Kadour v Insurance Australia Limited t/as NRMA Insurance
[2025] NSWPIC 195
•9 May 2025
| CERTIFICATE OF DETERMINATION OF MEMBER | |
| CITATION: | Kadour v Insurance Australia Limited t/as NRMA Insurance [2025] NSWPIC 195 |
| CLAIMANT: | Sarah Kadour |
| INSURER: | Insurance Australia Limited t/as NRMA Insurance |
| MEMBER: | Bianca Montgomery-Hribar |
| DATE OF DECISION: | 9 May 2025 |
CATCHWORDS: | MOTOR ACCIDENTS - Motor Accident Injuries Act 2017; claim for damages; failure to provide relevant particulars required by section 6.25; deemed withdrawal of claim for damages by operation of section 6.26; application for reinstatement three years or more after accident; reinstatement not opposed by insurer; statutory declarations provided by claimant; consideration of full and satisfactory explanation for failure to provide required particulars; consideration of total amount of damages likely to be awarded; Held – claimant’s explanation full and satisfactory; claimant’s total amount of damages likely to be awarded exceeds threshold provided by section 6.26(7); claim should be reinstated. |
| DETERMINATIONS MADE: | CERTIFICATE 1. In accordance with s 6.26(7) of the Motor Accident Injuries Act 2017 (NSW), the Commission is satisfied: (a) the claimant has a full and satisfactory explanation for the failure to provide the required particulars, and (b) the total damages of all kinds likely to be awarded to the claimant if the claim succeeds are not less than $147,000 being 25% of the maximum amount that may be awarded for non-economic loss under s 4.13 as at 14 December 2020. 2. The claimant’s claim for damages should be reinstated. 3. The insurer is to pay the claimant’s expenses incurred in connection with the claim pursuant to s 8.10(1) of the MAI Act in the sum of $1,992 plus GST. A statement setting out the Commission’s reasons is included with this certificate. |
STATEMENT OF REASONS
INTRODUCTION
Sarah Kadour (claimant) was injured in a motor accident on 14 December 2020. A vehicle driven by the insured came from the transverse road at the intersection of Punchbowl Road and The Boulevarde, Punchbowl, NSW, where the claimant was stationary at a red traffic light and skidded, colliding with the claimant’s vehicle on the driver side (accident).
The claimant made an application for statutory benefits and a claim for damages under the Motor Accident Injuries Act 2017 (NSW) (MAI Act) on Insurance Australia Limited trading as NRMA Insurance (the insurer).
This matter requires determination of whether the claimant’s claim for damages should be reinstated pursuant to sub-section 6.26(7) of the MAI Act.
The insurer does not oppose the application for reinstatement. Accordingly, it is a matter for the Personal Injury Commission (Commission) to make the appropriate order if the Commission is satisfied the claimant has a full and satisfactory explanation for the failure to provide the required particulars.
RELEVANT LEGISLATION
Section 6.25 of the MAI Act imposes a duty on a claimant for damages to provide relevant particulars about a claim to the insurer as expeditiously as possible. It provides:
“6.25 Duty of claimant to provide relevant particulars of claim for damages
(1) A claim for damages must provide the insurer of the person against whom the claim is made with all relevant particulars about the claim as expeditiously as possible after the claim is made.
(2) For the purposes of this section, relevant particulars about a claim are full details of—
(a)the motor accident concerned, and
(b)the injuries sustained by the claimant in the motor accident, and
(c)all disabilities and impairments arising from those injuries, and
(d)any economic losses and other losses that are being claimed as damages,
sufficient to enable the insurer, as far as practicable, to make a proper assessment of the claimant’s full entitlement to damages.”
The consequences for a failure to comply with this duty are set out in s 6.26 of the MAI Act. Relevantly, s 6.26 provides:
“6.26 Consequences of failure to provide relevant particulars of claim for damages
(1) If after a period of 2 years and 6 months since the motor accident concerned a claimant for damages has failed without reasonable excuse to provide the insurer with all relevant particulars about the claim (as required by section 6.25), the insurer may by a written direction given to the claimant within 2 months after the end of that period require the claimant to provide those particulars.
(2) The insurer’s direction must be given in accordance with the Motor Accident Guidelines.
(3) If the claimant does not comply with the direction within 3 months after it is given, the claimant is taken to have withdrawn the claim.
