Nominal Defendant v Adilzada

[2016] NSWCA 266

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation:	Nominal Defendant v Adilzada [2016] NSWCA 266
Hearing dates:	25 August 2016
Decision date:	22 September 2016
Before:	McColl JA at [1]; Meagher JA at [2]; Gleeson JA at [41]
Decision:	1. The parties to lodge written submissions (not to exceed three pages) with Meagher JA’s Associate, the applicant within seven days of the date of this direction, and the respondent within seven days thereafter, those submissions to address the question in [37] and the costs order proposed in [38]. The Court will then determine on the papers the final orders to be made.
Catchwords:	TORTS – negligence – Motor Accidents Compensation Act 1999 (NSW) – where respondent driver injured in motor vehicle accident, sustaining serious brain injury – where proceedings against Nominal Defendant claiming damages, including for economic loss for treatment and care services – where respondent entitled, if eligible, to participate in Lifetime Care and Support Scheme – whether Nominal Defendant may request respondent under s 86 of the Motor Accidents Compensation Act 1999 (NSW) to undergo medical examination for purpose of determining eligibility to participate in Lifetime Care and Support Scheme
Legislation Cited:	District Court Act 1973 (NSW), s 127(2)(a) Motor Accidents Compensation Act 1999 (NSW), ss 3, 5, 6, 43A, 78, 80, 85, 86, 107, 130A, 141A Motor Accidents and Lifetime Care and Support Schemes Legislation Amendment Act 2012 (NSW) Motor Accidents (Lifetime Care and Support) Act 2006 (NSW), ss 3, 5, 5A, 6, 7, 8, 9, 10, 11A, 11B, 11C, 48, 49, 54, 58 Uniform Civil Procedure Rules 2005 (NSW), r 23.4 Workplace Injury Management and Workers Compensation Act 1998 (NSW), s 119
Cases Cited:	Coco v The Queen (1974) 179 CLR 427 Daly v Thiering (2013) 249 CLR 381; [2013] HCA 45 Fernando v Commissioner of Police (1995) 36 NSWLR 567 Kurnell Passenger & Transport Service Pty Ltd v Randwick City Council (2009) 230 FLR 336; [2009] NSWCA 59 Insurance Australian Limited t/a NRMA Insurance v Milton [2016] NSWCA 156 Padfield v Minister of Agriculture, Fisheries and Food [1968] AC 997 Project Blue Sky v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28 The Queen v Toohey; Ex parte Northern Land Council (1981) 151 CLR 170 Thiering v Daly (2011) 83 NSWLR 498; [2011] NSWSC 1345
Category:	Principal judgment
Parties:	Nominal Defendant (Applicant) Said Mojahid Adilzada (Respondent)
Representation:	Counsel: KP Rewell SC (Applicant) DR Campbell SC with JJ Ryan (Respondent)   Solicitors: Curwoods Lawyers (Applicant) Premier Compensation Lawyers (Respondent)
File Number(s):	2016/107912
Publication restriction:	Nil
Decision under appeal	Court or tribunal: District Court of New South Wales Jurisdiction: Civil Date of Decision: 15 March 2016 Before: Elkaim DCJ File Number(s): 2011/238752

HEADNOTE

[This headnote should not be read as part of the judgement]

On 18 October 2007, the respondent driver was injured in a motor accident, sustaining a serious brain injury. He commenced proceedings in the District Court against the Nominal Defendant for damages relating to those injuries, including for economic loss for treatment and care services.

The respondent was entitled, if eligible, to become a participant in the Lifetime Care and Support Scheme (Motor Accidents (Lifetime Care and Support) Act 2006 (NSW) (LCS Act). Pursuant to s 130A of the Motor Accident Compensation Act 1999 (NSW) (MAC Act), participation in the Scheme would affect his entitlement to recover damages for economic loss for treatment and care services. An application to become a participant can be made by the injured person, or by a third party insurer of a claim and, in the case of brain injury, has to be accompanied by a Functional Independence Measure (FIM) assessment.

