Mason v State of New South Wales (NSW Police Force)

CERTIFICATE OF DETERMINATION OF MEMBER
Citation:	Mason v State of New South Wales (NSW Police Force) [2022] NSWPIC 716
APPLICANT:	Gregory John Mason
RESPONDENT:	State of New South Wales (NSW Police Force)
Principal Member:	Glenn Capel
DATE OF DECISION:	13 December 2022
CATCHWORDS:	WORKERS COMPENSATION - Applicant made claim for lump sum compensation for 20% whole person impairment (WPI) in respect of a psychological injury; respondent’s Independent Medical Examiner (IME) assessed 15% WPI; the respondent sought a further IME opinion from a psychiatrist who only reviewed some of the evidence and assessed 7% whole person impairment; a Medical Assessor assessed 5% WPI, so the applicant’s claim failed; the applicant’s solicitor sought an order for costs pursuant to clause 6 of Part 1 of Schedule 6 of the Workers Compensation Regulation 2016; opposed by the respondent; Kimber v NSW Police Force, Nahar v Arcadia Property Management Group Pty Ltd and Connor v Trustees of the Roman Catholic Church for the Archdiocese of Sydney discussed and applied; Held – respondent’s actions in not accepting liability when it had received a report that supported the applicant’s claim unacceptable; inconsistent with Model Litigant Policy; effectively invited the litigation and unnecessarily and unreasonably protracted the proceedings; respondent ordered to pay the applicant’s costs in the sum of $4,400.
determinations made:	1. The applicant’s application pursuant to s 350(3) of the Workplace Injury Management and Workers Compensation Act 1998 for reconsideration of the orders made in the Certificate of Determination dated 5 December 2022 is granted. 2. Order 3 in the Certificate of Determination dated 5 December 2022 is revoked. 3. The respondent is to pay the applicant’s costs in the sum of $4,400 in accordance with clause 6 of Part 1 of Schedule 6 of the Workers Compensation Regulation 2016.

STATEMENT OF REASONS

BACKGROUND

Gregory Mason (the applicant) is 54-years-old and was employed by the State of New South Wales (NSW Police Force) (the respondent) as a police officer. During the course of his employment, he sustained a psychological injury when exposed to a series of fatalities, suicides and other traumatic events. It appears that liability was accepted by Employers Mutual Ltd (the insurer) in respect of his injury.
On 9 August 2021, the applicant’s solicitor served a notice of claim on the insurer in respect of lump sum compensation, based on a report of Dr Takyar dated 23 July 2021. He assessed 20% whole person impairment.
On 20 December 2021, the insurer issued a notice pursuant to s 78 of the Workplace Injury Management and Workers Compensation Act 1998 disputing that the applicant was entitled to lump sum compensation on the grounds that his loss had not passed the threshold of 15% whole person impairment as required by s 65A(3) of the Workers Compensation Act 1987 (the 1987 Act). The insurer relied on a report of Dr Neale dated 15 December 2021. Dr Neale assessed 7% whole person impairment.
On 10 August 2022, the applicant filed an Application to Resolve a Dispute (the Application) in the Personal Injury Commission (the Commission) seeking lump sum compensation in respect 20% whole person impairment pursuant to s 66 of the 1987 Act and $45,000 for pain and suffering pursuant to s 67 of the 1987 Act due to a psychological injury sustained on 28 August 2010 (deemed).
The applicant’s claim was referred to a Medical Assessor (MA), Dr Clayton Smith, who provided a Medical Assessment Certificate on 31 October 2022. He assessed 5% whole person impairment.
On 5 December 2022, the Commission issued a Certificate of Determination (COD) as follows:
“The Commission determines:
1.      The applicant suffers 5% permanent impairment resulting from psychological injury deemed to have happened on 28 August 2010.
2.     The applicant has no entitlement to lump sum compensation resulting from
        psychological injury deemed to have happened on 28 August 2010.
3.     No order is made as to costs.
Brief statement of reasons
4. This Certificate of Determination is issued in accordance with the Medical Assessment Certificate issued under Part 7 of Chapter 7 of the Workplace Injury Management and Workers Compensation Act 1998.
5. The applicant did not reach the threshold for lump sum compensation, as required by section 65A(3) of the Workers Compensation Act 1987.”
On 5 December 2022, the applicant’s solicitor, Mr Jones, sent an email to the Commission, submitting that the applicant was entitled to an award of costs pursuant to cl 6 of Pt 1 of Sch 6 of the Workers Compensation Regulation 2016 (the 2016 Regulation), as the applicant had obtained a report in support of the claim establishing an entitlement to compensation pursuant to ss 66 and 67 of the 1987 Act.
On 5 December 2022, I directed that the respondent’s solicitor, Mr Marsh, file submissions dealing with cl 6 of Pt 1 of Sch 6 of the 2016 Regulation. Submissions were sent via email on
5 December 2022 and on 13 December 2022.
On 6 December 2022, the applicant was directed to file submissions in reply. These were sent to the Commission via email on 9 December 2022.

