Leary v Allianz Australia Insurance Limited

In the matter of Leary v Allianz Australia Insurance Limited, the court was asked to consider Allianz's application to dismiss proceedings that referred the claimant's damages claim to the Commission for assessment. The dispute centred around whether the claimant, Leary, had failed to comply with the requirements of section 7.32(3) of the Motor Accident Injuries Act 2017 by not using her best endeavours to settle the claim before referring it for assessment. The decision was handed down in the context of the Personal Injury Commission Act 2020, which aims to facilitate just, quick, and cost-effective resolution of real issues in proceedings.

The central legal issue was whether the claimant had indeed used her best endeavours to settle the claim in accordance with the statutory requirements. Allianz argued that Leary had not made sufficient efforts to settle the claim, while Leary contended that she had done everything necessary to resolve the matter prior to seeking the Commission's assessment. The court had to determine if the claimant's actions aligned with the statutory obligations and assess whether the dismissal of proceedings would align with the objectives of the 2017 Act.

The court held that Leary had made sufficient efforts to settle the claim, thereby satisfying the requirements of section 7.32(3) of the 2017 Act. It was noted that had the court found otherwise, the proceedings would not have been dismissed. The court also considered the overarching objectives of the 2017 Act and the 2020 Act, concluding that dismissing the proceedings would not have served these purposes. The court applied the guiding principle found in section 42 of the 2020 Act and cited precedents from Mammone v Insurance Australia Limited t/as NRMA and Golding v NRMA to support its decision. The court dismissed the insurer's application, allowing the claim to proceed for assessment by the Commission.