The Nominal Defendant requested that the respondent undertake a FIM assessment to determine his eligibility for the Scheme. The respondent did not do so. The Nominal defendant filed a Notice of Motion for a determination of whether such a request was within, and engaged the application of, s 86 of the MAC Act.

The primary judge found that s 86(1) had no application to the LCS Act. Accordingly he answered the question raised by the Nominal Defendant in the negative.

As the decision was interlocutory, and addressing separate questions formulated by the parties, the applicant required leave to appeal. The Court granted leave to appeal because the question raised is of general application and importance.

The issue in the proposed appeal was:

Whether on proper construction of s 86 of the MAC, the purposes for which the insurer may make a request that a claimant undergo a medical examination include to assess that person’s eligibility for lifetime participation in the Lifetime Care and Support Scheme.

The Court held (per Meagher JA, McColl and Gleeson JJA agreeing), granting leave to appeal and allowing the appeal:

The insurer or a person against whom a motor accident claim is made may under s 86(1) of the Motor Accidents Compensation Act 1999 (NSW) request the claimant to undergo a medical examination or assessment for the purpose of determining that person’s eligibility for participation in the Lifetime Care and Support Scheme. If the claimant fails without reasonable excuse to comply with such a request court proceedings cannot be commenced or continued in respect of the claim where the failure continues: [36].

Daly v Thiering (2013) 249 CLR 381; [2013] HCA 45 considered

Judgment

1. McCOLL JA: I agree with Meagher JA’s reasons and the orders his Honour proposes.

2. MEAGHER JA: The applicant Nominal Defendant seeks to appeal from orders determining two separate questions arising in proceedings brought by the respondent in relation to injuries, including a serious brain injury, he sustained in a motor accident on 18 October 2007: Said Mojahid Adilzada v The Nominal Defendant (District Court (NSW), Elkaim SC DCJ, 15 March 2016, unrep). The applicant requires leave to appeal because the orders answering those questions were interlocutory: District Court Act 1973 (NSW), s 127(2)(a).

3. The first of those questions concerns the construction and application of s 86 of the Motor Accidents Compensation Act 1999 (NSW) (MAC Act), which relevantly provides:

86   Medical and other examination of claimant

(1)   A claimant must comply with any request by the person against whom the claim is made or the person’s insurer:

(a)   to undergo a medical examination by one or more medical practitioners nominated by that person or insurer, or

(b)   to undergo a rehabilitation assessment, an assessment to determine functional and vocational capacity or an assessment to determine attendant care needs, by an assessor nominated by that person or insurer, or

(c)   to undergo an assessment in accordance with Motor Accidents Medical Guidelines,

not being, in any such case, an examination or assessment that is unreasonable, unnecessarily repetitious or dangerous.

(2)   Any such examination or assessment is at the cost of the person who requests it. The claimant may decline to undergo the examination or assessment unless that person pays the claimant a reasonable sum to meet the reasonable and necessary costs and expenses incurred by the claimant in connection with the examination or assessment.

(3)   A claimant must comply with any request by a medical assessor or the Authority to undergo a medical examination or an assessment by the medical assessor for the purposes of a medical assessment under Part 3.4.

(4)   If the claimant fails without reasonable excuse to comply with such a request:

(a)   the claim cannot be referred to the Authority for assessment under Part 4.4 and any such assessment cannot be continued while the failure continues, and

(b)   court proceedings cannot be commenced or continued in respect of the claim while the failure continues.

…

4. The question of construction is whether the purposes for which the insurer may make a request that the claimant undergo a medical examination include to assess that person’s eligibility for lifetime participation in the Lifetime Care and Support Scheme (Scheme) introduced by the Motor Accidents (Lifetime Care and Support) Act 2006 (NSW) (LCS Act).

