Lim v AAI Limited t/as GIO
[2022] NSWPICMR 61
•28 October 2022
| 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 to confer with his solicitors and seek treatment and care with his general practitioner (GP) in the presence of a NAATI-accredited Korean-speaking interpreter.
By an earlier email dated 12 August 2020, the insurer advised the claimant’s solicitors that it did not have jurisdiction to conduct an Internal Review about the dispute over the payment of interpreter invoices, (A 1).
In his merit review application the claimant maintains his claim for payment of a number of invoices for the provision of Korean interpreting services.
In the first application the payments for the invoices listed by the claimant’s solicitors are as follows:
•Invoice Number 2797 dated 8 April 2020 – ABLE Interpreting;
•Invoice Number 3280 dated 22 June 2020 – ABLE Interpreting;
•Invoice Number 4201 dated 13 October 2020 – ABLE Interpreting;
•Invoice Number 3963 dated 15 September 2020 – ABLE Interpreting;
•Invoice Number 4078 dated 29 September 2020 – ABLE Interpreting;
•Invoice Number 3728 dated 11 August 2020 – ABLE Interpreting;
•Invoice Number 3727 dated 7 August 2020 – ABLE Interpreting;
•Invoice Number 3540 dated 20 July 2020 – ABLE Interpreting;
•Invoice Number 4509 dated 24 November 2020 – ABLE Interpreting, and
•Invoice Number 4614 dated 8 December 2020 – ABLE Interpreting.
The insurer disputes that the invoices are reasonable and necessary and should be paid. In an email dated 15 February 2021 the insurer set out a table where it referred to 10 disputes and each invoice. In a column in the table it gave a detailed explanation as to why it would or would not pay for each interpreter invoice that was claimed for payment. The reasons given in the table varied and different reasons where given for each invoice disputed and listed in the table. The table also referred to some invoices that were claimed more than once.
In the second application the payments for the invoices listed by the claimant’s solicitors are as follows, (AD 2 dated 19 February 2021) :
(1)Able interpreting (NAATI Korean) invoice 4509 dated 24/11/2020 for Dr Angela Lam
(2)Able interpreting (NAATI Korean) invoice 4614 dated 08/12/2020 for Dr Angela Lam
(3)Alliance Medical Health Care Centre invoice 56774 dated 24/11/2020 for Dr Angela Lam consultation
(4)Alliance Medical Health Care Centre invoice 57350 dated 08/12/2020 for Dr Angela Lam consultation
(5)Able interpreting (NAATI Korean) invoice 3540 dated 20/07/2020 for Dr Raul Pope and Stephen Young Lawyers
(6)Able interpreting (NAATI Korean) invoice 3727 dated 07/08/2020 for Stephen Young Lawyers
(7)Able interpreting (NAATI Korean) invoice 3728 dated 07/08/2020 for Dr Angela Lam
SUBMISSIONS
In brief submissions dated 9 February 2021, (AD 1), the claimant’s solicitor sets out the basis of the merit review application. The submissions refer to two invoices numbered 2797 and 3280. They submit that the invoices are payable under three different basis: ss 3.24 (1) (a), 3.28 and 8.10 of the MAI Act.
The claimant’s solicitors set out the more detailed arguments in favour of the payment of the interpreter invoices and legal costs in their submissions both also dated 9 February 2021, (AD 3 and AD 4). In summary, the arguments made in these submissions are as follows:
(a) under sub-clause 10 (d) of the Regulations, s 7.11 of the MAI Act does not apply to a reviewable decision about whether under s 8.10 of the MAI Act costs and expenses incurred by the claimant are reasonable and necessary. In such circumstances sub-clause 10 (d) provides that an internal review is not necessary;
(b) under s 8.10 of the MAI Act the claimant is entitled to recover from the insurer the reasonable and necessary costs and expenses incurred by the claimant in connection with the claim;
(c) the Commission has jurisdiction to determine disputes arising in relation to costs and expenses as merit review matters under Schedule 2, cl 1 (aa) of the MAI Act;
(d) citing and relying on ALV v NRMA Insurance (Merit Review) [2020] NSWSIRADRS 10 , under ss 8.3 (1) (b), 8.10 (1) of the MAI Act and cl 20 of the Regulations, non-legal costs are recoverable and includes fees for interpreter or translation services;
(e) relying on ALV v NRMA Insurance (Merit Review) [2020] NSWSIRADRS 105, the DRS (now Commission) has jurisdiction to determine disputes arising in relation to costs and expenses as merit review matters under Schedule 2, cl 1 (aa) of the Act;
(f) the claimant speaks English as his second language, as such it is reasonable and necessary for him to confer and seek treatment and care with the presence of a NAATI-accredited Korean-speaking interpreter, and
(g) the claimant’s solicitor seeks a payment of legal costs under exceptional circumstances under ss 8.10 (4) and 7.42 of the MAI Act and that the DRS (now Commission) Assessor also consider a s 6.21 costs penalty for an increase of 25% costs, or 3.5% per month on late invoices as indicated on the invoices.
