Bolat v AAI Limited t/as GIO - [2022] NSWPICMR 69

CERTIFICATE OF DETERMINATION OF MERIT REVIEWER
Citation:	Bolat v AAI Limited t/as GIO [2022] NSWPICMR 69
ClaimanT:	Gulten Bolat
Insurer:	AAI Limited t/as GIO
Merit Reviewer:	Ray Plibersek
DATE OF DECISION:	18 November 2022
CATCHWORDS:	MOTOR ACCIDENTS - Merit Review; claim for “reasonable and necessary” legal costs for minor injury dispute; physical injury; claim for maximum regulated legal costs; sections 8.3 and 8.10 of the Motor Accident Injuries Act 2017 (2017 Act); Held – claimant not awarded maximum regulated legal costs; awarded $1,200 plus GST; parties unable to resolve a dispute over small amount; dispute is in stark contrast to the exhortations contained in the objects of the 2017 Act and section 42 of the Personal Injury Commission Act 2020 which encourages the early resolution of claims and the quick, cost effective and just resolution of disputes; parties have not acted in a way that is proportionate to the importance and complexity of the small amount of legal costs in dispute; the Personal Injury Commission was required to divert its scarce resources to deal with a dispute about a small amount of legal costs; claimant’s solicitors did not provide any detailed description or itemisation of the legal work done by them on the minor injury dispute; claim for additional payment of $302.97 under Schedule 1 Part 2 of the Regulations refused as it relates only to legal services provided in connection with a claim for damages; no exceptional circumstances exist to justify additional legal costs.
Determinations made:	Certificate Issued under s 7.13(4) of the Motor Accident Injuries Act2017 1. The insurer is to pay the claimant’s additional reasonable and necessary legal costs assessed at $1,200 plus GST totalling $1,320 for solicitors professional legal services for the minor injury dispute invoice dated 20 February 2020 in accordance with the Motor Accident Injuries Act 2017 and Motor Accident Injuries Regulation 2017.

BACKGROUND

The claimant, Mrs Gulten Bolat, was injured in a motor car accident on 23 August 2018. She was travelling on the M4 motorway stopped in a line of traffic at the church street off ramp. Her vehicle was hit from behind and spun into another vehicle in an adjoining lane.
In this case there is a dispute between the claimant and the insurer about the payment of her legal costs. The claimant’s solicitors are seeking payment of an invoice dated 20 February 2020 totalling $2,159.44 (inclusive of GST) for a minor injury dispute, (A 2).
On 29 April 2019 the claimant’s solicitors made an application for a minor injury under the Motor Accident Injuries Act2017 (MAI Act).
The claimant’s solicitors disputed the insurer’s determination that the claimant’s injuries were a minor injury.
The claimant’s solicitors lodged an application to review the insurer’s minor injury determination in accordance with Division 7.5 Schedule 2 sub-cl 2(e) of the MAI Act.
In a Medical Assessment Certificate dated 4 July 2019 Medical Assessor Neil Berry determined that the claimant’s injuries were caused by the motor accident. The injures were described as:…

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] NSWPICMR 69
Decision Date: 18 November 2022

CaseChat Overview and Summary

In the case of Bolat v AAI Limited t/as GIO, the parties were engaged in a dispute concerning the amount of legal costs associated with a claim for minor injuries sustained in a motor accident. The matter was reviewed by the Personal Injury Commission, an entity established under the Motor Accident Injuries Act 2017 (2017 Act), and later the Personal Injury Commission Act 2020. The crux of the dispute was whether the claimant was entitled to the maximum regulated legal costs or a lesser amount, as well as an additional payment for certain legal services provided.

The legal issues before the court involved the interpretation and application of sections 8.3 and 8.10 of the 2017 Act, which pertain to the recovery of legal costs in minor injury disputes. The court had to consider whether the claimant's solicitors were entitled to the maximum regulated legal costs and if there were any exceptional circumstances that warranted an additional payment. The claimant argued for the higher costs, while the defendant contested that the amount claimed was unreasonable and unnecessary.

The court found that the claimant was not entitled to the maximum regulated legal costs. Instead, the court awarded a sum of $1,200 plus GST, concluding that the parties had not acted in a manner that was proportionate to the importance and complexity of the small amount of legal costs in dispute. The court highlighted that the dispute was contrary to the objectives of the 2017 Act and the Personal Injury Commission Act 2020, which encourage early resolution of claims and cost-effective resolution of disputes. Additionally, the court noted that the claimant’s solicitors had not provided a detailed description or itemisation of the legal work performed, which further influenced the decision. The court also refused the claim for an additional payment of $302.97 under Schedule 1 Part 2 of the Regulations, finding that it related only to legal services provided in connection with a claim for damages and that no exceptional circumstances existed to justify the additional legal costs.

The final orders of the court reflect the reasoning outlined above, affirming the award of $1,200 plus GST to the claimant for legal costs and denying the additional payment requested. This decision underscores the importance of proportionality and adherence to the legislative objectives in resolving minor injury dispute claims.

Orders