Relevant provisions of the Motor Accidents legislation

5. In July 2011 the respondent commenced proceedings in the District Court against the Nominal Defendant for damages. That claim included damages for economic loss for attendant care services provided or to be provided to the respondent over his lifetime.

6. Because the motor accident occurred after 1 October 2007, the respondent was entitled, if eligible, to be accepted as a participant in the Scheme. The amendments to that Act made by the Motor Accidents and Lifetime Care and Support Schemes Legislation Amendment Act 2012 (NSW) do not apply to his claim because it was made before the introduction of the Bill for that Act into Parliament. Those amendments omitted ss 6 and 10 of the LCS Act as originally enacted, inserted ss 5A, 11A, 11B, 11C and made minor amendments to ss 48, 49 and 54. They also amended s 43A of the MAC Act (as then current), omitted s 130A and replaced it with s 141A. The consequence is that the respondent’s claim remains subject to s 130A.

7. Whether an injured person is a participant in the Scheme affects their entitlement to recover damages for treatment and care needs. As defined in the LCS Act (as originally enacted), those needs include medical treatment, rehabilitation, attendant care services, domestic assistance and education and vocational training (s 6(2)). Attendant care services are services “that aim to provide assistance to people with everyday tasks, and includes (for example) personal assistance, nursing, home maintenance and domestic services” (s 3(1)). Section 130A of the MAC Act (the construction and application of which was considered in Daly v Thiering (2013) 249 CLR 381; [2013] HCA 45) provides that no damages may be awarded to a participant in the Scheme for economic loss for treatment and care needs provided for by that participation and a person who has been awarded damages pursuant to a final judgment in respect of those needs is not eligible to be a participant of the Scheme (LCS Act, s 7(3)).

8. A person who has made a motor accident claim is eligible for participation if the person’s injury satisfies criteria specified in the Lifetime Care and Support Guidelines (Guidelines) issued by the Lifetime Care and Support Authority of New South Wales (Authority) under s 58. (The version of those Guidelines to which reference is made in these reasons is the version stated as applying to applications for participation received on or after 25 May 2012). If the Authority is satisfied that a person is eligible, and that application for their participation has been duly made, it must accept the person as an interim or lifetime participant, the former being participation for a period of two years (ss 9(2), (5)).

9. The application for a person to become a participant may be made by the injured person or by the “insurer of a claim” made by the person. That insurer is the “insurer for the purposes of Chapter 4 (Motor accident claims) of the Motor Accidents Compensation Act 1999 in relation to the claim” (s 3(1)). The making of an application by the insurer does not require the consent of the injured person (ss 8(1), (2)). In addition the State Insurance Regulatory Authority (SIRA) may direct the insurer to make such an application and the insurer must comply with that direction (s 8(3)).

10. Thus, as was noted by the Court (Crennan, Kiefel, Bell, Gageler and Keane JJ) in Daly v Thiering at [4], it is “open to the CTP insurer of a claim to override a choice by an insured person not to become a participant in the Scheme”, and at [45] that the “legislative package consisting of the LCS Act and s 130A of the MAC Act” confers a “choice” on the insurer that an eligible person become a participant in the Scheme. See also Insurance Australia Limited t/a NRMA Insurance v Milton [2016] NSWCA 156 at [3] (Basten JA, Leeming and Simpson JJA agreeing) where it was observed that if an application for participation has been duly made, an eligible person “cannot opt out of the scheme”.

11. In relation to a brain injury the Guidelines require a certificate from a medical specialist attesting that they have examined the injured person and sighted a Functional Independence Measure (FIM) assessment in which, due to the brain injury, that person has achieved a score of five or less on any of the items on the FIM. The Guidelines also provide that an application for lifetime participation, when made after the expiration of the two year period of interim participation, must be accompanied by a FIM assessment completed within two months of the date of the application (s 9(6) and Guidelines, Pt 1 Cll 2.2, 7).