The claimant’s solicitors set out submissions dated 9 February 2021, (AD 4 and AD 13) about why the medical dispute over a minor injury was late. In summary, the arguments made in these submissions about why the late claim should be accepted are as follows:
(a) when the claimant received the insurer's minor injury notice they wrote to the insurer to seek to obtain the medical evidence they have relied upon for their minor injury notice;
(b) the claimant’s solicitors have been attempting to gather medical evidence to understand the insurer's determination and in support of the claimant's not-a-minor injury dispute;
(c) due to COVID 19, there has been a delay in obtaining access to supporting medical evidence and documentation;
(d) a further delay has incurred due translating all information from English to Korean to the claimant's full understanding and have come to difficulties due to symptoms arising from their psychological injury;
(e) the delay will not cause any unfairness to the insurer but would be prejudicial to the claimant's rights to entitlements should the application not be accepted, and
(f) no less than 10 hours of legal work has been performed in obtaining instructions, reviewing decisions, conducting investigations, researching and preparing for complex issues. We request consideration as to the decision and rates as outlined in AFH v AAI Limited trading as GIO [2019] NSW DRS CA 134.
The claimant’s solicitors repeat the above arguments in their submissions in the second application seeking a review about the payment of the interpreter invoices and legal costs . These submissions are dated 19 February 2021, (AD 2).
The insurer submissions concerning the payment of the invoices are dated
17 February 2021, (R 20). In summary, the insurer submissions are that:(a) clause 7.149 of the Motor Accident Guidelines version 6 states that merit review matters, where an internal review is required before a merit review, the merit review application must be made within 28 days;
(b) eight invoices have been referred by the claimant’s solicitor to the DRS, (now Commission) , outside of the 28-day timeframe stipulated by the Motor Accident Guidelines version 6. Therefore, the DRS does not have jurisdiction to accept the dispute over those invoices;
(c) the insurer will pay the cost of the ABLE Interpreting invoice dated
24 November 2020 to the maximum amount of $56;(d) the insurer will not pay for any other GP invoices and associated interpreter invoices issues after the end of the Entitlement Period (12 September 2020) as the insurer does not consider it reasonable and necessary treatment, and will not improve recovery;
(e) the insurer clearly advised the claimant that his entitlement period would end on 12 September 2020 and no further GP consultations would be approved beyond the 26 weeks of the end of entitlement period. Any associated interpreting fees, such as the interpreting service invoices dated 8 December 2020 would not be approved;
(f) the insurer notes that the GP invoice dated 24 November 2020 had been paid for by the GIO Claims Team, in error, but the services of an interpreter may be required;
(g) the insurer notes there is no dispute regarding whether the claimant requires an interpreter or not for the approved GP consultations, rather the dispute is in relation to whether the amount and time length that was being invoiced for #4509 ABLE interpreting services for an amount of $168 is reasonable noting the medical consultation was less than 20 minutes;
(h) the claimant’s solicitor firstly did not seek pre-approval in relation to the interpreting services as part of the GP request;
(i) the Commission does not have jurisdiction to conduct a merit review of the dispute referred by the claimant under cl 1(aa) of Schedule 2 because s 8.10 of the Act provides for an entitlement for the recovery of costs and expenses incurred by a claimant “in connection with the claim”. The reference to ‘claim’ in
s 8.10 is a reference to claims for statutory benefits under Part 3 of the Act. Statutory benefits are provided under Part 3 to be ‘weekly payments’ and ‘treatment and care’;(j) the items in dispute, that being interpreting services, are neither weekly payments nor fall within the definition of ‘treatment and care’ under the Act. They are not ‘statutory benefits’ under the Act. Accordingly, the claimant is not entitled to seek recovery of the costs incurred for these items. Given that interpreting services are not statutory benefits or costs incurred in connection it is making a claim for statutory benefits, the claimant does not have an entitlement to recover such costs under s 8.10 of the Act. The Commission therefore does not have jurisdiction to review the dispute under Schedule 2(1)(aa);
(k) disputes that arise relating to s 3.24 do fall within the jurisdiction of the DRS, (now Commission) under cl 1(i) of Schedule 2, as a merit review matter, reviewing whether the cost of treatment and care provided to the claimant is reasonable for the purposes of section 3.24(1)(a);
(l) the DRS, (now Commission) , does not have jurisdiction to accept and refer the dispute in relation to payment of an interpreting invoice for a medical assessment as these interpreting services invoice do not fall within the definition of ‘treatment and care’ provided under section 1.4(1) of the Act, and
(m) there is no entitlement to recover the costs of payment of an interpreting invoice under s 3.24 of the Act and the DRS therefore does not have jurisdiction to review the dispute under Schedule 2(1)(aa).
