Lim v AAI Limited t/as GIO - [2022] NSWPICMR 61

CERTIFICATE OF DETERMINATION OF MERIT REVIEWER
Citation:	Lim v AAI Limited t/as GIO [2022] NSWPICMR 61
ClaimanT:	Back Chun Lim
Insurer:	AAI Limited t/as GIO
Merit Reviewer:	Ray Plibersek
DATE OF DECISION:	28 October 2022
CATCHWORDS:	MOTOR ACCIDENTS - Merit Review; dispute over payment of interpreter invoices; whether the Personal Injury Commission (Commission) has jurisdiction to determine merit review; fees for the interpreting services in dispute are not ‘weekly payments’ and are not ‘treatment and care’; claim for legal costs; sections 6.21, 7.42 and 8.10 of the Motor Accident Injuries Act 2017 (2017 Act); Held – cost of interpreters invoices are not payable under either sections 3.24 or 3.28 of the 2017 Act; cost of interpreters invoice is not payable under section 8.10 of the 2017 Act; Commission does not have jurisdiction to conduct a merit review about interpreter invoices under Schedule 2 sub-clause 1(aa); no exceptional circumstances exist to justify additional legal costs under section 8.10(4) of the 2017 Act; no legal costs are payable under section 7.42 of the 2017 Act; no costs penalty is payable under section 6.21 of the 2017 Act; decision in ABV v AAI Ltd t/as GIO followed; decision in in ALV v NRMA Insurance (Merit Review) distinguished.
Determinations made:	1. The Personal Injury Commission (the Commission) does not have jurisdiction to review the disputes over the payment of interpreter invoices referred to in the claimant’s two applications (A10379297/21 and A10387487/21) dated 18 January and 9 February 2021. 2. In both of the applications for review, and in accordance with the Motor Accident Injuries Act 2017 (the MAI Act) and the Motor Accident Injuries Regulation 2017 (the Regulations), no legal costs are payable under either s 7.42 or sub-section 8.10(4). No costs penalty is payable under s 6.21.

BACKGROUND

There are two applications for merit review for disputes between Mr Back Chun Lim (the claimant) and AAI Ltd t/as GIO (the insurer) about the payment of the cost of the provision of interpreter services and also over the payment of legal costs.
Because the disputes are essentially about the same issues and involve very similar arguments , except they deal with different invoices for interpreter services, I will deal with both applications for review together in one set of reasons.
The claimant was injured in a motor vehicle accident on 12 March 2020.
After the accident the claimant reported injuries included: neck, both shoulders, back and psychological injuries.
By an application dated 18 January 2021, the claimant’s solicitor applied for a review of a number of decisions made by the insurer. This is matter number A10379297/21, ( the first application).
By a second application dated 9 February 2021, the claimant’s solicitor applied for another review of a number of decisions made by the insurer. This is matter number A10387487/21 (the second application)..
The subject of these two review applications is whether the costs of a number of invoices for Korean interpreting services should be paid by the insurer. The interpreters assisted Mr Lim…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2022] NSWPICMR 61
Decision Date: 28 October 2022

CaseChat Overview and Summary

The dispute in Lim v AAI Limited t/as GIO revolves around the interpretation and application of various sections of the Motor Accident Injuries Act 2017 (2017 Act) in relation to the payment of interpreter invoices following a motor accident. The Personal Injury Commission (Commission) was asked to adjudicate on the matter, and the decision was subject to review by the court. The primary legal issues that the court was required to decide pertained to the interpretation of specific provisions within the 2017 Act, specifically sections 3.24, 3.28, 6.21, 7.42, 8.10, and Schedule 2 sub-clause 1(aa), and the applicability of these provisions to the payment of interpreter invoices.

The court commenced its analysis by examining the nature of the fees in dispute, which were for interpreting services. It was established that these fees did not fall under the categories of ‘weekly payments’ or ‘treatment and care’ as defined in sections 3.24 or 3.28 of the 2017 Act. Consequently, the court concluded that these fees were not payable under either of these sections. Furthermore, the court found that the fees were not payable under section 8.10 of the 2017 Act either, as they did not constitute a ‘reasonable cost’ for the treatment and care of the injured person. The court also held that the Commission did not have the jurisdiction to conduct a merit review of the interpreter invoices under Schedule 2 sub-clause 1(aa) of the 2017 Act. The court reasoned that there were no exceptional circumstances present to warrant additional legal costs under section 8.10(4) of the 2017 Act, and thus, no legal costs were payable under section 7.42 of the 2017 Act. Additionally, the court found no grounds for imposing a costs penalty under section 6.21 of the 2017 Act.

Following the analysis, the court rendered its decision, affirming the findings of the Commission. The court followed the precedent set in ABV v AAI Ltd t/as GIO and distinguished the decision in ALV v NRMA Insurance (Merit Review). The court's decision was that the costs of the interpreter invoices were not payable under the 2017 Act, and no legal costs were payable. No further orders were made.

Orders