QBE Insurance (Australia) Limited v Powell

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	QBE Insurance (Australia) Limited v Powell [2024] NSWPIC 673
CLAIMANT:	Ashleigh Powell
INSURER:	QBE Insurance Australia Ltd
PRINCIPAL MEMBER:	John Harris
DATE OF DECISION:	6 December 2024
CATCHWORDS:	MOTOR ACCIDENTS - Motor Accident Injuries Act 2017; claimant suffered injury on 27 September 2019; the medical dispute related to whether the IVF treatment was caused by the motor accident; insurer paid treatment expenses on a without prejudice basis following receipt of medical assessment certificate which found in favour of the claimant; insurer advised that it wanted the review to proceed so answers would “inform the consideration of whether the need to have IVF treatment sounds in damages for non-economic loss or whether it is a payment issue in the statutory benefits claim”; future expenses were a matter for Lifetime Care and Support Authority and that party could not be bound by these findings; Blair v Curran applied; the claimant’s entitlement to non-economic loss damages is a separately defined medical assessment matter; Owen v Motor Accidents Authority; Allianz Australia Insurance Ltd v Girgis; Brown v Lewis and Pham v Shui applied; sub-sections 7.23(1) and (2)(b); any medical assessment certificate is only conclusive evidence of what is certified; insurer’s intention was to obtain evidence from the Review Panel relevant to the determination of an issue for non-economic loss; insurer acting on an improper collateral purpose; insurer asserted that it may seek recovery under section 3.43 for payments previously made; arguable that liability finding meant that insurer not liable to pay and entitled to recovery; insurer’s purpose must be the dominant purpose in maintaining the proceedings to constitute an abuse of process; Williams v Spautz applied; onus of showing dominant purpose for maintaining the proceedings as an abuse of process not established; dismissal application exercised sparingly and with exceptional caution; Insurance Australia Ltd v Fayed applied; previous decision infected with jurisdictional error as factual finding made contrary to parties agreed position; that decision considered afresh; application to summarily dismiss the review not established.
DETERMINATIONS MADE:	1. The decision dated 19 November 2024 is infected with jurisdictional error and considered afresh. 2. The application to dismiss the review of the medical assessment pursuant to s 54 of the Personal Injury Commission Act 2020 is rejected.