The respondent’s participation in the Scheme

12. In January 2013 the respondent was accepted as an interim participant in the Scheme, following an application made by the Nominal Defendant under s 8(1). That application, made in December 2012, was accompanied by an FIM assessment undertaken by Professor Cameron, a rehabilitation physician. During the following two years the respondent did not accept treatment and care offered to him by the Authority. On 12 January 2015 the Authority advised the respondent that his two year period of interim participation had expired; and on 14 January 2015 the applicant’s solicitor inquired of the respondent’s solicitors as to his availability to undergo another FIM assessment. By a further email of 14 February 2015 the applicant’s solicitor advised that he was instructed to arrange for Professor Cameron to re-examine the respondent and asked whether the respondent would travel to Sydney to undergo that examination. There was no response to that request.

The applicant’s notice of motion

13. On 9 April 2015, the applicant filed a notice of motion seeking an order pursuant to Uniform Civil Procedure Rules 2005 (UCPR), r 23.4 that the respondent submit to a medical examination by Professor Cameron for assessment of his eligibility as a lifetime participant in the Scheme. In the alternative, orders were sought that the respondent comply with the applicant’s request under s 86(1) that he attend a medical examination, and that the proceedings be stayed until the respondent complied with that request. The applicant no longer relies on UCPR r 23.4 as providing a basis for requiring the respondent to undergo a medical examination.

14. That motion was listed for hearing on 21 July 2015. On that occasion consent orders were made which provided for the respondent to be examined by Professor Cameron. A disagreement subsequently emerged as to the purpose of that examination. When it became apparent that Professor Cameron had undertaken a second FIM assessment, and that the applicant proposed to rely on it to support an application for the respondent’s lifetime participation, the proceedings were relisted before the primary judge.

15. After a short hearing in October 2015 his Honour set aside the consent orders, so as to revive the motion of 9 April. In the course of that hearing counsel for the Nominal Defendant described the “central” issue between the parties as being: (tcpt 22/10/15, p 2)

… whether s 86 of the Motor Accidents Compensation Act, which entitles an insurer to request a medical examination on the part of the applicant and which obliges the claimant under penalty to comply with that request, may be used for the purpose of an assessment for eligibility for participation in the Lifetime Care and Support Scheme.

16. The parties subsequently agreed that the notice of motion raised three questions that should be determined. Unfortunately as formulated those questions did not in terms address the “central” issue earlier identified. The second and third of the questions were:

2. In circumstances where a claim has been exempted from assessment, and proceedings for the recovery of damages are pending before a Court can, as a consequence of s.86 of the Motor Accidents Compensation Act 1999 (NSW), the insurer of the Defendant in those proceedings by means of a court order made in those proceedings compel the Plaintiff to attend upon and be assessed by a doctor of its choosing for the purpose of the insurer:

(a)   bringing an application for the Plaintiffs acceptance into the Lifetime Care and Support Scheme (LTCS);

(b)   bringing an application for the Plaintiffs re-entry, following his earlier exclusion, into the LTCS: or

(c)   providing to the LTCS a medical certificate and FIM score sheet in support of any applications by it to LTCS?

3.   Whether, in the events (that) have happened, the insurer can in support of any application in relation to the Plaintiff by it to LTCS rely upon:

(a)   any LTCS medical certificate of Professor Cameron generated following his examination of the Plaintiff on 28 August 2015;

(b)   any LTCS FIM score sheet completed by Professor Cameron following upon his examination of the Plaintiff on 28 August 2015; or

(c)   any report of Professor Cameron that relates to his examination of the Plaintiff on 28 August 2015.

17. His Honour answered paras (a), (b) and (c) of question 2 in the negative. It followed, and the parties agreed, that paras (a), (b) and (c) of question 3 also should be answered in the negative. The Nominal Defendant seeks leave to appeal from the orders answering each of those questions.