Consideration- dispute about provision of interpreter services
Both parties have made extensive submissions concerning the about the payment of the cost of the provision of interpreter services. These submissions are summarised above. In essence the insurer submits that the Commission has no jurisdiction to conduct a review of the dispute. The claimant makes a number of arguments that the interpreter costs should be paid because:
(a) the cost of interpreters invoice is reasonable for the purposes of sub-section 3.24 (1) (a) (Entitlement to statutory benefits for treatment and care);
(b) the cost of interpreters invoice is payable under s 3.28 (Cessation of statutory benefits after 26 weeks to injured adult persons most at fault or to injured persons with minor injuries), and
(c) section 8.10 (Recovery of costs and expenses in relation to claims for statutory benefits) the costs and expenses incurred by the claimant are reasonable and necessary.
Jurisdiction under s 8.10 of the MAI Act
My consideration of these arguments is as follows. These reasons and analysis applies to both of the claimant’s two applications for review (A10379297/21 and A10387487/21) dated 18 January and 9 February 2021.
Both parties in this dispute have referred in detail to the statutory provisions relevant to this dispute in their submissions. Accordingly, I will not set out in detail the text of those provisions but will only refer to them briefly.
Dealing first with the argument about whether or not the Commission has jurisdiction to conduct a merit review of the dispute under sub-clause 1(aa) of Schedule 2 of the MAI Act.
Schedule 2 sub-clause 1(aa) of the MAI Act provides that:
“The following matters are declared to be merit review matters for the purposes of Part 7…… (aa) whether for the purposes of section 8.10 (Recovery of costs and expenses in relation to claims for statutory benefits) the costs and expenses incurred by the claimant are reasonable and necessary.”
Section 8.10 of the MAI Act relevantly provides, in part, that:
“8.10 Recovery of costs and expenses in relation to claims for statutory benefits
(1) A claimant for statutory benefits is (subject to this section) entitled to recover from the insurer against whom the claim is made the reasonable and necessary legal costs, and other costs and expenses, incurred by the claimant in connection with the claim. Other costs and expenses include the cost of medical and other tests and reports.
(2) The regulations may make provision for or with respect to fixing the maximum costs and expenses recoverable by a claimant under this section (including any matters for which no costs and expenses are recoverable from the insurer)…..”In my view, the Commission does not have jurisdiction to conduct a merit review of this dispute over interpreter invoices under sub-clause 1(aa) of Schedule 2 because s 8.10 of the MAI Act provides for an entitlement for the recovery of costs and expenses incurred by a claimant “in connection with the claim”. In the context of s 8.10, the reference to ‘claim’ is a reference to claims for statutory benefits under Part 3 of the MAI Act. Statutory benefits made under Part 3 are about ‘weekly payments’ and ‘treatment and care’.
The invoices for interpreting services, are neither weekly payments nor are they within the definition of ‘treatment and care’ under the MAI Act. Thus the invoices for interpreters services are not ‘statutory benefits’ under the MAI Act.
