Liu v QBE Insurance (Australia) Limited

[2024] NSWPIC 606

CERTIFICATE OF DETERMINATION OF MEMBER 

CITATION:

Liu v QBE Insurance (Australia) Limited [2024] NSWPIC 606

CLAIMANT:

Mengye Liu

INSURER:

QBE

MEMBER:

Jeremy Lum

DATE OF DECISION:

24 October 2024

CATCHWORDS:

MOTOR ACCIDENTS - Motor Accident Injuries Act 2017; non-regulated merit review matter; claimant’s exceptional legal costs assessed under section 8.10(4)(b); insurer’s legal representative permitted to recover reasonable legal costs under section 8.3(4).

DETERMINATIONS MADE:

CERTIFICATE

DETERMINATIONS MADE:

1. The insurer is to pay the claimant’s legal costs incurred in the merit review proceedings under s 8.10(4)(b) of the Motor Accident Injuries Act2017 in the sum of $2,192 inclusive of GST.

2. The insurer’s legal representative is permitted to recover its reasonable legal costs from the insurer under s 8.3(4) of the Motor Accident Injuries Act 2017.

STATEMENT OF REASONS

BACKGROUND

1. On 22 August 2024, Merit Reviewer Katherine Ruschen (the Merit Reviewer) issued a determination setting aside the insurer’s reviewable decision with respect to the calculation of the claimant’s pre-accident weekly earnings (PAWE). The Merit Reviewer determined that the claimant’s PAWE is $576.55.

2. An issue arose with respect to the parties’ legal costs as the calculation of PAWE, while itself being a merit review matter,[1] does not fall within a regulated merit review matter under Schedule 1, cl 1(2) of the Motor Accident Injuries Regulation 2017 (the 2017 Regulation).

   [1] Under Schedule 2 cl 1(a) of the MAI Act.

3. As a Merit Reviewer does not exercise Personal Injury Commission (Commission) power/s, it was the Merit Reviewer’s view that she could not permit payment of the parties’ legal practitioner’s legal costs.

4. Accordingly, the matter was referred to me to determine the outstanding issue of legal costs.

RELEVANT LEGISLATION

1. Section 8.3(4) of the Motor Accident Injuries Act 2017 (the MAI Act) provides:

   “An Australian legal practitioner is not entitled to be paid or recover legal costs for any legal services provided to a party to a claim for statutory benefits (whether the claimant or insurer) in connection with the claim unless payment of those legal costs is permitted by the regulations or the Commission.”

2. Section 8.10 (3) and (4) of the MAI Act relevantly provides:

   “(3)    A claimant for statutory benefits is only entitled to recover from the insurer against whom the claim is made reasonable and necessary legal costs incurred by the claimant if payment of those costs is permitted by the regulations or the Commission.

   (4)     The Commission can permit payment of legal costs incurred by a claimant but only if satisfied that –

   (a) …

   (b)     exceptional circumstances exist to justify payment of legal costs incurred by the claimant.”

PRELIMINARY CONFERENCE

1. I held a preliminary conference with the parties’ legal representatives on

   
   

   17 October 2024. Although the claimant requested a higher amount for its legal costs in written submissions, the claimant was happy to accept the amount of 16 monetary units under s 8.10(4)(b) of the MAI Act. I noted that this amount was in line with the maximum costs for legal services had this been a regulated merit review matter.

2. After a brief pause to seek instructions, the insurer did not oppose an award for the claimant for the specified amount.

3. The claimant’s solicitor did not oppose an order made under s 8.3(4) of the MAI Act for the insurer’s solicitor to recover legal costs from the insurer.

DETERMINATION

Claimant’s legal costs

1. As the proceedings before the Merit Reviewer is not a regulated merit review matter, the claimant would not be entitled to recover any legal costs under Schedule 1, Part 1 of the 2017 Regulation. The claimant relies on the Commission exercising its discretion under the costs provisions in s 8.10(3) and (4) of the MAI Act.

2. I note that the claimant was successful in increasing the PAWE amount from $326.15 to $576.55 in the proceedings before the Merit Reviewer.  I accept the claimant’s submission that legal work has been performed in obtaining instructions, review decisions, conducting investigations, researching and preparing for complex issues.

3. In the circumstances, I find exceptional circumstances exist and the claimant is recovered to recover its legal costs from the insurer under s 8.10(4)(b) of the MAI Act.

4. Schedule 3 of the 2017 Regulation provides that the current monetary unit is $124.53 exclusive of GST.  Accordingly, the claimant’s legal costs are assessed at $2,192 inclusive of GST.[2]

   [2] Rounded from $2,191.73 to the nearest dollar as per Schedule 3(3) of the 2017 Regulation.

Insurer’s legal costs

1. Having made an order in favour of the claimant under s 8.10(4) of the MAI Act, the appropriate order under s 8.3(4) of the MAI Act is to permit the insurer’s legal representative to recover its reasonable legal costs from the insurer.