(4) The claimant may make an application for reinstatement of the claim—
(a)to the Commission for a claim that is not exempt from assessment under Division 7.6 or
(b) to a court of competent jurisdiction for a claim that is exempt from assessment under Division 7.6.
(5) (Repealed)
(6) If the application for reinstatement is made less than 3 years after the date of the motor accident, the claim is to be reinstated if the court or Commission is satisfied that the claimant has a full and satisfactory explanation for the failure to provide the required particulars.
(7) If the application for reinstatement is made 3 years or more after the date of the motor accident, the claim is to be reinstated if the court or the Commission is satisfied that—
(a)the claimant has a full and satisfactory explanation for the failure to provide the required particulars, and
(b)the total damages of all kinds likely to be awarded to the claimant if the claim succeeds are not less than 25% of the maximum amount that may be awarded for non-economic loss under section 4.13 as at the date of the motor accident.
(8) This section does not apply to a claim that, as at 2 years and 6 months since the motor accident concerned, is the subject of a determination by a medical assessor declining to make an assessment under Division 7.5 of the degree of permanent impairment of the injured person because the impairment caused by the injury has not become permanent.”
The definition of “full and satisfactory explanation” for the purposes of Part 6 of the MAI Act is set out in s 6.2 and provides:
“6.2 Meaning of “full and satisfactory explanation” by claimant
(1) For the purposes of this Part, a full and satisfactory explanation by a claimant for non-compliance with a duty or for delay is a full account of the conduct, including the actions, knowledge and belief of the claimant, from the date of the accident until the date of providing the explanation.
(2) The explanation is not a satisfactory explanation unless a reasonable person in the position of the claimant would have failed to have complied with the duty or would have been justified in experiencing the same delay.”
On the papers
Section 52(3) of the Personal Injury Commission Act 2020 (NSW) (PIC Act) provides:
“(3) If the Commission is satisfied that sufficient information has been supplied to it in connection with proceedings, the Commission may exercise functions under this Act and enabling legislation without holding any conference or formal hearing.”
At the preliminary conference on 2 April 2025, the parties consented to the dispute being determined on the basis of the documents before me and the submissions of the parties, and without holding a formal hearing.
Having considered s 52 of the PIC Act, Procedural Direction PIC2 and the documents before me, I am satisfied that I have sufficient information available to me to allow me to determine the issues in dispute ‘on the papers’ and without holding a formal hearing, and that this is the appropriate course in the circumstances.
APPLICATION OF SS 6.25 AND 6.26 OF THE MAI ACT
It is accepted that the claimant did not comply with s 6.25 of the MAI Act. On 26 April 2023, the insurer issued a request for particulars to the claimant. It is accepted that the claimant did not respond to this request.
By cover letter dated 25 July 2023, the insurer issued a direction to produce particulars pursuant to s 6.26 of the MAI Act (6.26 Direction) which was dated 21 July 2023. The 6.26 Direction requested the claimant provide “relevant particulars” about her claim as required by and defined in s 6.25 of the MAI Act. The claimant accepts that the 6.26 Direction was in the required form and I find that it was issued in accordance with s 6.26(2) of the MAI Act.
It is accepted that the claimant did not respond to the 6.26 Direction. Accordingly, I find the claimant’s damages claim is taken to have been withdrawn by operation of s 6.26(3) of the MAI Act.
On 13 September 2024, the insurer’s solicitors wrote to the claimant advising that, as she was yet to provide relevant particulars pursuant to s 6.25 of the MAI Act, she was taken to have withdrawn the claim pursuant to s 6.26(3). The insurer requested that the claimant advise whether she intended to make an application for reinstatement.
On 18 September 2024, the claimant’s solicitor informed the insurer that she intended to apply for reinstatement of the claim and on 23 October 2024 the claimant’s legal representative lodged an application for reinstatement with the Commission pursuant to sub-section 6.26(4) of the MAI Act.
The claimant’s application contended that the claim had not been withdrawn given the operation of s 6.26(8) of the MAI Act or, if s 6.26(8) was found not to apply, sought reinstatement pursuant to s 6.26(7).
On 2 April 2025, the insurer confirmed that it no longer opposed the claimant’s application for reinstatement pursuant to s 6.26(7) of the MAI Act. Also on 2 April 2025, the claimant confirmed that, given the insurer’s position on the reinstatement application, she no longer pressed her submissions regarding s 6.26(8) of the MAI Act.