In this dispute, the claimant does not have an entitlement to recover such interpreter invoices under s 8.10 of the MAI Act. The dispute is not a merit review matter amenable to review under Schedule 2 sub-clause 1 (aa).
My conclusion on this issue is consistent with the analysis made in ABV v AAI Ltd t/as GIO [2021] NSWPICMR 26. However, it differs to the conclusion reached in ALV v NRMA Insurance (Merit Review) [2020] NSWSIRADRS 105 which is the case relied on by the claimant’s solicitor in his submissions. Neither decision is binding on me in this review but I agree with the analysis in ABV case.
Entitlement to statutory benefits- for the reasonable cost of treatment and care- sub-section 3.24 (1) (a)
The second issue is whether the interpreter invoices give rise to an entitlement to statutory benefits for the reasonable cost of treatment and care under sub-section 3.24 (1) (a) of the MAI Act.
‘Treatment and care’ is defined under sub-section 1.4(1) of the MAI Act. In my view, interpreter services do not come within the definition of ‘Treatment and care’. Interpreter services, are not listed within the definition of ‘treatment and care’. Interpreter services, even those provided during a GP consultation to enable delivery of ‘treatment and care’, are not a form of treatment and care under Part 3 of the MAI Act.
I find that there is no entitlement to recover the costs of payment of the interpreter invoices under s 3.24 of the MAI Act and the Commission does not have jurisdiction to review the dispute under Schedule 2(1)(i).
Entitlement to statutory benefits- for treatment and care expenses incurred after more than 26 weeks - sub-section 3.28
The third issue is whether the interpreter invoices give rise to an entitlement to payment under s 3.28 of the MAI Act.
Under sub-section 3.28 (1) an injured person is not entitled to statutory benefits under this Division for treatment and care expenses incurred more than 26 weeks after the motor accident concerned if the only injuries resulting from the motor accident were minor injuries. Sub-section (3) then provides that, despite sub-section (1), statutory benefits under this Division for treatment and care expenses incurred more than 26 weeks after the motor accident concerned are payable in respect of minor injuries if the Motor Accident Guidelines authorise their payment. The payment for those expenses may be so authorised if the treatment or care will improve the recovery of the injured person, the insurer delayed approval for the treatment and care expenses or in other appropriate circumstances.
The insurer submits that in order for the treatment to be considered authorised the claimant must satisfy Part 5.16 in the Motor Accident Guidelines, (AD 3). Under sub-clause 5.16(h), insurer submits currently there is no medical evidence to suggest that ongoing GP consultations with Dr Angela Lam will improve the claimant’s recovery. The claimant’s lumbar spine, bilateral shoulders, cervical spine and psychological trauma injuries have been found to be minor in accordance with s 1.6 of the MAI Act and therefore the GP consultations are unlikely to improve the claimant’s recovery as they are unlikely to be related to the subject motor vehicle accident. Further, the insurer submits that the GP consultations are likely to be related to the claimant’s extensive multilevel degenerative findings which have been identified in the MRI imaging. The insurer submitted these degenerative changes occur with the passage of time and cannot be attributed to the subject motor vehicle accident.
I agree with those submissions from the insurer. I find that there is insufficient medical evidence to support a finding that sub-sections 3.28 (1) and (3) applies in the claimant’s case to allow for the payment of interpreter invoices for treatment and care expenses incurred more than 26 weeks in respect of minor injuries.
I find that there is no entitlement to recover the costs of payment of the interpreter invoices under s 3.28 of the MAI Act and that the Commission does not have jurisdiction to review the dispute under Schedule 2 sub-clause (1)(j).
I will now turn to deal with the claimant’s application for legal costs.
Relevant statutory provisions on legal costs
The objects of the MAI Act include, at sub-clause 1.3(2)(g), ‘to encourage the early resolution of motor accident claims and the quick, cost effective and just resolution of disputes’. In the interpretation of a provision of the MAI Act or the Regulations, a construction that would promote the objects of the MAI Act or the provision is to be preferred to a construction that would not promote those objects (s 1.3(4)). In the exercise of a discretion conferred by a provision of the MAI Act or the Regulations, the person exercising the discretion must do so in the way that would best promote the objects of the MAI Act or of the provision concerned (s 1.3(5)).