REASONS

BACKGROUND

There is presently an application for review of a medical assessment before a Medical Review Panel. That Review Panel has requested that the review be dismissed. The application for summary dismissal was referred to me.
For the following reasons I am not satisfied on the relevant onus that the review of the medical assessment should be summarily dismissed.
Ms Ashleigh Powell (the claimant) suffered serious life-threatening injuries resulting from the motor accident on 27 September 2019. The claimant was driving a Vespa scooter when the insured vehicle crossed double yellow lines and collided with the claimant at high speed. The claimant was hospitalised for over eight months and required over 24 operations.
The insurer is liable to pay to Ms Powell any damages and/or statutory compensation entitlements under the Motor Accident Injuries Act 2017 (the MAI Act).
In November 2021 the insurer declined the claim for in vitro fertilization (IVF) treatment, a decision which was confirmed on internal review in March 2022. The insurer asserted that the claimant made “numerous complaints” about the dispute but did nothing to advance the claim. In February 2023 the insurer commenced proceedings in the Personal Injury Commission (Commission) concerning the claim for IVF treatment. Pursuant to Schedule 2, cl 2 of the MAI Act this is a medical assessment matter.
A medical assessment matter is determined in accordance with Division 7.5 of the MAI Act. This means that the matter is determined at first instance by a Medical Assessor[1] and, pursuant to s 7.26 of the MAI Act, on review by a review panel.
[1] Section 7.20 of the MAI Act.
The medical assessment of the physical injuries was referred to Medical Assessor Izzo who issued a Medical Assessment Certificate dated 31 January 2024 (the medical assessment certificate). The Medical Assessor made the following relevant finding:[2]
“The MVA caused major physical trauma requiring 24 operations and eight months in hospital with many injuries including a shattered pelvis. This led to her having no further periods and ovarian ‘shutdown’ or premature menopause. A well-documented effect of such severe trauma. Now leaving ovarian stimulation and IVF as the only way to achieve a pregnancy. This is confirmed on the series of investigations including hormones and AMH.”
[2] Medical assessment certificate, [15].
The insurer subsequently submitted that Medical Assessor Izzo did not have sufficient regard to material before him and that the findings be “given little weight”.[3] This is not an acceptance or rejection of Medical Assessor Izzo’s determination, as the insurer asserted, but simply a statement as to what the Medical Assessor concluded.
[3] Insurer’s further submissions dated 25 November 2024 (Insurer’s further submissions), par 4.
The insurer had made no payments relevant to the medical dispute prior to the issuing of the medical assessment certificate. Upon receipt of the medical assessment certificate the insurer accepted that it was binding and made payments on a “without prejudice” basis.
The insurer subsequently submitted that the “without prejudice” payment meant that it had “ongoing rights to seek a review of Dr Izzo’s certificate and reasons”.[4]
[4] Insurer’s further submissions, par 5.
The insurer’s entitlement to review does not exclude the Commission’s ability to exercise the dismissal powers. I do not accept the insurer’s analogy of a payment into Court staying a judgment as either relevant or persuasive.
The Medical Assessor issued a replacement certificate on 17 June 2024. The insurer’s application for leave to review the medical assessment was accepted by the President’s delegate on 4 July 2024.
A review panel was constituted. On 5 September 2024 the Member held a preliminary conference and reported to the parties that:[5]
(a)    it was agreed that the medical dispute related to the retrieval and storage of the claimant’s eggs;
(b) this was treatment and care within the meaning of s 1.4 of the MAI Act;
(c)    the insurer had paid for some of the treatment on a “without prejudice basis”, and
(d)    the parties were asked to “confirm whether the past treatment that has been provided and paid for remains in dispute”.
[5] This history is taken form the Review Panel’s report dated 1 November 2024, [10].
The parties have provided various responses to the Review Panel’s directions. The claimant then alleged that not all past IVF payments had been met by the insurer.

REVIEW PANEL’S RECOMMENDATION

On 1 November 2024 the Review Panel issued a document headed “Review Panel Report and Referral” when it requested that the matter be summarily dismissed. The Review Panel noted its earlier view that the parties were asked to confer and agree on what is unpaid and expressed its preliminary view that “if the insurer had agreed to pay for the claimant’s IVF treatment” then all reasonable expenses “should also be paid”.
The Review Panel also noted the insurer’s submission that:
“[T]he Panel’s determination about IVF however will inform the consideration of whether the need to have IVF treatment sounds in damages for non-economic loss or whether it is a payment issue in the statutory benefits claim.”
The matter was then referred to me when the following direction was issued:
“I have received a copy of the Panel’s report and directions dated 1 November 2024. The insurer can file and serve any submission, by close of business, 8 November 2024, addressing: 1. any errors in the Panel’s report; 2. any reasons why the review should not be dismissed; and 3. why the application for review is not an abuse of process considering the insurer’s recorded response at paragraph 14(c) of the Panel’s report.”
The insurer filed submissions in response to the direction. These submissions are referenced in the findings.

