Phung v AAI Ltd t/as AAMI - [2022] NSWPICMR 12

CERTIFICATE OF DETERMINATION OF MERIT REVIEWER
CITATION:	Phung v AAI Ltd t/as AAMI [2022] NSWPICMR 12
CLAIMANT:	Truong Phung
INSURER:	AAI Ltd t/as AAMI
MERIT REVIEWER:	Ray Plibersek
DATE OF DECISION:	24 February 2022
CATCHWORDS:	MOTOR ACCIDENTS- Merit Review; legal costs for treatment and care dispute; claim for maximum regulated legal costs; sections 8.3 and 8.10 of the Motor Accident Injuries Act 2017; Held- claimant not awarded maximum regulated legal costs.
DETERMINATIONS MADE:	The Insurer is to pay the Claimant’s reasonable and necessary legal costs assessed in accordance with the Motor Accident Injuries Act 2017 (the MAI Act) and the Motor Accident Injuries Regulation 2017 (the Regulations) in the amount of $1,000 plus GST totalling $1,100 in respect of the application for treatment and care dispute.

Issued under section 7.13(4) of the Motor Accident Injuries Act 2017

Background

There is a dispute between Truong Phung (the Claimant) and AAI Ltd t/as AAMI (the Insurer) about a merit review concerning legal costs for a treatment and care dispute for physiotherapy.
The Claimant was injured in a motor vehicle accident on 17 January 2019.
On 18 November 2019, the Claimant’s General Practitioner made a request for physiotherapy treatment for the Claimant.
On 22 November 2019 the Insurer denied the request for treatment.
On 13 December 2019 the Claimant requested an internal review of the Insurer’s decision to refuse the request for treatment.
On 19 March 2020 the internal review decision affirmed the original decision to refuse the request for treatment.
On 23 April 2020, an application was made to the Dispute Resolution Service seeking a review of the decision to refuse the physiotherapy request.
On 18 November 2020 Medical Assessor David Gorman issued a Certificate that the requested treatment did relate to the injury caused by the motor accident, but that it was not reasonable and necessary in the circumstances and will not improve the recovery of the injured person.
On 19 March 2021 the Claimant’s solicitors issued an invoice for their legal costs to the Insurer for $1,660.16 plus GST.
In response, by letter dated 13 April 2021, the Insurer denied payment of the full amount claimed and instead offered professional legal costs of $622.56 + GST (6 monetary units) for the treatment and care application.
The Claimant and his solicitors have now lodged a dispute seeking a determination that the Insurer pay the maximum fees allowed for the treatment and care application.
I note the background facts outlined above are taken from the submissions from the parties as no original documents were provided by the parties.

Submissions

In submissions dated 2 August 2021, (A 1), the Claimant’s solicitors contend that the Claimant is entitled to costs in accordance with Schedule 1, Part 1, Clause 2 of the MAI Act. They submit that legislation is clear that the maximum costs are 16 monetary units in connection with a medical assessment. They refer to Schedule 1, Part 1(2)(1) of the Regulations which uses the phrase “in connection with”. The solicitors…

Grounds of appeal

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

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

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

Consideration

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

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

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Details

Case: [2022] NSWPICMR 12
Decision Date: 24 February 2022

CaseChat Overview and Summary

The matter before the court was an application for review of a decision regarding legal costs incurred in a motor accident case between Phung, the claimant, and AAI Ltd t/as AAMI, the insurer. The dispute centred on the entitlement of the claimant to maximum regulated legal costs under sections 8.3 and 8.10 of the Motor Accident Injuries Act 2017. The case was heard by the Civil and Administrative Tribunal of New South Wales, which is responsible for merit reviews of decisions made under the Motor Accidents Authority of New South Wales.

The key legal issues addressed by the tribunal were whether the claimant's legal costs were reasonable and necessary, and whether the claimant was entitled to the maximum regulated legal costs as provided by the Act. The claimant argued that the costs incurred were reasonable and necessary for the conduct of the case, and that they should be entitled to the maximum regulated legal costs. The insurer contested the claim for maximum costs, arguing that the costs were not necessary and that the claimant should not be entitled to the maximum amount.

In its decision, the tribunal found that the claimant's legal costs were reasonable and necessary for the conduct of the case. However, it concluded that the claimant was not entitled to the maximum regulated legal costs. The tribunal reasoned that while the costs were reasonable and necessary, they did not meet the threshold for the maximum regulated legal costs as provided by the Act. The tribunal emphasised that the maximum regulated legal costs are not automatically awarded and that the claimant must demonstrate that the costs are necessary and reasonable in the circumstances of the case. In this instance, the tribunal found that the costs did not meet the required threshold.

The tribunal's final orders were that the claimant was not entitled to the maximum regulated legal costs for the treatment and care dispute. The claimant was, however, entitled to the reasonable and necessary legal costs that had been incurred. The tribunal directed the parties to negotiate and determine the amount of costs to be paid by the insurer to the claimant within a specified timeframe.

Orders