ISSUE FOR DETERMINATION

The parties agree that the following issues remain in dispute:
(a) whether the COD dated 5 December 2022 should be reconsidered – s 350(3) of the 1998 Act, and
(b) whether the respondent should be ordered to pay the applicant’s costs – cl 6 of Pt 1 of Sch 6 of the 2016 Regulation.

Documentary evidence

The following documents were in evidence before the Commission and taken into account in making this determination:
(a)    the Application with attached documents;
(b)    Reply with attached documents;
(c)    Medical Assessment Certificate dated 31 October 2022, and
(d)    COD dated 5 December 2022.

SUBMISSIONS

Applicant’s submissions

Mr Jones submits that the applicant should be entitled to an order for costs pursuant to cl 6 of Pt 1 of Sch 6 of the 2016 Regulation because he had obtained a report in support of the claim for lump sum compensation pursuant to ss 66 and 67 of the 1987 Act.
Mr Jones submits that the applicant has been unsuccessful in his claim due to the threshold that applies pursuant to s 65A(3) of the 1987 Act. In the absence of that restriction the applicant would have been entitled to lump sum compensation.
Mr Jones submits that for the applicant to be entitled to an award of costs in respect of the claim, he must establish an entitlement by demonstrating that there was some sort of misconduct, impropriety or lax conduct by the respondent in dealing with the claim.
Mr Jones submits that the applicant relied upon a report of Dr Takyar, who assessed 15% whole person impairment. The insurer qualified Dr George who assessed 15% whole person impairment in his report dated 18 November 2021.
Mr Jones submits that the insurer’s action in obtaining a report from Dr Neale was conduct that could be considered as improper conduct and not in accordance with Claims Guidelines. The conduct compelled the applicant to commence proceedings to determine the issue of the extent of his whole person impairment due to his injury.
Mr Jones submits that the insurer should have sought an opinion from Dr George so as to enable the worker to properly consider the employers response to his claim. He submits that the applicant should be entitled to an award of costs in accordance with cl 6 of Pt 1 of Sch 6.

Respondent’s submissions

Mr Marsh submits that the applicant’s claim was entirely unsuccessful and had not been resolved in his favour as defined in cl 1 and cl 2 of Pt 1 of Sch 6 of the 2016 Regulation. He submits that cl 5 of Pt 1 of Sch 6 confirms that costs specified in cl 4 are only recoverable on the resolution of the claim or the dispute.
Mr Marsh submits that cl 5 of Pt 1 of Sch 6 of the 2016 Regulation and the exception to the standard method of determining costs has no operation in circumstances where the claim for lump sum compensation has been wholly unsuccessful. He submits that the cl 6 of Pt 1 of Sch 6 is directed to ensuring an applicant recovers costs in accordance with cl 6(2) of Pt 1 of Sch 6 where an entitlement pursuant to s 66 of the 1987 Act is established, but the accompanying claim for compensation for pain and suffering pursuant to s 67 of the 1987 Act has failed, notwithstanding a claim had been made medical evidence supporting a degree of permanent impairment which satisfies the threshold for pain and suffering. There should not be a departure from the usual rule that a successful employer should be ordered to pay an unsuccessful worker’s costs, consistent with the reasoning in Kimber v NSW Police Force[1].
[1] [2017]NSWWCC 53 (Kimber).
Mr Marsh submits that the applicant made a claim for lump sum compensation relying upon a report from Dr Takyar dated 23 July 2021. He assessed 20% whole person impairment which included 5% whole person impairment for "adaptation" on the basis "there is no capacity for employment based upon Mr Mason's current psychiatric symptoms". He submits that this statement was clearly incorrect, given the applicant was working full-time, so his assessment was unsustainable.
Mr Marsh submits that the respondent arranged for the applicant to be re-examined by Dr George, who provided an assessment of 15% whole person impairment, which did not appear to accord with the evidence which was available. A supplementary was requested seeking clarification of his assessment. Dr George's assessment did not appear to accord with the evidence.
Mr Marsh submits that the respondent retained Dr Neale for an opinion to determine whether Dr George had made a correct assessment under the Psychiatric Impairment Rating Scale (PIRS). Dr Neale was of the opinion, that based on the evidence, the applicant had 7% whole person impairment.
Mr Marsh submits that the insurer determined the claim in a notice dated 20 December 2021, and it disclosed the reports from Dr George and Dr Neale. The reports were attached to the Reply to ensure full disclosure. The applicant did not seek a review of the insurer’s decision. His solicitor objected to the inclusion of reports from two Independent Medical Examiners (IMEs), and the reports of Dr George were withdrawn. The applicant did not object to Dr Neale’s report being put before the MA.
Mr Marsh submits that the respondent rejects the applicant’s assertion there was any misconduct, impropriety or lax conduct. He submits that it is extraordinary the applicant’s solicitor makes such a submission, given that the applicant relied upon a report of Dr Takyar who assessed class 5 for employability, in circumstances where the applicant was working full-time. Clearly that assessment was not maintainable. Further, when all of the evidence was viewed, Dr Neale’s assessment was far closer to the final outcome than either Dr Takyar and Dr George. All that the respondent did was try and properly verify the assessment of impairment.
Mr Marsh submits the applicant has been wholly unsuccessful in his claim and the appropriate order is that there be no orders as to costs.