As the accident occurred on 14 March 2020, the application for reinstatement was made over three years after the date of the accident and accordingly sub-section 6.26(7) of the MAI Act applies in determining whether the claim is to be reinstated. Further, for the purposes of sub-section 6.26(7), the date of the motor accident was 14 December 2020, at which time the maximum amount that may be awarded for non-economic loss was $590,000.
The issue is now whether the claimant can satisfy me that her claim should be reinstated pursuant to sub-sections 6.26(4) and (7) of the MAI Act.
While the insurer does not oppose the application for reinstatement, this is not determinative of the issue in dispute. Rather, the Commission must be satisfied of the elements set out in sub-section 6.26(7) of the MAI Act in order for the claimant’s claim for damages to be reinstated.
Schedule 2 sub-clause (3)(h) of the MAI Act declares whether for the purposes of Part 6 (Motor accident claims) the claimant has given a full and satisfactory explanation for non-compliance with a duty or for delay to be a miscellaneous claims assessment matter. Subclause 3(n) of schedule 2 further provides that any issue of liability for a claim, or part of a claim, for statutory benefits not otherwise specified in this Schedule is also a miscellaneous claims matter for the purposes of Part 7.
SUBMISSIONS
In addition to the written submissions lodged by the parties, the matter was listed for preliminary conferences on 25 November 2024, 27 February 2025 and 2 April 2025. At these preliminary conferences, the parties made oral submissions in relation to the issue in dispute, which were of assistance to the Commission. The parties written and oral submissions have been considered.
Claimant’s submissions
The claimant has put on four sets of written submissions dated 23 October 2024, 15 January 2025, 28 January 2025 and 13 March 2025.
In summary, the claimant says that, as at 25 July 2023, being when the insurer issued the 6.26 Direction, she was unable to provide relevant particulars as the relevant non-threshold injury had not been determined and, based on the medical assessments available at the time, there was no entitlement to non-economic loss or economic loss.
The claimant’s solicitor says he wrote to the insurer’s solicitor on 30 July 2024, prior to the expiry of the two-month period provided by s 6.26(1) of the MAI Act, enquiring as to what further particulars were required. The claimant’s solicitor submits he did not receive a reply. On 13 September 2024, the claimant’s solicitors received a letter that the claimant had failed to comply with the 6.26 Direction and therefore, pursuant to s 6.26(3), the claimant was taken to have withdrawn her claim.
The claimant says it is arguable whether the claimant failed to provide full particulars of the claim. In any event, on 18 September 2024, the claimant’s solicitor notified the insurer that the claimant intended to apply for reinstatement and provided particulars of the claimant’s employment and a schedule of damages.
The claimant says her psychological injury has deteriorated, and it was not possible to determine the quantum of the claim or provide further particulars until recently. If there is fault on the part of the claimant, then the claimant’s solicitor says it is their fault and not the claimant who relied on the solicitor.
The claimant submits that she has a permanent non-threshold psychiatric injury and ongoing physical injuries which permanently incapacitate her for work. The claimant utilises a retirement age of 67 and calculates her future economic loss based on 43 years of working life. That is, Multiplier 938 x $550 x .85, being $438,515 plus 11% superannuation. Her past economic loss is submitted to be $47,563. Accordingly, the claimant submits that she exceeds the relevant financial threshold in s 6.26(7)(b) of the MAI Act.
Insurer’s submissions
The insurer has put on written submissions dated 12 November 2024 and 17 February 2025. While these submissions have been considered, they have not been summarised in light of the insurer’s revised position that it no longer opposes the claimant’s reinstatement application.
EVIDENCE
The insurer has provided a bundle of documents of approximately 565 pages. The claimant has provided three bundles of documents consisting of approximately 70 pages, 46 pages and 131 pages, respectively. The documents contained in the four bundles have been considered. While all documents have been considered for the purposes of this decision, only several of the documents have been briefly summarised.
Claimant’s statutory declarations
The claimant has provided two statutory declarations dated 23 January 2025 and 13 March 2025.
She says that, on around 21 May 2021, being approximately six months after the accident, she instructed solicitors in respect of her claim. From that time onwards, she relied on her solicitors entirely to advise her of what she was required to do and the timeframes in which to do so. The claimant states that she had no knowledge whatsoever of any breach of timeframes and relied upon her solicitors at all times to comply with any timeframes and prepare her claim.
Her statement briefly sets out the difficulties she has experienced since the accident as a result of her physical and psychiatric injuries. Relevantly, the claimant notes her prior understanding from her solicitors that, as her injuries were considered threshold injuries, she was not entitled to claim damages.
