay the other party’s costs arising from an application for review of an ACAT externally reviewable decision, such as the application in this case.
Section 6 of the Motor Accident Injuries (ACAT Costs Orders) Regulation 2020 (Costs Regulations) sets out the conditions under which a costs order can be made, and the maximum amount that can be awarded. It provides that:
6 External review—costs of proceedings—Act, s 198 (4)
(1) At any time during a proceeding before the ACAT on an application for external review of an ACAT reviewable decision, a party to the proceeding (the requesting party) may ask the ACAT to order the other party to the proceeding to pay the requesting party’s costs arising from the application for external review (a costs order).
(2) The ACAT may make a costs order if—
(a)the requesting party gives the ACAT itemised details of the costs within the time the ACAT considers appropriate; and
(b)the ACAT is satisfied on reasonable grounds that—
(i)the itemised details show the costs were reasonably incurred; and
(ii)the costs relate only to the preparation of, and appearances in relation to, the application for external review of the ACAT reviewable decision; and
(iii)if a costs order has previously been made in relation to the application—the total of all costs orders for the application do not exceed the maximum amount mentioned in subsection (3); and
(iv)it is appropriate to make the order.
(3) The maximum amount that the ACAT can order for costs is—
ACAT filing fee—
(a)includes the fee for filing an application; but
(b)does not include the fee for additional hearing days.
(4) The maximum amount mentioned in subsection (3) includes any GST payable in relation to the work done for or in the proceeding.
(5) However, the costs payable to the requesting party are reduced by the amount of any input tax credit for GST to which the requesting party is entitled in relation to the party’s costs.
(6) In this section:
costs means the fees, disbursements and expenses that the ACAT considers necessary for the preparation of, and appearances in relation to, an application for external review of an ACAT reviewable decision.
input tax credit—see the A New Tax System (Goods and Services Tax) Act 1999 (Cwlth), section 195-1 (Dictionary).
itemised details, of the costs, means details of—
(a)the legal costs (clearly identifying costs that are legal fees and costs that are disbursements) payable by the party to the party’s lawyer; and
(b)other fees or expenses incurred by the party in relation to the application for external review of an ACAT reviewable decision.
Neither the MAI Act nor the Costs Regulations specifically provide that it is the successful party that would be awarded costs.
In this case, to award costs to the applicant I would need to be satisfied of two things:
(a)that the requesting party has provided itemised details of the costs claimed within the time that the Tribunal considers appropriate: subsection 6(2)(a) of the Costs Regulations; and
(b)that it is ‘appropriate’ to make the costs order: subsection 6(2)(b)(iv) of the Costs Regulations.
The applicant’s position
The applicant’s position is that the respondent only agreed to accept the claim after she sought external review in the tribunal. Had she not done so, her claim may not have been accepted. Accordingly, by applying a ‘but for’ test, the application was necessary and, therefore, for the purposes of section 6(2)(b)(iv) of the Cost Regulations, it is ‘appropriate’ that costs be awarded.
The applicant also submits that the chiropractic report, which it considered in deciding to accept the claim, was not necessarily ‘new evidence’. Although it was created at the request of the insurer, the records existed in some form at the time of the internally reviewable decision by the insurer and could have been obtained earlier had the request been made. The respondent the applicant submits, had “plenty of time” to obtain it as part of the internal review process.
The respondent’s position
The respondent says that the applicant has not established that it is ‘appropriate’ to make such a costs order.
The respondent says, that at the time of the insurer’s internally reviewable decision on 1 February 2021 and the externally reviewable decision on 28 February 2021, the evidence did not establish that the applicant had suffered any injury to her left shoulder in the subject accident. No records obtained by the insurer showed contemporaneous complaints of left shoulder injury. The decision was ultimately re-made by the respondent after it obtained evidence that had not been obtained prior to and was not available at the time of the internally reviewable decision.