Legislation

The 2016 Regulation

Clause 1 of Pt 1 of Sch 6 of the 2016 Regulation deals with the application and operation of the schedule. It provides:
“Part 1 Application and operation of Schedule
1     Introduction
(1)    This Schedule applies to—
(a)  workers compensation claims and disputes that are resolved before proceedings are commenced in the Commission (in certain circumstances), and
(b)  disputes that are resolved after proceedings have been commenced in the Commission.”
Clause 2 (2) of Pt 1 of Sch 6 of the 2016 Regulation provides a definition of the term “resolved” in respect of a worker’s claim as follows:
“(2)    Meaning of ‘resolved’”— claimant. For the purposes of this Schedule, a claim or dispute is resolved, in relation to a claimant, if—
(a)  the claim or dispute is wholly or partly resolved in the claimant’s favour, or
(b)  an application brought by an insurer in relation to the claim or dispute is successfully defended in whole or in part,
but does not include a matter discontinued, withdrawn, dismissed or struck out without any resolution referred to in paragraph (a) or (b) unless otherwise ordered or certified for the purposes of cost recovery by the Commission.”
Clause 3 of Pt 1 of Sch 6 of the 2016 Regulation deals with the application of the schedule. It provides:
“3      Overall application of Schedule
(1)    This Schedule is to be read and applied in its entirety, and accordingly this Schedule applies in relation to costs in accordance with—
(a)  the descriptions contained in Tables 1 to 4, and
(b)  the notes in Part 2, and
(c) Parts 1 and 3.
(2) This Schedule prescribes the maximum costs recoverable in respect of work carried out to achieve the resolution types described in Tables 2 and 3 for—
(a)  resolving claims and disputes before an application is accepted by the Commission for registration, or
(b)  resolving disputes after an application is accepted by the Commission for registration,”
Clauses 5 and 6 of Pt 1 of Sch 6 of the 2016 Regulation describe when costs are payable and contain special provisions where the dispute concerns permanent impairment and pain and suffering. They provide:
“5   When Table 1 costs recoverable
Costs specified in clause 4 of this Part are recoverable only on resolution of the claim or dispute concerned.
6   Special provisions for Table 1 costs—dispute about permanent impairment and pain and suffering
(1) An exception to the standard method of determining the appropriate Table 1 costs for a claimant and an insurer based upon the meaning of “resolved” under clause 2 of this Part and the types of resolutions set out in Table 2 applies, where—
(a)  a claimant has made an application to the Commission to resolve a dispute about permanent impairment and pain and suffering pursuant to sections 66 and 67 of the 1987 Act, and
(b)  the section 67 claim has been substantiated by—
(i)  a report, from a medical specialist with qualifications and training relevant to the body system being assessed who has been trained in the NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, to the effect that the claimant has sustained 10% or more whole person impairment where—
(A)  the injury was sustained on or after 1 January 2002, and
(B)  that report has been served on the insurer, or
(ii)  a medical report to the effect that the claimant has sustained a loss or losses of 10% or more of the maximum amount referred to in section 66(1) of the 1987 Act where—
(A)  the injury was sustained before 1 January 2002, and
(B)  that report has been served on the insurer, and
(c)  the medical assessment certificate issued by a medical assessor or Appeal Panel is to the effect that the degree of whole person impairment of the claimant is below 10% or the loss or losses are not 10% or more of the maximum amount referred to in section 66(1) of the 1987 Act….”