The claimant also notes that she has had a permanent health condition, being sickle cell anaemia, since she was a child. While she says she had been “able to live a normal life mostly”, she has had multiple admissions to hospital over the years because of this condition.
Medical assessments
Medical Assessor Matthew Jones, psychiatrist, undertook a medical assessment of the claimant and issued a certificate regarding Permanent Impairment (Psychological) on
20 November 2022. Medical Assessor Jones diagnosed Chronic Adjustment Disorder with Depressed Mood and Mixed Anxiety, caused by the accident. Medical Assessor Jones opined the claimant’s degree of permanent impairment caused by the accident to be 6%.
Medical Assessor Alexander Woo, orthopaedic surgeon, undertook a medical assessment of the claimant and issued a Permanent Impairment (Physical) certificate on 14 November 2022. Medical Assessor Woo certified that the claimant’s physical injuries gave rise to a permanent impairment of 8%.
Medical Assessor Yu Tang Shen undertook an assessment of Threshold Injury (Psychological) on 18 December 2023 and issued a certificate dated 4 January 2024. Medical Assessor Shen certified that the major depressive disorder was caused by the accident and not a threshold injury for the purposes of the Act. Medical Assessor Shen opined that the circumstances of the subject accident were not of sufficient degree as to consider a post-traumatic stress disorder. He noted that the claimant has demonstrated a degree of depressive symptoms and, given the duration of her physical disability, considered it plausible that her depressive symptoms have worsened. Medical Assessor Shen opined that she has endorsed sufficient symptomology, to a sufficient degree of distress, that would qualify for a Major Depressive Disorder as opposed to a chronic adjustment disorder which is secondary to her physical injury and pain.
Medical Assessor David McGrath undertook an assessment of Threshold Injury (Physical) on 9 May 2024 and issued a certificate dated 15 May 2024. Medical Assessor McGrath certified that the right ankle injury, right knee injury, lumbar spine injury and right shoulder injury were caused by the accident and each a threshold injury for the purposes of the MAI Act. Medical Assessor McGrath also certified that a right ankle injury caused by the accident had resolved.
DETERMINATION
Should the claim be reinstated?
The application for reinstatement was made more than three years after the date of the accident. Accordingly, s 6.26(7) of the MAI Act applies to the application for reinstatement.
Section 6.26(7) is a two-part test. First, the claimant must provide a full and satisfactory explanation for the delay. The meaning of “full and satisfactory” for the purposes of Part 6 of the MAI Act, being the part in which s 6.26(7) appears, is provided by s 6.2 of the MAI Act.
Secondly, the total damages of all kinds likely to be awarded must be not less than 25% of the maximum amount that may be awarded for non-economic loss under s 4.13 of the MAI Act as at the date of the relevant accident.
Is the claimant’s explanation full and satisfactory?
There is considerable case law regarding the meaning of the phrase “full and satisfactory”.
Karambelas v Zaknic (No. 2) [2014] NSWCA 433 discussed the meaning of s 66(2) of the Motor Accidents Compensation Act 1999 (the MAC Act) which is the predecessor to s 6.2 of the MAI Act. Justice Meagher (with whom Basten and Simpson JJA agreed) stated:
“[16] An explanation is ‘full and satisfactory’ within s 66(2) if it satisfies two requirements. First, it must include a full account of the conduct, including the actions, knowledge and belief of the claimant, from the date of the accident until ‘the date of providing the explanation’. In the case of a late claim under s 73(1) that is the date on which the explanation is first provided. Secondly, the explanation must be such that a reasonable person in the position of the claimant ‘would have been justified in experiencing the same delay’.”
Further, it is noted that “[t]he provision does not call for perfection, or ... for prolix or burdensome recounting of every moment that has elapsed”: Walker v Howard (2009) 78 NSWLR 161; [2009] NSWCA 408 (Walker) at [104].
Is the claimant’s explanation full?
As to whether the claimant’s explanation is “full”, the word “takes its meaning from the context. It refers to the conduct bearing upon the delay, and the state of mind of the claimant”: Russo v Aiello [2003] HCA 53 per Gleeson CJ.