Alternatively, the Costs Regulations mandates, as a precondition to the Tribunal making a costs order, that the applicant must provide details of those professional costs and disbursements. The applicant has not done so. Accordingly, as a matter of procedural fairness (citing Kioa v West[1]), before any order in response to the applicant’s request for costs is made, the respondent should be given an opportunity to make submissions on whether the itemised costs claimed meet the requirements in subsection 6(2)(b) of the Costs Regulations.
Decision
[1] [1985] HCA 81; 159 CLR 550 page 584
I accept that at the time of making the internally reviewable decision there was no evidence before the respondent that the applicant had suffered an injury to her left shoulder in the motor vehicle accident on 17 March 2020. In the absence of evidence, the claim could not be accepted.
The difficulty that I have with the respondent’s position is that it is not apparent to me why the notes from the Belconnen Chiropractic Centre were not available to the respondent at the time of the making of the internally reviewable decision. On the limited information before the tribunal, it appears that the evidence would have been available had appropriate enquiries been made.
In Neish v Insurance Australia Limited trading as NRMA Insurance[2] (Neish), Acting Presidential Member Kyprianou observed that:
11. The Motor Accident Injuries (Treatment and Care) Guidelines 2019 (MAI Guidelines) made under section 487 of the MAI Act, provide guidance to insurers about approving and making payment for an injured person’s treatment. Guideline 3.1 provides that, to inform a decision about the approval of treatment and care expenses, the insurer may ask for an assessment of the injured person by a medical expert. It is important to note that Guideline 3.1 applies to the operation of the process set out in sections 120 and 121 of the MAI Act, that is before a dispute about treatment benefits is lodged with the ACAT. Guideline 3.1 also supports the approach whereby the insurer obtains all relevant information during making the initial decision and the internal review process and before the applicant seeks external review by the ACAT.
12. The ACAT’s objects require the Tribunal to encourage parties to comply with the decision-making process set out in the relevant legislation (see section 6(f) of the ACT Civil and Administrative Tribunal Act 2008). In this case it is evident from the provisions of subsections 197(2) and 197(3) of the MAI Act and the MAI Guideline referred to in the previous paragraph, that the MAI legislation sets out a decision‑making process which requires parties to obtain and present all reasonably available information to the decision-maker as early as possible, rather than wait until the external review phase before doing so.
[2] [2021] ACAT 38
That decision in Neish concerned an application to present additional evidence pursuant to section 197(3) of the MAI Act. However, while the context is somewhat different, the same principles apply here. The respondent should obtain all reasonably available information prior to deciding an application for defined benefits.
After receiving the records, the respondent accepted liability for the defined benefit payment. The externally reviewable decision would presumably have been different had the chiropractor records been obtained at the time it was made. There is no suggestion that the chiropractor records at issue in this case were not reasonably obtainable by the respondent at the time of making the internally reviewable decision, had appropriate enquiries be made. There is no explanation as to why the respondent did not seek to obtain the records until after the applicant had applied to ACAT for external review. In such circumstances, I am satisfied that it is ‘appropriate’ to make a costs order pursuant to section 198 of the MAI Act and section 6(2)(b)(iv) of the Costs Regulations.
The applicant has not provided itemised details of the costs claimed as required by subsection 6(2) of the Costs Regulations. Given the terms of that section, I cannot make the order unless this is done. Consequently, I will order that the applicant file in ACAT and serve on the respondent the itemised details of the costs claimed within 14 days of the date of these orders. The matter will be listed for hearing on costs at 9 November 2021. If the parties can reach agreement on the amount of the costs, noting the regulatory maximum of $2,000 (AWE adjusted) plus the ACAT filing fee ($274), the Tribunal will consider a request by the parties to make in-chambers consent orders.
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Presidential Member H Robinson
| Date(s) of hearing | 16 June 2021 |
| Solicitors for the Applicant: | Ms D Rolfe, Maliganis Edwards Johnson |
| Solicitors for the Respondent: | Ms S McJannett, HWL Ebsworth Lawyers |
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