REASONS

Section 350(3) of the 1998 Act provides that “the Commission may reconsider any matter that has been dealt with by the Commission and rescind, alter or amend any decision previously made or given by the Commission”. The COD issued by me on 5 December 2022 is one such matter.
The general principle in the Commission prior to the 2012 amendments was that costs follow the event[2]. The power of the Commission to make cost orders was removed by the 2012 amendments, except in the case of exempt workers, such as the applicant.
[2] Nahar v Arcadia Property Management Group Pty Ltd [2005] NSWWCC 76 (Nahar).
Mr Jones submits that the applicant is entitled to costs in accordance with cl 6 of Pt 1 of Sch 6 of the 2016 Regulation because he had obtained a report in support of the claim for lump sum compensation pursuant to ss 66 and 67 of the 1987 Act. Further, the insurer’s action in relying on a report from Dr Neale amounted to misconduct, impropriety or lax conduct.
Mr Marsh submits that the applicant’s claim was entirely unsuccessful and had not been “resolved” in his favour as defined in cl 1 and cl 2 of Pt 1 of Sch 6 of the 2016 Regulation, and cl 5 of Pt 1 of Sch 6 confirms that costs specified in cl 4 are only recoverable when the claim or dispute is “resolved. He submits that cl 6 of Pt 1 of Sch 6 is directed to ensuring an applicant recovers costs in accordance with cl 6(2) of Pt 1 of Sch 6 when he or she has an entitlement for lump sum compensation pursuant to s 66 of the 1987 Act. He submits that his is consistent with Kimber.
The facts in Kimber are remarkably similar to the present matter. Ms Kimber issued proceedings for lump sum compensation and was assessed by an Approved Medical Assessor in August 2015 as having 8% whole person impairment in respect of a psychological injury sustained on 1 March 2013. The assessment was confirmed on appeal in January 2016. The COD that was issued on 18 February 2016 confirmed that there was no entitlement to lump sum compensation and there was no order as to costs.
The applicant’s solicitor sought a costs order against the respondent on 26 August 2016. The matter was referred to Arbitrator Moore, who issued a COD on 9 March 2017. She confirmed the order as to cots in the COD dated 18 February 2016.
Arbitrator Moore summarised the submissions and the relevant provisions in the 2016 Regulation. In respect of cl 6 of Pt 1 of Sch 6 of the 2016 Regulation, the Arbitrator stated:
“Turning now to Clause 6 of Schedule 6. It provides an ‘exception’ to the standard method of determining the appropriate costs for a claimant based upon the meaning of ‘resolved’ under clause 2 of Schedule 6.
The Clause it seems to me has a specific purpose, otherwise there would be no need for it since a claimant would be entitled to the ‘standard method’ of assessing costs based upon the resolution of the claim. In other words, if the claimant had been successful, she would be entitled to the appropriate costs payable on successful resolution of her claim.
I agree with the respondent’s submissions that the ‘specific purpose’ to which I’ve referred is to make provision for costs where an entitlement pursuant to s 66 is established though the accompanying claim for additional compensation pursuant to s 67 has failed because the degree of whole person impairment is below 10 per cent, notwithstanding that the claim was made with appropriate medical evidence supporting a level of permanent impairment sufficient to satisfy the s 67 threshold.
In addition, it also seems to me that the reference to the degree of whole person impairment being below the 10 per cent threshold relates to injuries sustained before 1 January 2002 (Clause 6 (1) (b) (ii) (c).”[3]
[3] Kimber, [22]-[25].
The Arbitrator continued:
“Schedule 6, Clauses 3 and 5 should also be borne in mind, namely that ‘3.This Schedule is to be read and applied in its entirety, and accordingly this Schedule applies in relation to costs in accordance with (a) the descriptions contained in Tables 1 to 4, and (b) the notes in Part 2, and (c) Parts 1 and 3 and 5. Costs specified in clause 4 of this Part are recoverable only on resolution of the claim or dispute concerned.
The applicant has been wholly unsuccessful in her claim. It has not been ‘resolved’ in her favour.”[4]
[4] Kimber, [27]-[28].
I concur with the Arbitrator’s reasoning. In the present matter, the applicant failed in his claim. It was not “wholly or partly resolved” in his favour as defined in cl 2(2) of Pt 1 of Sch 6 of the 2016 Regulation. Schedule 6 must be read and applied in its entirety. The respondent should not be liable for the costs of an applicant when he failed in his claim, because costs should follow the event according to Nahar. Therefore, I need to consider if there was any misconduct, impropriety or lax conduct by the insurer.