FINDINGS

Section 54 of the Personal Injury Commission Act 2020 (PIC Act) applies to panel review proceedings[6] and relevantly provides that proceedings may be dismissed if:
“(a)    if it is satisfied that the proceedings have been abandoned, or
(b)      if it is satisfied that the proceedings are frivolous or vexatious or otherwise misconceived or lacking in substance, or
(c)      for any other ground of dismissal specified in the Commission rules.”
[6] See Rule 127 (1)(d) of the PIC Rules.
Rule 77(b)(v) of the Personal Injury Commission Rules (the PIC Rules) provides that s 54(c) of the PIC Act applies to motor accidents legislation when:
“(v) the application is being used for an improper purpose or is otherwise an abuse of process.”
Table B of the delegated functions provides that the function under Rule 127(3) is delegated to various persons including a Principal Member.
The principles of summary dismissal are discussed in Insurance Australia Ltd v Fayed[7] and those principles are repeated in these reasons. It is sufficient to repeat that a “strike out” (dismissal) application is exercised sparingly and in circumstances where the applicant’s (in this case the insurer’s) case is taken at its highest.
[7] [2023] NSWPICMP 413.
I am required to be satisfied that the insurer’s dominant purpose for maintaining the proceedings is an abuse of process.[8] The abuse is not limited to the time when proceedings are commenced and can occur because the proceedings are maintained as an abuse of process.[9]
[8] Williams v Spautz (1992) HCA 34 (Spautz) at [42].
[9] Spautz at [11].
There was initial confusion in the parties’ respective submissions as to whether all past expenses for the IVF treatment had been paid by the insurer. In earlier submissions the claimant maintained that not all past expenses had been paid. On 1 October 2024 the Review Panel requested the parties to “confer and agree on what is or what is not in dispute”.[10]
[10] Review Panel direction 1 October 2024, [12].
The insurer advised the Review Panel in late October 2024 that it had “now actioned to reimburse all of the IVF and related treatment expenses” and the claimant accepted this statement.
The Review Panel’s direction dated 1 November 2024 confirmed that all past expenses had been paid by the insurer.
The insurer’s subsequent submissions in response to my direction was stated to place the Review Panel’s direction in “context”. The further submissions did not address whether all past expenses had been paid.
The insurer otherwise submitted that s 3.24 refers to statutory benefits for treatment and care being “payable” and there is nothing in the MAI Act restricting an insurer from making a payment whilst maintaining a liability dispute.[11] It submitted that it did so on a without prejudice basis. Whilst I accept that submission, there remains the issue of why the dispute is being pursued in circumstances where there is no outstanding liability to pay past expenses, and the insurer is not liable for the payment of medical expenses incurred after the expiry of five years following the motor accident. That liability rests with Lifetime Care and Support Authority who is not a party to these proceedings and cannot be bound by any finding.[12]
[11] Insurer’s submissions, 8 November 2024, par 21.
[12] Blair v Curran (1939) 62 CLR 464 at [531].
This conclusion is consistent with the insurer’s concession in earlier submissions that the future costs of IVF treatment after 27 September 2024 is irrelevant to the scope of this medical dispute.[13] I agree that the earlier statement is consistent with settled law that only parties to a dispute can be bound by these findings.
[13] Insurer’s letter dated 27 September 2024, [18].
The insurer stated to the Review Panel, and repeated in its response to my request, that it is using these proceedings to obtain further evidence on the issue of the assessment of non-economic loss damages. The insurer emphasised in its submissions what it said to the Review Panel. This is repeated herein. The insurer submitted:[14]
“However, it is anticipated that the determination of the dispute before the Review Panel will facilitate the proper determination of how the IVF treatment to be dealt with, namely whether it is an issue that goes to the consideration for damages for non-economic loss or where there is a statutory benefit payable as treatment relating to an injury resulting from the motor accident under s 3.24(2).”
[14] Insurer’s letter dated 27 September 2024, [4].
Later in its submissions the insurer noted that the Review Panel will determine whether the IVF treatment is as a result of an injury and submitted:
“If the former, [not caused by] the IVF treatment is not relevant to any part of the claimant’s claim against the insurer.
…
Either determination by the review panel goes to the full extent of the claimant’s pain and suffering from the accident, as indeed and any treatment does.”
In subsequent submissions the insurer stated that it has never been its position that it is pursuing these proceedings for a collateral purpose.[15] It emphasised the use of word “facilitate” and that a decision “goes to the determination of an issue in the claimant’s claim” in the assessment of non-economic loss damages. The insurer stated that the “treatment dispute” has broader ramifications and submitted:[16]
“The determination of whether IVF treatment arises from an injury sustained in the accident will be a decision of the PIC of some persuasive effect on all other determinations in this claim. Individual disputes in this claim cannot be viewed in isolation. To do so would create inconsistency in the decision-making processes of the PIC.”
[15] Insurer’s subsequent submissions, par 11.
[16] Insurer’s subsequent submissions, par 18.