The claimant’s entitlement to recover legal costs is governed by Part 8 of the MAI Act. That Part applies to and in respect of legal costs payable on a party and party basis, on a solicitor and client basis or on any other basis, unless the Part otherwise provides, see s 8.2.
Section 8.3 of the MAI Act provides that Regulations may make provision for the fixing of maximum costs recoverable by Australian legal practitioners. Sub-section 8.3 (4) provides the recovery of legal costs is not allowed unless payment is permitted by the Regulations or the Commission.
Sub-section 8.10 (1) provides that a claimant for statutory benefits is (subject to the section) entitled to recover from the insurer ‘reasonable and necessary’ costs incurred by the claimant in connection with the claim. This is qualified by sub-section 8.10 (3) which provides that the recovery of costs is allowed if payment is permitted by the Regulations or the Commission. Then sub-section 8.10 (4) provides that the Commission can permit payment of legal costs incurred by the claimant if satisfied that the claimant is under a legal disability or exceptional circumstances exist.
Clause 22 of the of the Regulation provides that the costs set out in Schedule 1 are the maximum costs for legal services provided by an Australian legal practitioner to a claimant.
In this case the claimant’s solicitor does not claim ‘reasonable and necessary’ costs or regulated legal costs. The claimant’s solicitor submits that, due to the denial of payment for the interpreter invoices and in light of the legal work undertaken, the Commission apply its powers under s 7.42 and s 8.10(4) to permit payment of legal costs other than as permitted by the Regulations as exceptional circumstances which exist in this case that justify payment of legal costs incurred by the claimant. In addition to a payment of legal costs under exceptional circumstances, the claimant’s solicitor seeks the Commission to also consider a s 6.21 costs penalty for an increase of 25% costs, or 3.5% per month on late invoices as indicated on the invoices, to be awarded to the interpreter for being imposed for the unreasonable denial of liability.
Determination of legal costs
In this matter the claimant seeks the payment of legal costs because of “exceptional circumstances” under s 8.10 of the MAI Act. He also seeks an award of legal costs under
s 7.42 of the MAI Act. He also seeks an award for a costs penalty under s 6.21 of the MAI Act.
Do exceptional circumstances exist?
In AAI Ltd t/a GIO v Moon [2020] NSWCC 714 (Moon) his Honour Wright J considered in some detail legal costs, the operation of s 8.10 and the meaning of “exceptional circumstances”.
Wright J stated at [103] that:
“… in summary, the legal costs that a claimant for statutory benefits is entitled to recover and be paid under s 8.10, are the ‘reasonable and necessary’ legal costs ‘incurred by the claimant’ in connection with the claim:
(1) where those legal costs do not exceed the relevant maximum legal costs fixed by the regulations made under s 8.10(2) and thus the payment of those legal costs is ‘permitted by the regulations’; and
(2) where those legal costs exceed the relevant maximum legal costs fixed by the regulations but the DRS:
(a) is satisfied that the claimant is under a legal disability or that exceptional circumstances exist; and
(b) has permitted the payment of those legal costs, in accordance with s 8.10(4).”
The Court held that sub-section 8.10(3) should be construed as conferring on the DRS (now Commission) a discretion to permit the recovery and payment of legal costs in excess of the maximum costs fixed by the Regulations, where the requirements of sub- section 8.10(4) are met. The Court referred to a category of cases considered exceptional, because they involve an unusual degree of factual or legal complexity or for some other reason, and this requires the incurring of more substantial legal costs by a claimant. These cases fall within sub-section 8.10(4). It would be consistent with the objects and other provisions of the MAI Act, including for example sub-section 7.46, and the express terms of sub-sections 8.10(3) and (4), to permit the amount of legal costs recoverable under sub-section 8.10 in such exceptional cases to exceed the maximum fixed by regulation, where that was reasonably required to prevent injustice, hardship or some other relevant adverse consequence.
The phrase ‘exceptional circumstances’ in sub- section 8.10 (4) (b) is not defined in the MAI Act. The existence of ‘exceptional circumstances’ was accepted by the parties in Moon’s case and was not in contention and not discussed at any detail in the judgment, (see [16]).