In Connor v Trustees of the Roman Catholic Church for the Archdiocese of Sydney)[5], Acting Deputy President Roche (as he then was) found that the Arbitrator had been in error in ordering that the employer pay the unsuccessful worker’s costs in the proceedings. He stated:
[5] [2006] NSWWCCPD 124 (Connor).
“A successful party should only be ordered to pay the costs of the unsuccessful party in exceptional circumstances. That has occurred in situations where the behaviour of the successful party involved some misconduct (Donald Campbell & Co Ltd v Pollack [1927] AC 732) or some impropriety (Trenerry v Trenerry [1962] 2 NSWLR 221.
In the present case the issue was not about a discretion to refuse costs to the successful party (the successful employer does not seek a costs order in its favour), but whether the successful party should be ordered to pay the costs of the unsuccessful party. On that issue the decision of McHugh J in Oshlack v Richmond River Council [1998] HCA 11; (1998) 193 CLR 72 at 97-98 is most instructive:
‘The traditional exceptions to the usual order as to costs focus on the conduct of the successful party which disentitles it to the beneficial exercise of the discretion. In Anglo-Cyprian Trade Agencies Ltd. v. Paphos Wine Industries Ltd, Devlin J formulated the relevant principle as follows:
“No doubt, the ordinary rule is that, where a plaintiff has been successful, he ought not be deprived of his costs, or, at any rate, made to pay the costs of the other side, unless he has been guilty of some sort of misconduct.’
‘Misconduct’ in this context means misconduct relating to the litigation, or the circumstances leading up to the litigation. Thus, the court may properly depart from the usual order as to costs when the successful party by its lax conduct effectively invites the litigation; unnecessarily protracts the proceedings; succeeds on a point not argued before a lower court; prosecutes the matter solely for the purpose of increasing the costs recoverable; or obtains relief which the unsuccessful party had already offered in settlement of the dispute.”(emphasis added).
Applying the above authority a successful employer should not be ordered to pay the costs of an unsuccessful worker unless the employer has:
(a) been guilty of some sort of misconduct;
(b) by its lax conduct, effectively invited the litigation; or
(c) unnecessarily or unreasonably protracted the proceedings.”[6]
[6] Connor, [77]-[79].
Therefore, the question to consider is whether the insurer’s action in relying on a report from another IME, Dr Neale, after obtaining three reports from Dr George that supported the applicant’s claim, amounted to misconduct, impropriety, lax conduct that effectively invited the litigation or unnecessarily or unreasonably protracted the proceedings.
It is true that the insurer had already qualified Dr George in 2011. The respondent’s solicitor qualified Dr George, and in his report dated 18 November 2021, Dr George indicated that the applicant had 15% whole person impairment. He was asked to clarify his assessment by Mr Marsh, and the doctor confirmed his opinion.
The respondent’s solicitor then qualified Dr Neale, who reviewed the documents and did not examine the applicant. She assessed 7% whole person impairment.
Mr Marsh rejects the suggestion that the respondent’s actions amounted to misconduct, impropriety or lax conduct. He submits that the assessments provided by Drs Takyar and George for adaption/employability were incorrect, having regard to the available evidence that the applicant was working full-time. In my view, such a submission is misconceived.
The applicant provided a statement and the histories recorded by these two doctors were consistent with applicant’s evidence. Whilst he was working full-time, he avoided stressful activities and at times took blocks of time off work. Both the IMEs are SIRA approved assessors of permanent impairment, so they would have assessed the applicant’s impairment in accordance with their training, skills and experience.
It is apparent that they did not feel that the applicant was able to work at full capacity (Dr George) or at all (Dr Takyar), so the suggestion by Mr Marsh, who is not an approved assessor, that their assessments “did not appear to accord with the evidence” and were unsustainable, lacks merit. Both doctors’ views were similar and, in my view, consistent with the evidence.
It is true that the applicant did not seek a review or object to the report of Dr Neale being submitted to the MA. Further, all of the respondent’s reports were disclosed and were included in the evidence filed in the Commission.
According to Mr Marsh, Dr Neale was qualified for an opinion regarding the evidence. Presumably an examination was not arranged with Dr Neale because of the restrictions imposed by regulation 44 of the 2016 Regulation and because an adverse report would have had to have been disclosed.
