Commins v The President of the Personal Injury Commission of NSW

[2022] NSWSC 1695

Supreme Court

New South Wales

Medium Neutral Citation:

Commins v The President of the Personal Injury Commission of NSW [2022] NSWSC 1695

Hearing dates:

5 December 2022

Date of orders:

12 December 2022

Decision date:

12 December 2022

Jurisdiction:

Common Law

Before:

Schmidt AJ

Decision:

I order that:

1. The amended summons be dismissed.

2. There be no order as to costs.

Catchwords:

CIVIL PROCEDURE — Commencement of proceedings — Summons — where plaintiff was injured in motor vehicle accident for which he accepted compensation under Motor Accidents Compensation Act 1999 (NSW), s 95(2) — where plaintiff has brought proceedings under s 109 which requires leave — where medical assessors’ certificates went unchallenged by review mechanisms available under ss 62, 63 — where claims assessor was bound by medical assessors’ certificates under s 61

CIVIL PROCEDURE — notice of motion — where amended summons does not comply with requirements of Uniform Civil Procedure Rules 2005 (NSW) — defendant moves for amended summons to be dismissed — whether plaintiff should be given leave to further amend summons — whether plaintiff’s case is legally tenable — what the dictates of justice require — Civil Procedure Act 2005 (NSW), ss 56-60 — amended summons dismissed

LIMITATION OF ACTIONS — Personal injury — where plaintiff seeks to bring proceedings in respect of claim after 3-year limitation period provided under Motor Accidents Compensation Act 1999 (NSW), s 109 — construction of legislative scheme — whether acceptance of amount payable in settlement of claim under s 95 precludes later proceedings being brought under s 109

Legislation Cited:

Civil Procedure Act 2005 (NSW), ss 56, 57, 58, 64

Motor Accidents Compensation Act1999 (NSW), ss 5, 61, 62, 63, 81, 94, 95, 108, 109, 131, 134, Pt 4.5

Supreme Court Act1970 (NSW), ss 65, 69

Uniform Civil Procedure Rules 2005 (NSW), rr 15.1, 42.1, 59.4, 59.10

Cases Cited:

Agar v Hyde (2000) 201 CLR 552; [2000] HCA 41

Batistatos v Roads and Traffic Authority of New South Wales (2006) 226 CLR 256; [2006] HCA 27

Bott v Carter [2012] NSWCA 89

The Commonwealth v Verwayen (1990) 170 CLR 394; [1990] HCA 39

General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125; [1964] HCA 69

Kirk v Industrial Relations Commission of New South Wales; Kirk Group Holdings Pty Ltd v WorkCover Authority of New South Wales (2010) 239 CLR 531; [2010] HCA 1

Smalley v Motor Accident Authority of New South Wales (2013) 85 NSWLR 580; [2013] NSWCA 318

Spencer v The Commonwealth (2010) 241 CLR 118; [2010] HCA 28

Category:

Procedural rulings

Parties:

Scott Michael Charles Commins (Plaintiff)
The President, Personal Injuries Commission of NSW (First Defendant)
Insurance Australia Ltd t/as NRMA (Second Defendant)

Representation:

Counsel:
Mr K Rewell SC (Second Defendant)

Mr S Commins (Plaintiff)

Solicitors:
Crown Solicitor’s Office (First Defendant)
McCabes (Second Defendant)

File Number(s):

2022/203693

JUDGMENT

1. In January 2004 Mr Commins was injured in a motor vehicle accident in circumstances for which he was not at fault. In 2007 he made a claim under the Motor Accidents Compensation Act1999 (NSW) in which liability for his injuries was accepted by the insurer Insurance Australia Ltd t/as NRMA. Other issues were in dispute. He was medically assessed by two medical assessors and his claim finally dealt with by a claims assessor, Ms Holz, in June 2008 under s 94 of the Act.

2. Under s 109 of the Act Mr Commins had the right to bring court proceedings within 3 years of the accident, time not running until 2 months after the assessor’s certificate was given. He could also have brought judicial review proceedings in this Court under the Supreme Court Act1970 (NSW). Instead, he accepted payment in settlement in accordance with the assessor’s certificate, as s 95 of the Motor Accidents Compensation Act contemplated, despite disagreeing with aspects of what the assessor had concluded, about which he said he had earlier communicated with her, after the certificate was issued.