In Rahman v Al-Maharmeh (2021) 95 MVR 394; [2021] NSWCA 31 (Rahman), Brereton JA noted, in respect of the predecessor to s 6.2 of the MAI Act:
“[39] While the ‘full account of the conduct’ referred to in the first sentence of s 66(2)MAC Act is not confined to that of the claimant personally but extends to the conduct of those who have acted or purported to act on behalf of the claimant, so far as it is relevant to the delay, this does not mean that the explanation is required to include ‘the actions, knowledge and belief’ of the solicitors, as distinct from the claimant: it is the claimant who must provide the explanation for the claimant’s delay in commencing proceedings.”
Accordingly the explanation for the delay is to be provided by the claimant.
The claimant’s statutory declarations provide an account of her conduct and in particular her reliance on her solicitors to progress her claim. She notes she was 20 years old at the time of the accident. She was working part-time and receiving a Centrelink pension because of her sickle cell anaemia. Her declarations also briefly outline the impact that her physical and psychological injuries which she says were caused by the accident have had on her life.
The claimant’s explanation is short. In effect, she relied on her solicitors to progress her claim. There can be no criticism of the claimant for this. Her solicitors have put on submissions explaining why no particulars were provided, noting that at the time of the 6.26 Direction the claimant was considered to have threshold injuries and therefore was not entitled to damages. If there is any fault, the submissions dated 23 October 2024 note it is a fault of the solicitor and not the claimant, who relied on the solicitor.
In the bundles of documents filed by the parties, there are several medical assessments which certify the claimant’s injuries to be threshold injuries and the claimant’s degree of permanent impairment to be less than 10%. This does not explain why the solicitors did not respond to the insurer’s emails requesting particulars or to the 6.26 Direction. However, I accept that this is a fault of the solicitor and not the claimant. Her solicitors have conceded that any fault is a fault on their part.
Included in the claimant’s bundle of documents is an email from the claimant to her solicitor, where she forwards the 6.26 Direction from the insurer to her solicitor and asks what it is. Her solicitor’s email in response tells her to “Please disregard it”. It is clear that the claimant entrusted the conduct of her claim to her solicitor and was entitled to rely on them to do everything necessary to progress her claim. As distinct from the circumstances in Nominal Defendant v Browne (2013) 64 MVR 214, the claimant has provided some detail of the instructions given to and the advice received from her solicitors.
The claimant was not equipped to second guess her solicitor’s advice to disregard the insurer’s correspondence or to question their conduct of her matter. Their failure is not her failure.
Given the essence of the claimant’s explanation, I consider it to be full for the purposes of the MAI Act despite its brevity. She relied on her legal representatives. She was not aware of the specific requirements of ss 6.25 and 6.26 of the MAI Act, nor is it expected that a reasonable person in the position of the claimant would be aware of the requirements and time limits set out in those provisions. There is nothing more she could have said in this regard.
I am satisfied that the statutory declarations provided by the claimant fully explains the reasons why, from the date of the accident until the date of the statutory declarations, she had not provided “relevant particulars” within the meaning of the relevant sections of the MAI Act.
Is the explanation satisfactory?
Section 6.2 of the MAI Act requires that the claimant’s explanation be both full and satisfactory. The legislation states that an explanation is not a satisfactory explanation unless a reasonable person in the position of the claimant would have failed to comply with the duty.
The claimant was 20 years old at the time of the accident and living with a chronic illness which impacted her ability to work full time prior to the accident. There is evidence before me that she has been hospitalised on several occasions since the accident due to her sickle cell anaemia. The claimant also says her mental health has suffered as a result of the accident.
The claimant engaged solicitors to take carriage of her claim and, on at least one occasion, reached out to query the response in relation to the 6.26 Direction and was told by her solicitors to disregard it.
The decision of Smith v Grant (2006) 67 NSWLR 735 involved an appeal of the grant of an extension of time where the claimant’s solicitor had lodged the application more than three years from the date of the accident. In such circumstances, the claimant was required to seek leave pursuant to s 109 of the Motor Accidents Compensation Act 1999, which required the claimant to provide a full and satisfactory explanation to the court for the delay. The Court of Appeal noted:
“[60] Accordingly, the weight of authority under the 1988 Act in this court favoured the view that if a claimant could reasonably rely upon the conduct and advice of his or her solicitors, although it was negligent, such reliance could provide a satisfactory explanation for the delay in commencing proceedings.”
Similar to the provision considered in Smith, there is nothing in the language of s 6.26 which requires the conduct of the solicitor to be “justified”: Smith at [74].