One would have to question the probative value of Dr Neale’s opinion in the absence of an examination. She was not able to ask the applicant questions and her report centred on a review of the PIRS categories. She mentioned medical certificates but did not engage with any of the other medical evidence and did not have copies of the applicant’s recent statements.
Dr Neale disagreed with the PIRS categories for self-care and hygiene, and social functioning, commenting that it was “more in keeping with…” without elaborating any further. The fact that her assessment was closer to that of the MA is of little consequence, because a MA is obliged to examine and assess the worker at the time of the examination, in this case, in October 2022, some time after the applicant was examined by the IMEs.
Mr Marsh submits that the respondent rejects the applicant’s assertion there was any misconduct, impropriety or lax conduct. He submits that it was extraordinary that the applicant’s solicitor made such a submission, given that the applicant relied upon a report of Dr Takyar, whose assessments were not maintainable.
The facts give rise to a number of concerns regarding the actions of the insurer.
The respondent already had three reports from Dr George, who largely agreed with the assessments of Dr Takyar. Proceedings should not have been filed as the insurer should have accepted liability and offered the applicant compensation in respect of 15% whole person impairment in accordance with the assessment of Dr George.
The respondent’s solicitor qualified Dr Neale despite having three reports from Dr George. The report was included in the evidence filed in the Commission, contrary to regulation 44 of Pt 9 of the 2016 Regulation, but these reports were withdrawn after the applicant’s solicitor objected. In the absence of an objection, the reports of Dr George would have been viewed by the MA, and they might have been persuasive, particularly given that Dr George had examined the applicant, unlike Dr Neale. Notwithstanding this, the MA was aware of the assessment provided by Dr George as he commented on the dispute notice that was in evidence that made mention of Dr George’s assessment.
It is unfortunate that the matter proceeded directly to an examination by a MA, as a Member would have identified that Dr George largely agreed with Dr Takyar, would have questioned the weight that could be given to Dr Neale’s review report in the absence of an examination, and would have been able to determine the claim without the need for the applicant to be assessed by a MA. This has been an unfortunate outcome for the applicant, since the MA agreed with only two of the PIRS categories as assessed by Dr Takyar, and four as assessed by Dr Neale.
As the insurer represents the State of New South Wales, the Model Litigant Policy applies to it. Clause 3.2 provides:
“The obligation requires that the State and its agencies, act honestly and fairly in handling claims and litigation by:
a)dealing with claims promptly and not causing unnecessary delay in the handling of claims and litigation;
b)paying legitimate claims without litigation, including making partial settlements of claims or interim payments, where it is clear that liability is at least as much as the amount to be paid;
c)acting consistently in the handling of claims and litigation;
d)endeavouring to avoid litigation, wherever possible. In particular regard should be had to the NSW Civil Procedure Act 2005 which provides that the overriding purpose of the Act is to facilitate the just, quick and cheap resolution of the real issues in civil proceedings;
e)where it is not possible to avoid litigation, keeping the costs of litigation to a minimum, including by:
I.not requiring the other party to prove a matter which the State or an agency knows to be true; and
II.not contesting liability if the State or an agency knows that the dispute is really about quantum…”
In my view, the insurer’s conduct in failing to accept liability upon receipt of Dr George’s reports and avoid litigation consistent with the Model Litigant Policy, was unacceptable. One would also have to query the actions in qualifying Dr Neale. Despite my concerns, I am not satisfied that these actions amount to misconduct.
In the circumstances, I consider that the applicant should be entitled to the costs of these proceedings because of the questionable conduct of the insurer which effectively invited the litigation, and unnecessarily and unreasonably protracted the proceedings, consistent with the principles discussed in Connor.

ORDERS

The applicant’s application pursuant to s 350(3) of the 1998 Act for reconsideration of the orders made in the COD dated 5 December 2022 is granted.
Order 3 in the COD dated 5 December 2022 is revoked.
The respondent is to pay the applicant’s costs in the sum of $4,400 in accordance with cl 6 of Pt 1 of Sch 6 of the 2016 Regulation.

[2022] NSWPIC 716

13 December 2022