Leave to appeal

18. The second question is not confined to the “central” issue described above and also inquires whether s 86 confers power on a court to compel a claimant to undertake a medical examination or assessment in circumstances where they have failed to comply with a request that they do so. The primary judge did not consider this question of power, noting that as between the parties there was no dispute “that a court can order a claimant to meet the obligations stated in Section 86”: [20]. In my view that consensus as between the parties does not reflect the proper construction of s 86 as to the conferral of such a power.

19. Section 86 does not in terms confer power on a court to order that any request to undergo a medical examination or assessment be complied with. Nor would the conferral of that power be implied unless it was clearly necessary to do so, because of the basic rights which its exercise would override: Coco v The Queen (1974) 179 CLR 427; Fernando v Commissioner of Police (1995) 36 NSWLR 567. Subsection 4(b) provides a sufficient sanction in the event that a claimant fails without reasonable cause to comply with a request under subs (1). That sanction is that court proceedings cannot be commenced, or if commenced, cannot be continued, whilst the failure to comply with that request continues.

20. Notwithstanding this difficulty in the formulation of question 2, the underlying issue raised by the question is of general importance and at the heart of the dispute between the parties. The respondent’s present position is that he does not want to become a participant in the Scheme and will not attend any medical examination which is directed to securing that outcome. For that reason, the Nominal Defendant should have leave to appeal from the order determining question 2, for the purpose of arguing that the answer to the question should be qualified to make clear that a request may be made under s 86(1) for the purpose of an assessment of the claimant’s eligibility for participation in the Scheme.

21. The respondent contends that leave should not be granted in relation to question 3. That question addresses whether, even if s 86 can be used to compel the respondent to undergo a medical examination, the applicant should be permitted to rely on the further FIM assessment of Professor Cameron.

22. The primary judge described the earlier “misunderstanding” between the parties which resulted in the obtaining of the second FIM assessment:

[15]   The plaintiff says that the consent orders made on 21 July 2015 did not contemplate the use of Professor Cameron's report for an application to be accepted into the LCS scheme. The orders, says the plaintiff, were restricted to the plaintiff’s damages proceedings in the District Court. Specifically, according to the plaintiff, he had not consented to attending and undergoing an FIM assessment to determine his eligibility for the LCS scheme.

[16]   The defendant's understanding of the orders was that the appointments, in particular that with Professor Cameron, could include the conducting of an FIM assessment to see if the plaintiff would qualify for the LCS scheme. Consistent with that understanding, when the defendant's solicitor wrote to Professor Cameron the letter stated "The purpose of the re-examination is to determine the Plaintiff's eligibility for lifetime participation in the Lifetime Care and Support Scheme”.

23. It is submitted on behalf of the respondent that had it been appreciated that the further medical examination was to be used for the purpose of determining his eligibility for participation in the Scheme, arrangements would have been made that he be accompanied to the examination, either by his treating physician or some other person who was independent of his father and tutor. In the face of that submission, accepting that there was a misunderstanding at the time the consent order was made, the applicant indicated that it would not press for an affirmative answer to question 3 in the event that it is successful in relation to question 2. In these circumstances, it is not necessary to consider question 3 and leave to appeal from the order answering that question should be refused.

Discussion

24. Like s 119 of the Workplace Injury Management and Workers Compensation Act 1998 (NSW), s 86(1) imposes an obligation on a claimant to undergo a medical examination. In doing so it confers a power in the insurer (and the person against whom the claim is made) to engage that obligation. See Kurnell Passenger & Transport Service Pty Ltd v Randwick City Council (2009) 230 FLR 336; [2009] NSWCA 59 at [3] (Giles JA); [9] (McColl JA); [81], [116] (Basten JA).