I find that a reasonable person in the position of the claimant would have relied upon their solicitor’s response and followed their instructions to disregard the insurer’s correspondence. This is not a matter where the claimant failed to provide instructions or ignored requests from her solicitors. Her solicitors, in turn, considered it was not necessary to provide the relevant particulars as, in their view, the claimant did not have a right to damages under the MAI Act at the time.
As noted above, the standard of explanation is not perfection: Walker at [104] and [108].
I find that the claimant’s explanation is such that a reasonable person in her position would have been justified in failing to comply with the duty to provide the “relevant particulars”.
Does the claimant satisfy the threshold in s 6.26(7)?
As at the date of the accident, being 14 December 2020, the maximum amount for non-economic loss was $590,000. Accordingly, I must be satisfied that the total amount of damages likely to be awarded to the claimant exceeds 25% of $590,000, being $147,000.
My assessment of the claimant’s likely amount of damages for the purposes of the current dispute is a “predictive exercise, based on a preliminary enquiry involving a cursory assessment of the available material, in which the question is whether there is ‘a real and not a remote chance or possibility, regardless of whether it is less or more than 50 per cent’, that the total damages will exceed the relevant threshold”: Rahman at [47].
The claimant has provided a schedule of damages dated 13 March 2025, claiming a total economic loss of $534,314. The claimant has also provided her individual tax returns for the financial years 2019 to 2024, inclusive, and payslips in respect of her earnings since the accident.
Based on my review of the documents before me and the submissions from the parties, and noting the claimant’s history of chronic illness, if causation of her injuries is accepted to cause even partial incapacity then I find that she would likely be awarded an amount of damages that exceeds the relevant threshold.
FINDINGS
In accordance with s 6.26(7) of the MAI Act, the Commission is satisfied:
(a) the claimant has a full and satisfactory explanation for the failure to provide the required particulars, and
(b) the total damages of all kinds likely to be awarded to the claimant if the claim succeeds are not less than $147,000 being 25% of the maximum amount that may be awarded for non-economic loss under s 4.13 as at 14 December 2020.
The claim for damages made by the claimant should be reinstated.
COSTS
At the preliminary conference on 2 April 2025, I directed the parties to confer with the intention of seeking to agree costs. As no agreement was reached, both parties put on submissions in respect of the claimant’s costs of this matter.
The insurer submits that, in circumstances where the application was required to be lodged due to the claimant’s non-compliance with the procedural requirements, the claimant should not be entitled to recover any costs.
The claimant submits that costs should be allowed per the regulations as she contends that the claim should not have been deemed as withdrawn given the operation of s 6.26(8) of the MAI Act. Appropriately, the claimant seeks regulated rather than exceptional costs.
This is a miscellaneous claims assessment matter and pursuant to cl 3(1) of Part 1, Schedule 1 of the Motor Accident Injuries Regulation 2017 (NSW) (Regulations) the maximum costs for legal services provided to a claimant in connection with an assessment under Division 7.6 of the MAI Act involving a dispute about a regulated miscellaneous claims assessment matter is 16 monetary units.
I note that the claimant withdrew her submissions regarding s 6.28(8) of the MAI Act in light of the insurer’s revised position in respect of the reinstatement application. Accordingly, whether s 6.28(8) applied was not required to be determined.
I do not consider that the claimant should be penalised for what I consider to be an appropriate withdrawal in light of the insurer’s concession regarding the reinstatement application. This withdrawal was aligned with the Commission’s guiding principle to facilitate the just, quick and cost-effective resolution of the real issues in the proceedings: s 42 of the PIC Act.
The insurer’s submission ignores that cl 2(h) of Part 1, Schedule 1 of the Regulations provides that whether for the purposes of Part 6 of the MAI Act the claimant has given a full and satisfactory explanation for non-compliance with a duty or for delay is a “regulated miscellaneous claims assessment matter”. Whether it was the claimant’s alleged conduct that led to the miscellaneous claims assessment matter being lodged is not relevant for the purposes of costs.
I am of the view that costs have been incurred by the claimant. The claimant’s solicitors prepared detailed submissions and supporting evidence in relation to this application. They participated in several preliminary conferences. While a face-to-face hearing was not required, the insurer opposed the reinstatement application until 21 March 2025, being after the claimant’s written submissions and evidence had been filed.
Noting the nature of the application and the submissions and evidence prepared by the claimant, I consider that it is appropriate for costs to be awarded in the maximum amount provided for under the Regulations, being 16 monetary units.
I allow regulated costs in the sum of $1,992 plus GST.
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