3. It was not until 2021 that Mr Commins sought to challenge the certificate in proceedings which he brought before NCAT, which were dismissed, it having no jurisdiction to entertain his application. He commenced these proceedings by summons filed in June 2022. His July 2022 amended summons seeks orders that:

“1. The leave of the court to bring any proceedings well beyond the three year time limit specified in s 109 of the MAC Act

2. A declaration that the assessment certificate 2006/12/1540SM 26 June 2008 is vitiated by error of law

3. An order that the 2006/12/1540SM assessment certificate be quashed

4. An order that the 2006/12/1540SM matter be remitted to the now called Personal Inquiries Commission to be determined in accordance with law.”

4. Since Mr Commins’ claim was assessed the Motor Accidents Authority of NSW, which operated the Claims Assessment and Resolution Service, has been replaced by the Personal Injury Commission. A submitting appearance has been filed by the President of that Commission.

5. As the result of directions made by the Registrar, NRMA filled a response to the amended summons in August 2022, foreshadowing an application for orders dismissing the amended summons for noncompliance with the Uniform Civil Procedure Rules 2005 (NSW). Evidence and submissions were later served.

6. By its 22 August 2022 motion NRMA sought orders under r 59.4(c). In issue at the hearing was whether such orders would be made, or whether Mr Commins would be given the opportunity which he sought to further amend his summons. That opportunity is necessary because Mr Commins’ amended summons does not comply with the requirements of the Rules.

What the proceedings concern

7. Assessor Holz’s damages assessment, which Mr Commins accepted, did not include any award for non-economic loss. That was because the two medical specialists assessed that in total he had suffered only a 7% whole person impairment. Mr Commins did not seek to challenge their certificates, as he could have under s 63 of the Motor Accidents Compensation Act which permitted the President to refer the assessments to a review panel. Nor did he seek referral for further assessment under s 62 of the Act.

8. In those circumstances, before assessor Holz the medical assessors’ certificates were “conclusive evidence as to the matters certified”: s 61 of the Act. The result was that she had no power to award Mr Commins damages for non-economic loss, the statutory threshold being permanent impairment greater than 10%: s 131 of the Act. The damages awarded were:

“a. Past out of pockets                  $6,000

b. Future treatment expenses       $4,000

c. Past economic loss                   $111,973

d. Future economic loss               $110,000

TOTAL                                          $231,973”.

9. This reflected conclusions which assessor Holz had arrived at in resolving disputes over the causation of Mr Commins’ back injury; the nature and extent of that injury; the impact of his other unrelated injuries; and the damages which he had suffered, for reasons given in the certificate. There the assessor referred to difficulties caused by Mr Commins not having put his claim “in an easily understandable format”.

10. The assessor explained the conclusions she had reached, considering that while Mr Commins was then unlikely to enter the workforce in a paid capacity for some time, given his experience and training he would ultimately do so, although factors which had nothing to do with the accident would limit this. She also dealt with his disputed claims in relation to his participation in amateur and professional drag racing and his plans to design a drag racing bike which he proposed to ride competitively. She did not find that his most likely circumstance, but for the accident, would have included a return to professional drag racing, concluding that at best he had lost a chance to earn sponsorship money from time to time, which she assessed to have a value of $10,000.

Claimed errors

11. The alleged errors of law which Mr Commins claims the assessor fell into were not disclosed in the amended summons, nor was Mr Commins able to clearly articulate them in his submissions at the hearing. His written submissions articulated many alleged errors, largely factual.

12. At the hearing what he addressed when asked to indicate the errors of law he sought to pursue concerned factual errors such as the circumstances in which the accident had occurred; what he had earned in drag racing in the past; the liability which NRMA had accepted; what was claimed to be an error in the conclusion the assessor reached in relation to his whole person impairment; and errors in the conclusions reached about his future income, given his plans for drag racing that he had pursued before the accident.

