Cui v AAI Limited t/as AAMI
[2023] NSWPICMR 45
•1 September 2023
| CERTIFICATE OF DETERMINATION OF MERIT REVIEWER | |
| CITATION: | Cui v AAI Limited t/as AAMI [2023] NSWPICMR 45 |
| CLAIMANT: | Jie Cui |
| INSURER: | AAI Limited t/as AAMI |
| MERIT REVIEWER: | Katherine Ruschen |
| DATE OF DECISION: | 1 September 2023 |
| CATCHWORDS: | MOTOR ACCIDENTS - Motor Accident Injuries Act 2017; dispute about weekly payment of statutory benefits under division 3.3; dispute about pre-accident weekly earnings (PAWE); when first began to earn continuously; schedule 1, clause 4(2)(a); division 6.6; veracity of evidence; credibility; duty of disclosure and to act honestly and not mislead; sections 6.3 and 6.24; compliance with directions; sections 42 and 54 of the Personal Injury Commission Act 2020; rule 77 of the Personal Injury Commission Rules 2021; power to dismiss proceedings; Held – the application for a merit review is dismissed. |
| DETERMINATIONS MADE: | CERTIFICATE Issued under s 7.13(4) of the Motor Accident Injuries Act2017 DETERMINATION 1. Pursuant to s 54(c) of the Personal Injury Commission Act 2020 and rule 77(b)(ii) and/or in the alternative, rule 77(b)(iii) of the Personal Injury Commission Rules the application for a merit review is dismissed. |
STATEMENT OF REASONS
INTRODUCTION
There is a dispute between Jie Cui (the claimant) and the insurer about the amount of weekly payments of statutory benefits payable under Division 3.3 of the Motor Accident Injuries Act 2017 (the MAI Act).
The claimant was involved in a motor accident on 2 July 2022.
On 31 August 2022 the insurer determination the claimant’s pre-accident weekly earnings (PAWE) in the sum of $503.52.
On 1 September 2022 the claimant applied for an internal review of the insurer’s decision dated 31 August 2022.
On 14 September 2022 the insurer issued their internal review decision in which the insurer varied the claimant’s PAWE to $342.87.
The claimant has requested a merit review of the insurer’s internal review decision dated 14 September 2022.
SUBMISSIONS
The motor accident occurred on 2 July 2022.
The 12-month pre-accident period under Schedule 1, cl 4(1) of the Motor Accident Injuries Act 2017 (the MAI Act) is 2 July 2021 to 1 July 2022. However, the claimant contends they had not been earning prior to 1 October 2021. The claimant states they first commenced earning as an Uber driver on 1 October 2021. On this basis the claimant submits their PAWE falls under cl 4(2)(a) and therefore is to be calculated based on the weekly average over the shorter, 39-week period from 1 October 2021 to 1 July 2022 rather than the 52-week period under cl 4(1).
The insurer submits there is evidence the claimant had been earning as an Uber driver prior to 1 October 2021 and therefore the claimant’s PAWE is to be calculated over the 52-week period under cl 4(1).
REASONS
Legislation
Section 6.3 of the MAI Act provides that the claimant has a duty to the insurer to act with good faith in connection with the claim and that the claimant’s duties in this regard include:
(a) a duty to act honestly and not mislead;
(b) a duty to disclose all relevant information in a timely manner, and
(c) a duty to promptly do all things reasonably necessary to facilitate the resolution of any dispute involving the claim.
Section 6.40 of the MAI Act further provides:
“A person who makes a statement knowing that it is false or misleading in a material particular--
(a) in a notice of a claim given to a person or an insurer under this Act, or
(b) in the course of a review or assessment under Part 7 in relation to a claim, or
(c) when otherwise furnishing information to any person concerning a motor accident or any claim relating to a motor accident,is guilty of an offence.”
Concerns about the claimant’s contentions and procedural directions
The claimant has legal representation.
The claimant’s solicitors made submissions on the claimant’s behalf, including by stating that in the 12 month period before the motor accident the claimant had not worked prior to 1 October 2021. The claimant’s solicitors provided documentary evidence in support of the claimant’s claim. However, that same evidence puts into question the veracity of the claimant’s solicitor’s submission that the claimant had not worked prior to 1 October 2021.
The question as to when the claimant first commenced working before the motor accident is obviously a relevant matter. This would be known to the claimant’s solicitor. The answer to this question is crucial to the issue to be determined that is, whether the claimant’s PAWE falls for assessment under cl 4(1) or cl 4(2)(a). Accordingly, on
10 August 2023 I issued directions to the parties as follows:
“DIRECTIONS
I am a Merit Reviewer to whom the above proceedings have been referred.