The insurer repeated in its submissions that the medical dispute is also being maintained because the Review Panel certificate will be used as evidence of the assessment non-economic loss damages.
The findings of the Review Panel or Medical Assessor are not determinative of causation in any other dispute between the parties: Owen v Motor Accidents Authority;[17] Allianz Australia Insurance Ltd v Girgis;[18] Brown v Lewis[19] and Pham v Shui.[20]
[17] [2012] NSWSC 650.
[18] [2011] NSWSC 1424
[19] [2006] NSWCA 587.
[20] [2006] NSWCA 373.
The insurer accepted that the decision of the medical assessment certificate does not bind a Member of the Commission on causation in the determination of other disputes.[21] However, it inconsistency emphasised that there should be an avoidance of “inconsistency” between various disputes.
[21] Insurer’s subsequent submissions, par 17.
The above authorities concern the provisions of the Motor Accidents Compensation Act 1999 (the MAC Act). Having regard to the provisions of the MAI Act, particularly sub-ss 7.23 (1) and (2)(b), any medical assessment certificate is only conclusive evidence of what is certified. In light of the consistent statutory provisions concerning the conclusiveness of medical assessments issued under the MAI Act and MAC Act, the authorities referenced above apply to the MAI Act.
Any response by the Review Panel to this medical dispute will not conclusively determine the entitlement to recover damages. Whether the claimant is entitled to non-economic loss damages is a separately defined medical assessment matter.[22]
[22] See Sch 2 cl 2 of the MAI Act.
The insurer’s submission that the determination of the medical assessment matter for treatment is relevant to an aspect of causation in the determination of non-economic loss damages in the common law claim for damages shows that the insurer seeks to obtain an opinion from this Review Panel to assist in the determination of a separate issue. In further submissions, whilst denying on the one hand that it was using these proceedings for a collateral purpose,[23] the insurer emphasised that the review is being pursued for a collateral purpose, that is to secure a decision that “facilitates”, “goes to” or will have a “persuasive effect” on the determination of other aspects of the damages claim.[24]
[23] Insurer’s subsequent submissions, par 11.
[24] Insurer’s subsequent submissions, pars 12, 18 and 19.
Any reasons provided by the Review Panel are not binding in any other medical assessment matter although they are clearly expert opinion. The present proceedings are potentially frivolous and vexatious where the insurer has conceded it has a collateral purpose in securing an opinion, which whilst not binding, will assist in the assessment of non-economic loss.
The insurer referred to the delay in these proceedings and argued the payments were made in good faith. I accept those submissions. I accept that when the application for assessment and review application was filed, there was a medical dispute for treatment and care which required a determination relevant to the issue of statutory benefits. No suggestion of improper purpose arose in those circumstances.
The insurer properly paid some if not most of those expenses following the receipt of the medical assessment certificate of Medical Assessor Izzo and has agreed to pay all expenses. However, the insurer’s submissions, that it acted properly in making payments in good faith, are irrelevant to the question I am required to determine.
The insurer submitted in the context of s 3.24 of the MAI Act that:[25]
“Who paid for the treatment provided is not a medical assessment matter.”
[25] Insurer’s submissions, 8 November 2024, [24].
Whilst that is correct, there is no reason to pursue a medical dispute if the findings of a Medical Assessor or a Review Panel have no practical consequences for that dispute. If treatment has been paid, then the proceedings are frivolous and vexatious as they have no utility. A similar conclusion would arise if an injured person pursued a medical dispute on treatment with no intentions of undertaking that treatment.
In its recent submissions the insurer provided another purpose for the review. The insurer stated:[26]
“The insurer has reserved its rights regarding the IVF treatment and has made payments consistent with the beneficial nature of the legislation and the objects of the Motor Accident Injuries Act. With those payments having been made on a ‘without prejudice’ basis, the insurer may well seek recovery of those payments from the claimant. That Is not anticipated but it is a potential consequence of the insurer reserving its rights when making the payments.”
[26] Insurer’s subsequent submissions, par 16.
Within the above paragraph the insurer referenced paragraph 14(b) of the Review Panel’s direction dated 1 November 2024. That paragraph provided:
“In those directions, amongst other things relevant to the substantive treatment issue, QBE:
…
(b) there is no provision in the legislation for without prejudice payments, but there is a provision (s 3.43) which enables the insurer to recover over payments made in the statutory benefits claim.”
The claimant’s response to this submission, noted by the Review Panel, was that “s 3.43 operates to allow the insurer to recover the overpayment of benefits but not the recovery of benefits approved and agreed to be paid including those paid on a ‘without prejudice’ basis.”[27]
[27] Review Panel direction, 1 November 2024, 16(b).
Section 3.43(1) of the MAI Act provides:
“If an insurer pays to a person an amount of statutory benefits that exceeds the amount due to the person or that is an amount the insurer is not liable to pay, the person is liable to refund that amount to the insurer.”