Legislative requirements

13. Section s 109(3) of the Motor Accidents Compensation Act does not permit the Court to grant leave to bring proceedings in respect of a claim unless a full and satisfactory explanation is given for the delay and the total damages of all kinds likely to be awarded, if the claim succeeds, are not less than 25% of the maximum amount that may be awarded for non-economic loss under s 134, as at the date of the relevant motor accident. These requirements are not addressed in the further summons.

14. Nor does the amended summons provide any grounds on which Mr Commins contends he is entitled to be given leave or provide other required information about the errors he seeks to pursue.

15. Rule 15.1 requires that pleadings give such particulars of any claim, defence or other matter pleaded by the party as are necessary to enable the opposite party to identify the case that the pleading requires him or her to meet. Rule 59.4 also requires that if there is a decision in respect of which relief is sought, the identity of the decision maker; the terms of the decision to be reviewed; whether relief is sought in respect of the whole or part of the decision; and “with specificity”, the grounds on which the relief is sought be provided.

16. They have also not been provided.

17. The parties’ cases raise the proper construction of the legislative scheme, particularly whether acceptance of an amount payable under a certificate in settlement of a claim under s 95 precludes later pursuit of proceedings under s 109 of the Motor Accidents Compensation Act, as Mr Commins seeks to do.

18. While judicial review can also be pursued under the Supreme Court Act, in either case Mr Commins requires leave, given the time at which he commenced these proceedings.

19. Rule 59.10 also imposes a 3 month time limit on proceedings for judicial review brought under ss 65 and 69 of the Supreme Court Act. The Court has power under r 59.10 to extend the time for commencement of such review proceedings, but that has also not been sought.

The parties’ cases

20. NRMA’s case was that the summons should be dismissed rather than leave being given to further amend, because what Mr Commins sought to pursue was legally untenable, being statute barred; misconceived because what he proposed is not available to be pursued under the statutory scheme; and having only been brought without explanation some 12 years after assessor Holz’s decision, long after he had accepted and been paid what he had been awarded under the assessor’s certificate. The case it advanced turned on the proper construction of the statutory scheme.

21. Mr Commins had already brought proceedings in 2021 in NCAT, which were misconceived because it has no jurisdiction to deal with the assessor’s certificate, with the result that they were summarily dismissed. Despite this, in these proceedings Mr Commins had not proved any explanation for his delay or even identified any legal error.

22. Also relevant was that accepting what he had been awarded had resulted in estoppel by conduct: The Commonwealth v Verwayen (1990) 170 CLR 394; [1990] HCA 39. The NRMA having acted to its own detriment in the interim, not having gathered evidence which would have been pursued if the proceedings had earlier been brought.

23. In the result the summons should be dismissed.

24. Mr Commins resisted this, seeking an opportunity to further amend his pleadings. He had filed many pages of documents which related to his claim amongst his written submissions, advancing various commentary upon them, as well as upon submissions advanced by NRMA.

25. Amongst other things he thereby contended that:

1. Rule 59.4 only applied to a summons, not an amended summons;

2. his submissions explained some of his delay, because of his ongoing health problems;

3. he had identified 25 pages of errors in the assessor’s certificate, including claimed errors of law, which he sought to explain;

4. he only became aware in 2021, after he approached NCAT, of the need to bring these proceedings;

5. he was still suffering the consequences of the injuries he had sustained in the accident;

6. his education, qualifications and work history before the accident, as well as illness which he suffered during the pandemic;

7. that and the consequences of lockdowns had also delayed his pursuit of these proceedings;

8. he was in receipt of a disability support pension as the result of his injuries;

9. the NRMA had admitted liability for his injuries and the driver’s breach of his duty of care, by which it was bound;

10. the circumstances of the accident were not in dispute, despite the factual errors assessor Holz had made;

11. no certificate issued had included all of his whole person impairments, which totalled more than 10%;

12. he had not accepted the assessor’s reasons and certificate, even though he did not challenge them in court and had accepted the payment made to him;

13. he was entitled to revisit his claim for error of law;

14. he had sought advice about his rights, including contacting the Court in 2018 to enquire about its jurisdiction;

15. how he came to file the proceedings in 2022 after his NCAT proceedings were dismissed;

16. complaints he made in 2018 to the Legal Services Commission in relation to assessor Holz and their pursuit and rejection;

17. complaints he had pursued with other persons, bodies and authorities;

18. the repayment he proposed to make to Centrelink if successful in these proceedings;

19. treatments he had received; and

20. his views that the NRMA’s application involved the provision of false or misleading information for the purpose of obtaining a financial benefit.