Some assistance for the meaning of the phrase ‘exceptional circumstances’ can be derived by reference to the principles discussed in San v Rumble (No. 2) [2007] NSWCA 259. That case examined the meaning of the phrase “exceptional case and for the avoidance of substantial injustice” as it appears in s 153 of the Motor Accidents Compensation Act 1999. Campbell JA reviewed numerous cases on the meaning of ‘exceptional circumstances’. His Honour referred to Ho v Professional Services Review CommitteeNo 295[2007] FCA 388 where Rares J (at [26]) said that exceptional circumstances "... can include a single exceptional matter, a combination of exceptional factors, or a combination of ordinary factors which, although individually of no particular significance, when taken together are seen as exceptional. .
Campbell JA then concluded his review of the cases and stated that at [67]:
“In deciding whether it is an ‘exceptional case’ within the meaning of section 153(1), the court needs to find that the circumstances of the instant case are unusual or out of the ordinary, whether that unusualness or being out of the ordinary arises from qualitative or quantitative factors. But, to adapt Kelly, the case need not be one that is unique, unprecedented, or very rare. The conclusion that the case is exceptional can arise in any of the ways identified by Rares J in Ho. Beyond that, it seems to me it is not possible to provide general guidance. …..it will be necessary to approach each application by careful consideration of the facts of the individual case.”
Determination
Applying the concepts and discussions above about the meaning of “exceptional circumstances”, I find that exceptional circumstances do not exist in this case.
The exceptional circumstances identified in this matter by the claimant’s solicitors are due to the denial of payment for the interpreter invoices in light of the legal work undertaken.
In this case there was little evidence of a high degree of preparation and presentation required in the dispute or and special skill by the solicitors given the complexity of the medical issues and materials or the volume of material. The solicitors were not required to undertake extra work because the matter had unusually complex legal or medical issues involved.
In Moon’s case, the Court referred to a category of cases considered exceptional, because they involved an unusual degree of factual or legal complexity or for some other reason which required the incurring of more substantial legal costs by a claimant. Moon’s case stated it would be consistent with the objects and other provisions of the MAI Act, including the express terms of sub-sections 8.10(3) and (4), to permit the amount of legal costs recoverable under sub-section 8.10 in such exceptional cases to exceed the maximum fixed by regulation where that was reasonably required to prevent injustice, hardship or some other relevant adverse consequence. None of the factors identified in Moon’s case can be said to exist in this present case.
I am not satisfied that the information submitted supports a finding of exceptional circumstances. Therefore, I find that legal costs are not recoverable for “exceptional circumstances”.
In this matter the claimant also seeks the payment of legal costs under s 7.42 of the MAI Act.
Sub-section 7.42 (1) of the MAI Act provides that a dispute may be referred at any time to the Commission by any party to the dispute for assessment under this Division. Dispute is defined under s 7.40 to mean a dispute between a claimant and an insurer about a miscellaneous claims assessment matter. The current matters in dispute are merit reviews accordingly, s 7.42 of the MAI Act cannot apply to these disputes to allow for the payment of legal costs.
Finally, the claimant’s solicitor seeks the Commission to also consider a s 6.21 costs penalty for an increase of 25% costs.
Section 6.21 provides in part that:
“6.21 Costs penalty for unreasonable denial of liability
(1) If an insurer denies liability (whether for part or all of a claim), the Commission may, in assessing costs on the claim, impose a costs penalty under this section if the Commission is of the opinion that there was no reasonable basis for the denial of liability.
(2) There is considered to be a reasonable basis for a denial of liability only if the denial was based on provable facts and a reasonably arguable view of the law.
(3) The costs penalty that may be imposed on an insurer under this section is a penalty of up to 25% (imposed by increasing the costs to be awarded against the insurer, or decreasing the costs to be awarded in favour of the insurer, by up to 25%).”In this case the claimant’s solicitor has not provided any detailed submissions, legal argument or evidence that would enable me to find that there was no reasonable basis for the denial of liability. Accordingly, I find that no costs penalty may be imposed on the insurer in this case under s 6.21.
CONCLUSION
In the circumstances of this case, the Commission does not have jurisdiction to review the disputes over the payment of interpreter invoices referred to in the claimant’s two applications for review (A10379297/21 and A10387487/21) dated 18 January and 9 February 2021.
In regard to both applications for review (A10379297/21 and A10387487/21) dated 18 January and 9 February 2021, 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.
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