Katrib v QBE (Insurance) Australia Limited
[2022] NSWPICMR 3
•19 January 2022
| CERTIFICATE OF DETERMINATION OF MERIT REVIEWER | |
| CITATION: | Katrib v QBE (Insurance) Australia Limited [2022] NSWPICMR 3 |
| CLAIMANT: | Eddie Katrib |
| INSURER: | QBE (Insurance) Australia Limited |
| MERIT REVIEWER: | Terence O’Riain |
| DATE OF DECISION: | 19 January 2022 |
| CATCHWORDS: | MOTOR ACCIDENTS- Merit review; dismissal, lack of jurisdiction; Personal Injury Commission Rules 2021; Personal Injury Commission Act 2020; Motor Accident Injuries Act 2017; Motor Accident Regulation 2017; costs in miscellaneous assessment; section 8.10 Motor Accident Injuries Act 2017 applicable only to statutory benefits dispute; Held- application dismissed pursuant to rule 77(b)(iv) of the Personal Injury Commission Rules 2021. |
| DETERMINATIONS MADE: | 1. There is a dispute between Eddie Katrib and the insurer in respect to recovery of legal costs under section 8.10 of the Act from a miscellaneous assessment. 2. The parties concede that I do not have jurisdiction to apply this section to miscellaneous assessments. 3. The application is dismissed pursuant to rule 77(b)(iv) of the PIC Rules because there is no jurisdiction to determine the dispute to which the application relates. |
Background
There is a dispute between Eddie Katrib and the insurer about whether costs and expenses incurred in a miscellaneous assessment arising under schedule 2(3)(h) of the Motor Accident Injuries Act 2017 (the MAI Act) are reasonable and necessary and can be awarded in excess of the regulated costs on the basis of exceptional circumstances under section 8.10(4)(b) of the MAI Act.
The applicant, Eddie Katrib sustained physical and psychological injuries and impairments in the subject motor vehicle accident on 16 September 2018.
Mr Katrib’s application for personal injury benefits was accepted and a claim for common law damages was lodged on 23 July 2020.
On 17 November 2020 the insurer requested further and better particulars. At that time Shine Lawyers acted for Mr Katrib. Mr Katrib and his current lawyers were not aware of that request until 7 July 2021.
On 15 March 2021 the insurer sent a further request for particulars and on 16 March 2021 the insurer sent a section 6.26 of the MAI Act direction to provide particulars, which Mr Katrib or his current lawyers’ attention did not see until 7 July 2021.
As the claimant did not respond within three months of the section 6.26 direction the application was deemed withdrawn.
On 14 September 2021 Mr Katrib lodged an application for miscellaneous assessment to set aside the deemed dismissal in the Personal Injury Commission. This assessment would have been dealt with under schedule 2(3)(h) of the MAI Act.
The miscellaneous claims dispute was resolved between the parties, and this application for merit review was lodged under schedule 2(1)(aa) of the MAI Act when the insurer declined to pay costs in excess of schedule 1(3)(1) of the Motor Accident Injuries Regulation 2017.
Submissions
Claimant’s submissions
Section 8.10 (1) of the MAI Act provides that a statutory benefits claimant is entitled to recover reasonable and necessary legal costs from the relevant insurer, and other costs and expenses, which the claimant incurred “in connection with the claim”.
Whilst the Regulations and the regulated maximum fee may be dispute based, the costs in this instance are not being awarded to the Regulation. The costs are being awarded pursuant to the power vested in the Commission’s power to award costs at section 8.10(3) of the MAI Act, in the exceptional circumstances identified in section 8.10(4)(b). There is no qualification in section 8.10(4)(b) of the MAI Act limiting the costs to the costs dispute. Rather, all that is required is that there be exceptional circumstances which justify payment of legal costs to the claimant.
When section 8.10 of the MAI Act is read as a whole, the Commission’s power to award costs incorporates the full costs in connection with the claim identified in section 8.10(1) of the MAI Act. This is particularly so when consideration is given to section 8.10(4)(a) of the Act and evidenced intent to protect children and legally incapacitated.
The claimant submits on the proper construction of section 8.10, when the Commission is awarding costs exercising the exceptional circumstances power, there is no limitation to the costs of “the dispute”. Despite this submission, the claimant has limited the recovery of costs to effectively the cost of the dispute.
Extensive preparations can be required before a dispute can be lodged. Those costs are entirely appropriately categorised as costs of the dispute that ensues.
In accordance with section 8.10(1), the Member should allow costs that are reasonable or necessary legal costs which the claimant incurs in connection with the claim/dispute.
Insurer’s submissions
The insurer submits that Mr Katrib’s solicitors failed to demonstrate why this dispute is unusual or out of the ordinary. The claimant’s solicitors were not required to show special skill and there were no complex medical issues or volume of material that illustrated exceptional circumstances. The solicitors did not "undertake extra work", rather they caused a five month delay. In the insurer's submissions, if Mr Katrib’s solicitor did undertake extra work, the extra work was caused by that solicitor’s own failure for not complying with the Notice and/or providing the insurer with relevant particulars.
Reasons
Jurisdiction
On 8 December 2021, via the dispute officer with conduct of this file, I asked the parties to provide submissions that considered the heading of section 8.10 of the MAI Act[1] and whether that has any application to the matter of costs arising from resolving a miscellaneous assessment.
[1] 8.10 Recovery of costs and expenses in relation to claims for statutory benefits
On 13 December 2021, I received further submissions from Mr Katrib’s solicitors addressing the insurer’s earlier submissions.
On 14 January 2022, I arranged for a teleconference with the parties at 10 am on 18 January 2022.
James Chrara of the Firm Law Group attended for the claimant and Homira Haideri of McCabes for the insurer.
I asked the parties, given the wording of section 8.10 of the MAI Act, whether they had considered if I had jurisdiction to deal with a dispute about costs in the miscellaneous claims assessment, when the section is restricted to costs in statutory benefits disputes. Mr Chrara made brief submissions that initially his reading of section 6.26 (3) of the MAI Act meant that the deemed dismissal of the claim was not only applicable to the common law claim, but it also included the statutory benefits claim. In his view this dispute engaged the legislation regarding costs in statutory benefits disputes.
However, he conceded that was not the case, because it was a dispute about the dismissal of a common law claim only. He conceded that I did not have jurisdiction to deal with the miscellaneous costs dispute in these circumstances.
Ms Haideri concurred with the claimant's submissions.
I confirmed that as I do not have jurisdiction to deal with this matter that I will dismiss this application.
Conclusion
The application is dismissed pursuant to rule 77(b)(iv) of the PIC Rules because there is no jurisdiction to determine the dispute to which the application relates.
Legislation and Guidelines
In making this decision, I have considered the following:
· The application, reply and supporting documentation
· the MAI Act
· Personal Injury Commission Rules 2021
· Motor Accident Injuries Regulation 2017, (the Regulation)
Terence O'Riain
Merit Reviewer
Personal Injury Commission
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