Should the amended summons be dismissed?

26. There is no issue that the proceedings were properly commenced by summons and that the Court has power, in the alternative to dismissal, to give the opportunity to amend. But that this could be justly exercised was in issue.

27. There is no question that the amended summons has not been pleaded in accordance with the applicable requirements and so must be amended, if it is not dismissed as NRMA contends it must be.

28. Amendment of pleadings can be ordered under s 64 of the Civil Procedure Act 2005 (NSW). It requires that all necessary amendments be made “for the purpose of determining the real questions raised by or otherwise depending on the proceedings, correcting any defect or error in the proceedings and avoiding multiplicity of proceedings,” subject to s 58. That section imposes the obligation on the Court to act in accordance with the dictates of justice, which requires that regard be paid to the requirements of ss 56 and 57.

29. Section 56 specifies the overriding purpose of the legislative scheme to be the “just, quick and cheap resolution of the real issues in the proceedings” and imposes burdens on both the Court and the parties in relation to facilitating that purpose. Section 57 requires the Court, in furthering that purpose, to have regard to the specified objects, namely:

(a) the just determination of the proceedings,

(b) the efficient disposal of the business of the court,

(c) the efficient use of available judicial and administrative resources,

(d) the timely disposal of the proceedings, and all other proceedings in the court, at a cost affordable by the respective parties.

30. Summary dismissal of a claim without hearing its merits is still never lightly granted: General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125; [1964] HCA 69 at 129-130. What is required is a high degree of certainty about the ultimate outcome of the proceeding if it were allowed to go to trial in the ordinary way: Agar v Hyde (2000) 201 CLR 552; [2000] HCA 41 at [57]; Batistatos v Roads and Traffic Authority of New South Wales (2006) 226 CLR 256; [2006] HCA 27 at [44]-[46]; Spencer v The Commonwealth (2010) 241 CLR 118; [2010] HCA 28 at [24].

31. Proceedings should not be dismissed if there is “a real question to be tried”. But where “upon full legal argument it is established that there was no legally tenable cause of action, summary dismissal is an appropriate course”: Bott v Carter [2012] NSWCA 89 at [13].

32. It follows that if it is accepted that even if the amended summons is further amended Mr Commins seeks to advance a case which the Court is satisfied cannot succeed, it must be dismissed, rather than allowing the pursuit of pleading amendment which would involve useless expense.

33. That is because s 56 limits the circumstances in which the Court, satisfied that the dismissal power is available to be exercised, might be inclined to refuse relief on discretionary grounds: Bott at [14].

Conclusion

34. So approaching what lies in issue I am satisfied that the interests of justice dictate that the amended summons be dismissed, even at this early stage of these proceedings, without first giving Mr Commins an opportunity to further amend.

35. This is despite account having to be taken of the fact that Mr Commins is not legally represented. He has filed nearly 200 pages of documents which are not easy to follow, it must be accepted, particularly given that it is legal error which his summons raises.

36. Still I consider that justice does not permit that he be given an opportunity to seek to replead.

37. Like all litigants, he must comply with the requirements of the legislation which applies. That required him to include in his pleading both the required information as to the legal errors he seeks to pursue and the reasons for his long delay in bringing them. I am satisfied that the matters advanced in his extensive submissions, which he claims will permit the Court to grant him the leave he requires and make the orders he seeks, remitting the matter for further assessment, could not result in either.

Why Mr Commins’ case is untenable

38. That is because Mr Commins cannot be granted leave to file amended pleadings which will be liable to be struck out. His pleadings must disclose an arguable case on the matters he has to establish, because justice must not only be done to Mr Commins, but also to NRMA.

39. The public interest in the conduct of the proceedings in accordance with the requirements of the applicable legislation must also be taken into account in determining the just course to pursue in the circumstances which here arise for consideration.  Consistently with the requirements of the legislative scheme that I have discussed the just course is dismissal.