25. There is no difficulty in identifying what may be the subject of a request made under s 86(1). It is that the claimant undergo an examination or assessment of the kind described in paras (a), (b) or (c) which is not “unreasonable, unnecessarily repetitious or dangerous”. The circumstances in which such a request may be made are constrained by the purpose or purposes for which the power to make the request may be exercised. Those purposes describe the ambit or scope of the power and in accordance with established principle, must be “inferred from the construction of the Act read as a whole”: per Gibbs CJ in The Queen v Toohey; Ex parte Northern Land Council (1981) 151 CLR 170 at 186 (citing Lord Reid in Padfield v Minister of Agriculture, Fisheries and Food [1968] AC 997 at 1033).

26. The primary object of that task of construction was described by the plurality (McHugh, Gummow, Kirby and Hayne JJ) in Project Blue Sky v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28 at [69] as follows:

The primary object of statutory construction is to construe the relevant provision so that it is consistent with the language and purpose of all the provisions of the statute. The meaning of the provision must be determined "by reference to the language of the instrument viewed as a whole". In Commissioner for Railways (NSW) v Agalianos, Dixon CJ pointed out that "the context, the general purpose and policy of a provision and its consistency and fairness are surer guides to its meaning than the logic with which it is constructed". Thus, the process of construction must always begin by examining the context of the provision that is being construed.

27. It is convenient first to refer to the relevant provisions of the LCS Act, and then to the application of s 86 within Chapter 4 of the MAC Act.

28. The LCS Act confers an entitlement on the “insurer of a claim” to make an application for an injured person to become a participant in the Scheme without that person’s consent. The “claim” is that person’s claim for damages in respect of injury caused in a motor vehicle accident (LCS Act, s 5; MAC Act, s 3). The insurer is the “insurer for the purposes of Chapter 4 (Motor accident claims)” of the MAC Act with respect to that claim (s 3(1)). Under ss 78 and 80 of the MAC Act the insurer has the conduct and control of the defence of that claim, as well as of any negotiations to compromise or settle it, and is required to resolve the claim as justly and expeditiously as possible.

29. Section 6 of the MAC Act provides that in the interpretation of its provisions a construction that would promote the objects of that Act is to be preferred to one that would not (s 6(1)). Those objects, identified in s 5, include to provide appropriately for the future needs of those with on-going disabilities; to provide compensation for compensable injuries and encourage the early resolution of compensation claims; to keep premiums affordable, recognising that third-party bodily injury insurance is compulsory; and to benefit all members of the motoring public by keeping the overall costs of the third-party scheme within reasonable bounds.

30. The purpose for the establishment of the LCS Scheme was summarised by Garling J in Thiering v Daly (2011) 83 NSWLR 498; [2011] NSWSC 1345, in a passage adopted in the judgment of the High Court at [14]. The features of the Scheme include that it cover those who, as a consequence of a motor vehicle accident, were catastrophically and permanently injured; that it would provide for all of that treatment and care, including attendant care, for as long as was necessary on an individually assessed basis; and that because the Scheme would attend to the provision of lifetime treatment and care, an injured person would not need, and would not be entitled to, compensation by way of damages for any treatment and care needs.

31. Chapter 4 of the MAC Act applies to claims in respect of motor accidents. In the first instance the claim must be made against the third party insurer, which is given the conduct and control of negotiations in respect of the claim, as well as the conduct of any legal proceedings by which it is pursued (s 78(1)). If the claim cannot be resolved by agreement, there is provision for it to be submitted to a process of administrative assessment. If that assessment does not satisfactorily resolve the claim, it may then be determined by the taking of court proceedings (s 107). Chapter 5 applies to the awarding of damages by a court, and to assessments of damages undertaken as part of the administrative process directed to the settlement and resolution of claims.

32. Chapter 4, Pt 4.3, imposes duties on the insurer and the claimant with respect to the assessment and resolution of a claim. Some of those duties are imposed in general terms. Others apply depending on whether court proceedings have or have not been commenced. An overriding duty is imposed on the insurer to endeavour to resolve the claim, by settlement or otherwise, as justly and expeditiously as possible (s 80(1)). The duties imposed on a claimant include to co-operate with the person against whom the claim is made and that person’s insurer for the purpose of giving them “sufficient information” to be able to make “an early assessment of liability” and “an informed offer of settlement” (s 85(1)). That duty applies until court proceedings have been commenced in respect of the claim.