The motor accident occurred on 2 July 2022. The 12 month pre-accident period under Schedule 1, cl 4(1) of the Motor Accident Injuries Act 2017 (the MAI Act) is therefore 2 July 2021 to 1 July 2022. However, the claimant contends they had not been earning prior to 1 October 2021. The claimant states they first commenced earning as an Uber driver on a sole trader basis on 1 October 2021. On this basis the claimant contends pre-accident weekly earnings (PAWE) fall under cl 4(2)(a) and therefore are to be calculated based on the weekly average over the shorter, 39 week period from 1 October 2021 to 1 July 2022 rather than the 52 week period under cl 4(1).
There is evidence which puts into question the veracity of these assertions made by the claimant and their solicitors, including:· the claimant has had an ABN and has also been registered for GST since 2015;
· the claimant declared in their original 2022 tax return that their Uber driving business was a “continuing business” from the previous tax year; and
· the claimant’s bank statements show payments received from Uber on more than one occasion prior to 1 October 2021 which clearly represent payment of income from Uber under the same driver details.
The claimant is reminded of their duty under s 6.3 of the MAI Act to act honestly and not to mislead the insurer or the Personal Injury Commission (PIC). The claimant and their solicitors are reminded of their duties under s 42 of the Personal Injury Commission Act 2020. The claimant’s solicitors are also reminded of their duty under the Legal Profession Uniform Law Australian Solicitors’ Conduct Rules 2015 and in particular, Conduct Rule 17.1 pursuant to which the claimant’s solicitors must not act as a mere mouthpiece of the client and must exercise the forensic judgments called for during the case independently, after the appropriate consideration of the client’s instructions. This means the claimant’s solicitors must consider the evidence objectively and must not make submissions to PIC which are contrary to the evidence. The claimant’s solicitors should consider the evidence I have noted above and take proper instructions from their client for the purpose of complying with the directions below.
In order to facilitate the just, quick and cost-effective resolution of the real issues in the proceedings I make the following directions:
The claimant is, by 24 August 2023 to upload to the portal the following documents:(a) the complete “Uber Taxation Summaries” prepared and issued by Uber to the claimant for the period 1 April 2021 to 30 September 2022;
(b) complete, final Business Activity Statements (BAS) for the period 1 April 2021 to 30 September 2022 (as the claimant has been registered for GST for this entire period there ought to be a BAS for each quarter within this period. The claimant has provided draft BAS only at this stage. The claimant is to provide a printout of their online business activity statements obtained from the ATO through his MyGov account or by their accountant through the tax agent’s portal and not the drafts prepared by the claimant or their accountant in order to comply with this direction);
(c) the claimant’s bank statement number 30 for the period 1 July 2022 to 30 September 2022;
(d) a copy of the claimant’s notice of assessment issued by the ATO for the financial year ending 30 June 2022; and
(e) any further documents or submissions on which the claimant relies.
2. The insurer is, by 7 September 2023 to upload to the portal any further documents or submissions on which the insurer relies.”
Consideration
The claimant has failed to comply with the directions issued on 10 August 2023. No further documents have been received from the claimant.
Compliance by the claimant with the directions dated 10 August 2023 is mandatory. By failing to comply with the directions the claimant and their solicitor are each in breach of their obligations under s 42 of the Personal Injury Commission Act 2020 (PIC Act).
On the available evidence the veracity of the claimant’s contentions is clearly in issue. There are also questions about the veracity of the draft business activity statements (BAS) provided by the claimant having regard to the covering letters purportedly from the claimant’s accountant and the dates recorded therein.
As noted in the directions of 10 August 2023 the following evidence is inconsistent with a contention by the claimant’s solicitor on the claimant’s behalf that the claimant had not worked prior to 1 October 2021:
(a) the claimant has had an ABN and has also been registered for GST since 2015;
(b) the claimant declared in their original 2022 tax return that their Uber driving business was a “continuing business” from the previous tax year indicating the claimant had been working as an Uber driver since before 1 July 2021;
(c) it appears the amended tax return to record Uber driving as a new business commencing on or after 1 July 2021 came about in the context of this claim, and
(d) the claimant’s bank statements show several payments received from Uber prior to 1 October 2021, including prior to 1 July 2021 (that is, in the previous tax year), which clearly represent payment of income from Uber under the same driver details.
It is concerning that the claimant’s solicitors were in possession of documents evidencing the above when they stated on the claimant’s behalf that the claimant had not worked prior to 1 October 2021, yet they made no attempt to explain the evidence which conflicts with their submission.