40. This is because I have concluded that even if given the opportunity he seeks to replead, an arguable case that the assessor fell into legal error, let alone that there is a basis for the grant of the leave he requires, will not be able to be advanced by Mr Commins.

41. That Mr Commins misapprehends the legislative scheme is apparent from the case which he advanced and his many years’ delay in bringing these proceedings within the time limit, is also not adequately explained.

42. Mr Commins said he had communicated with assessor Holz about the errors she had fallen into for some 18 months before accepting payment of the damages he had been awarded. That is not a process which the legislative scheme provides for, if an assessment is to be challenged. Having been unsuccessful in what he so pursued, Mr Commins then accepted what he had been awarded in settlement of his claim, despite his views about assessor Holz’s many alleged errors.

38. The reason why Mr Commins accepted the award, despite those views, rather than pursuing the court proceedings he was entitled to pursue, was not apparent. They could have been brought in the District Court, whose jurisdiction was unlimited in respect of claims such as this. That he still had medical problems to contend with may be accepted, but that they precluded him bringing proceedings under s 109 of the Motor Accidents Compensation Act within time, was not apparent.

39. Mr Commins was free to pursue the course he adopted, but a later realisation that he may have been better off if he had taken a different one, is not a proper explanation for his many years’ delay in bringing these proceedings.

40. The matters he advanced could not justly result in the leave he requires being granted, whether his application was brought under s 109 of the Motor Accidents Compensation Act or under the Supreme Court Act. In either case he has to establish a just basis for the leave he requires. That was not established.

41. On the case he advanced that he has a tenable basis for the claim he seeks to advance is also not apparent.

42. Mr Commins’ case did not identify any arguable errors of law.

43. Any error in assessor Holz’s description of the cause of the accident was an error of fact and relatively unimportant, given the liability which was accepted.

44. Mr Commins disputes the medical assessors’ certificates, which evidenced that in total he had suffered whole person impairment of less than 10%. But assessor Holz was bound by those certificates and there was no legal error in her complying with the requirements of s 61(2) of the Motor Accidents Compensation Act in respect of them, despite Mr Commins view that she erred as a result.

45. Mr Commins could have earlier sought a review of the medical assessors’ certificates before assessor Holz made her assessment, under s 63. He could also have sought referral for further medical assessment under s 62. He did not pursue either course, for reasons which he did not explain. He is bound by the results of the course he did pursue.

46. Assessor Holz’s conclusions about Mr Commins’ whole person impairment did not have any effect on the award made for future economic loss, which he also complained involved error, given his planned pursuit of drag racing. The assessor explained that assessment in the reasons given by reference to the case Mr Commins advanced and the material which she had to consider. That there was any legal error in the approach adopted or its result is also not apparent.

47. The case Mr Commins wishes to pursue depends on the proper construction of ss 95 and 109 of the Motor Accidents Compensation Act, which has to be approached in the context of its objects. They are specified in s 5 to be:

5 Objects of Act

(1) The objects of this Act are as follows—

(a) to encourage early and appropriate treatment and rehabilitation to achieve optimum recovery from injuries sustained in motor accidents, and to provide appropriately for the future needs of those with ongoing disabilities,

(b) to provide compensation for compensable injuries sustained in motor accidents, and to encourage the early resolution of compensation claims,

(c) to promote competition in the setting of premiums for third-party policies, and to provide the Authority with a prudential role to ensure against market failure,

(d) to keep premiums affordable, recognising that third-party bodily insurance is compulsory for all owners of motor vehicles registered in New South Wales,

(e) to keep premiums affordable, in particular, by limiting the amount of compensation payable for non-economic loss in cases of relatively minor injuries, while preserving principles of full compensation for those with severe injuries involving ongoing impairment and disabilities,

(f) to ensure that insurers charge premiums that fully fund their anticipated liability,

(g) to deter fraud in connection with compulsory third-party insurance.