33. Section 86 is concerned with the provision of information of a particular kind. Specifically it is directed to ensuring that the person against whom the claim is made, or that person’s insurer, have for the purpose of responding to the claim, the benefit of medical examinations and assessments undertaken by practitioners or assessors nominated by them.

34. As appears from [10] above, the LCS Act confers a “choice” on the CTP insurer to respond to a claim made by a person eligible to become a participant in the Scheme by electing to have their treatment and care needs dealt with in the Scheme rather than by an award of damages. Section 130A is part of and gives effect to that legislative scheme by removing the claimant’s entitlement to damages for such needs as are covered by the Scheme.

35. In making a request under s 86(1) for the purpose of determining a claimant’s eligibility for participation in the Scheme, the insurer is responding to the claim in a way expressly provided for by s 130A and the LCS Act. Its doing so is within the purpose for which the entitlement in s 86(1) is conferred. In concluding otherwise the primary judge did not have sufficient regard to the scheme of the two Acts and the significance of s 130A.

Conclusion

36. In my view the appeal should be allowed and the orders determining question 2 should be set aside. That question should be answered as follows so as to take account of the observation in [19] above:

The insurer or a person against whom a motor accident claim is made may under s 86(1) of the Motor Accidents Compensation Act 1999 (NSW) request the claimant to undergo a medical examination or assessment for the purpose of determining that person’s eligibility for participation in the Lifetime Care and Support Scheme. If the claimant fails without reasonable excuse to comply with such a request court proceedings cannot be commenced or continued in respect of the claim where the failure continues. Question 2 otherwise should be answered in the negative.

37. However before any orders are made giving effect to that outcome the parties must have an opportunity to make submissions as to whether the applicant should be permitted to amend its notice of appeal as proposed by draft order 3 in [39] below.

38. If the application and appeal are dealt with as I suggest, I would also propose that the costs order made in the Court below not be disturbed and that there be no order as to the costs of the appeal. That is an appropriate outcome which takes account of the general importance of the more specific issue that the fuller answer to the question as formulated by the parties provides.

39. Subject to hearing from the parties, I consider the following orders should be made:

1.   Grant the applicant leave to appeal against order 1 made on 15 March 2016.

2.   Otherwise dismiss the Summons seeking leave to appeal.

3. Direct the applicant to file a notice of appeal limited to ground 2 of its draft notice of appeal (excluding the words “or under UCPR r 23.4”) and to relief seeking an order that question 2 be answered as formulated in order 5 below.

4.   Allow the appeal.

5.   Set aside order 1 made on 15 March 2016 to the extent that it answers question 2 in the negative and in lieu thereof order that question 2 be answered as follows:

The insurer or a person against whom a motor accident claim is made may under s 86(1) of the Motor Accidents Compensation Act 1999 (NSW) request the claimant to undergo a medical examination or assessment for the purpose of determining that person’s eligibility for participation in the Lifetime Care and Support Scheme. If the claimant fails without reasonable excuse to comply with such a request court proceedings cannot be commenced or continued in respect of the claim where the failure continues. Question 2 otherwise should be answered in the negative.

6.   Make no order as to the costs of the appeal.

40. To permit the parties to be heard on these additional matters, the following direction should be made:

The parties to lodge written submissions (not to exceed three pages) with Meagher JA’s Associate, the applicant within seven days of the date of this direction, and the respondent within seven days thereafter, those submissions to address the question in [37] above and the costs order proposed in [38] above. The Court will then determine on the papers the final orders to be made.

41. GLEESON JA: I agree with Meagher JA.

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Decision last updated: 22 September 2016