In the absence of any further documents or information from the claimant, which may have assisted to clarify the issues, the veracity of the claimant’s contentions remains in question which in turn puts the claimant’s credit in issue.
Given the claimant failed to provide the further documents required by the directions I am unable to further consider the critical issue of whether the claimant worked prior to 1 October 2021. I am also unable to be comfortably satisfied as to the amount of the claimant’s PAWE either under cl 4(1) or cl 4(2)(b) absent the information and documents required from the claimant under the 10 August 2023 directions.
The directions for the claimant to provide further documents ought not be onerous. The claimant has legal representation and an accountant. The documents requested in the directions ought to be readily available to the claimant, including through their MyGov online account and their online Uber (driver) profile.
Pursuant to ss 42 and 49 of the PIC Act compliance with the directions is mandatory.
The claimant was required to comply with the directions by 24 August 2023. The claimant failed to comply and has not made any request for an extension of time. Nor have they offered any explanation for the non-compliance.
The claimant’s solicitor was followed up by the Commission on 31 August 2023 in response to which the claimant’s solicitor advised they had further submissions to lodge. However, no further submissions or documents have been received and, in any event, a request for an extension of time to comply with the directions (which is what is required) has not been made by the claimant.
Pursuant to the guiding principle in s 42 of the PIC Act the claimant and their solicitor are under a duty to cooperate with the Personal Injury Commission (Commission), including by complying with directions. Accordingly, compliance with the directions is mandatory. The claimant is in breach of the directions. The claimant (and their solicitor) is in turn in breach of their duty under s 42 of the PIC Act.
Pursuant to s 54 of the PIC Act the Commission may at any stage dismiss proceedings:
(a) if it is satisfied that the proceedings have been abandoned, or
(b) if it is satisfied that the proceedings are frivolous or vexatious or otherwise misconceived or lacking in substance, or
(c) for any other ground of dismissal specified in the Commission rules.
The grounds specified under Rule 77 of the Personal Injury Commission Rules 2021 (the PIC Rules) for the purpose of s 54(c) of the PIC Act include:
(a) the applicant has failed, without reasonable excuse, to comply with a direction given by the Commission or the President; or
(b) the applicant has failed to prosecute the proceedings with due despatch.
Pursuant to PIC Rule 114(1)(d) s 54 applies to merit review proceedings.
Pursuant to PIC Rule 114(2) “a function given to the Commission in section 42 … of the PIC Act is to be read as being given to the merit reviewer conducting the merit review proceedings”.
Pursuant to PIC Rule 114(3) “a function given to the Commission in section … 54 of the PIC Act is to be read as being given to the President”.
Pursuant to PIC Rule 9:
“A non-presidential member or merit reviewer to whom applicable proceedings are referred may make any order relating to the procedure to be followed in the proceedings, including an order striking out the proceedings or any step in the proceedings, that could be made by the President.”
Pursuant to Rule 5(2)(d) applicable proceedings for the purpose of PIC Rule 9 include merit review proceedings.
Pursuant to PIC Rule 5 “merit review proceedings” are “proceedings before a merit reviewer under enabling legislation”. Accordingly, these proceedings are merit review proceedings for the purpose of s 54 of the MAI Act and PIC Rule 114.
Accordingly:
(a) pursuant to PIC Rule 114 as Merit Reviewer I have power to issue directions to the parties and for compliance with the directions by the parties to be compulsory under s 42 of the PIC Act, and
(b) pursuant to PIC Rules 114 and 9 I have power to strike out the proceedings or to take any step in the proceedings that could be made by the President. This includes the power to dismiss the proceedings under s 54(c) of the PIC Act and PIC Rule 77.
The claimant has failed to comply with the directions issued on 10 August 2023, without reasonable excuse. As a result, the claimant has failed to prosecute the proceedings with due despatch.
In the circumstances I have determined that pursuant to s 54(c) of the PIC Act and PIC Rule 77(b)(ii) and/or (iii) the proceedings should be dismissed.
CONCLUSION
For the reasons set out above the proceedings are dismissed on the basis:
(a) the claimant has failed, without reasonable excuse, to comply with a direction given by the Commission or the President (PIC Rule 77(b)(ii)), and/or
(b) the claimant has failed to prosecute the proceedings with due despatch (PIC Rule 77(b)(iii)).
LEGISLATION AND GUIDELINES
In making this decision, I have considered the following:
· The Application, Reply and supporting documentation;
· MAI Act;
· Motor Accident Guidelines;
· Motor Accident Injuries Regulation 2017;
· the PIC Act, and
· the PIC Rules.
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