(2) It must be acknowledged in the application and administration of this Act—

(a) that participants in the scheme under this Act have shared and integrated roles with the overall aim of benefiting all members of the motoring public by keeping the overall costs of the scheme within reasonable bounds so as to keep premiums affordable, and

(b) that the law (both the enacted law and the common law) relating to the assessment of damages in claims made under this Act should be interpreted and applied in a way that acknowledges the clear legislative intention to restrict the level of non-economic loss compensation in cases of minor injuries, and

(c) that—

(i) the premium pool from which each insurer pays claims consists at any given time of a finite amount of money, and

(ii) insurers are obliged under this Act to charge premiums that will fully fund their anticipated liability, and

(iii) the preparation of fully funded premiums requires a large measure of stability and predictability regarding the likely future number and cost of claims arising under policies sold once the premium is in place, and

(iv) the stability and predictability referred to in subparagraph (iii) require consistent and stable application of the law, and

(d) that insurers, as receivers of public money that is compulsorily levied, should account for their profit margins, and their records should be available to the Authority to ensure that accountability.

53. Consistently with these objects, s 81(1) of the Act required insurers such as NRMA to give written notice to claimants such as Mr Commins about whether liability for their claim was denied or admitted. NRMA admitted its liability, with the result that the statutory settlement process was engaged, as well as specified payments for various expenses.

54. Contrary to Mr Commins’ understanding, such an admission does not result in the entire amount claimed becoming payable. Some of which may at that point not even be known: Smalley v Motor Accident Authority of New South Wales (2013) 85 NSWLR 580; [2013] NSWCA 318 at [54].

55. That explains how the matters in issue before the medical assessors and finally assessor Holz, came to be dealt with as they were under the statutory scheme. Her assessment was conducted under s 94, which required the assessment to be made having regard to the information available, to produce an assessment certificate together with reasons and to provide them to the parties.

56. That assessment was then binding on NRMA: s 95(2) of the Act. But Mr Commins was given a choice. He had the right to accept the amount awarded “in settlement of the claim”, within the specified 21 days: s 95(2)(b). That term is not defined, but has to be understood in the statutory context, which includes not only the objects earlier referred to, but also the regulation of court proceedings he was entitled to bring under Pt 4.5 of the Act.

57. Section 108 of the Motor Accidents Compensation Act precluded Mr Commins bringing proceedings before the s 94 certificate had been issued and s 109(1) precluded proceedings being brought in respect of the claim more than 3 years after the date of the motor accident, without the leave of the court in which the proceedings were taken. That time was extended by s 109(2), time not beginning to run until 2 months after the issue of the certificate.

58. That gave Mr Commins the right, if he did not settle his claim by accepting the assessed award, to pursue court proceedings within the time specified in s 109. He also had the right to pursue judicial review proceedings in this Court under the Supreme Court Act within the time specified in the Rules if the error alleged went to jurisdiction, for example: Kirk v Industrial Relations Commission of New South Wales; Kirk Group Holdings Pty Ltd v WorkCover Authority of New South Wales (2010) 239 CLR 531; [2010] HCA 1.

59. But what is not contemplated by the Motor Accidents Compensation Act, I am satisfied must be accepted, is both acceptance in accordance with s 95 of an award which is certified under s 94, in settlement of a claim brought under the Act, as well as the later pursuit of court proceedings brought under s 109. This legislative scheme does not permit such later proceedings to be pursued, in order that a claimant can seek greater compensation beyond what was earlier accepted in settlement of the claim.

60. A construction which permitted that outcome would be entirely inconsistent with this statutory scheme and its objects.

61. It follows that having accepted what he was awarded by assessor Holz in settlement of his claim, despite his reservations, Mr Commins gave up the right to pursue court proceedings under s 109. He thus cannot justly now be given leave to amend his pleadings in order to identify grounds for the grant of leave, to bring the proceedings out of time, so that he can advance claimed legal errors the success of which depend on a construction of the legislative scheme which is simply untenable.

62. In the result, applying the principles earlier explained, I am satisfied that justice requires that the orders which NRMA seeks must be made.

Costs

63. The usual costs order under the Rules is that costs follow the event: r. 42.1. NRMA’s position was that if the orders it sought were made, it sought no order as to costs in its favour.

Orders

64. For the reasons given I thus order that:

1. The amended summons be dismissed.

2. There be no order as to costs.

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Decision last updated: 12 December 2022