This provision applies to the situation where there is an overpayment or where “the insurer is not liable to pay”.
There is no basis to suggest that that the payments made on a without prejudice basis were an “overpayment”.
It is arguable that a finding by a Review Panel in favour of the insurer on the issue of causation means that “the insurer is not liable to pay” and the person may be liable to refund that amount. The voluntary nature of the payments made by the insurer in circumstances where it was reviewing the medical assessment suggests the insurer’s submission, articulated at paragraph 44 is difficult to accept.
Whilst I have suspicions about the veracity of the insurer’s submission (see last sentence in paragraph 44) that, whilst “not anticipated … it is a potential consequence” that the insurer may seek recovery, any suspicions I hold do not justify an adverse factual finding.
As it was conceded, the insurer is presently liable to make the treatment payments once the medical assessment certificate was issued. With reservations and doubting the insurer’s submission that it may seek recovery, I accept it is arguable that a contrary decision by the Panel means that “the insurer is not liable to pay”.
There is a heavy onus in dismissing proceedings based on a finding of a “dominant” improper purposes, albeit in the context that the proceedings are being maintained (as opposed to being brought) for a collateral purpose.
I am not satisfied on the relevant heavy onus in summarily dismissing proceedings based on a dominant improper collateral purpose. However, I am clearly satisfied that the insurer is continuing to act on an improper purpose, and these reasons intentionally record my doubt that the insurer has a legitimate purpose. However, in these circumstances I decline to dismiss the review.

Previous decision

I initially provided reason in this matter on 19 November 2024. On 20 November 2024 I issued the following direction to the parties:
“Further to the decision issued yesterday, the messages in the portal from the insurer dated 22 October 2024 and from the claimant dated 28 October 2024 have now been brought to my attention. These messages were not accessible in the documents provided to me prior to the issuing of the decision.
On 22 October 2024 the insurer wrote in the portal messages:
‘Further to the review panel directions dated 1 October 2024, I am instructed that the insurer has now actioned to reimburse all of the IVF and related treatment expenses. I have requested the claimant's solicitor confirm his client's agreement on this issue.’
On 28 October 2024 the claimant replied:
‘The claimant confirms that in principle the insurer has agreed to pay for all of the IVF and related treatment expenses.’
Those messages are inconsistent with the finding that there were past unpaid expenses and effect the ultimate decision (see at [40]). These messages were not provided to me prior to the issuing of the decision.
I otherwise note that the claimant was not provided with an opportunity to make submissions.
In accordance with the decision in Minister for Immigration and Multicultural Affairs v Bhardwaj,[28] the insurer is to file any submissions by close of business 25 November 2024 why the decision is not infected with jurisdictional error, should be reconsidered and the review summarily dismissed.
I will consider whether the claimant should be heard following receipt of the insurer’s submissions.”
[28] [2002] HCA 11 (Bhardwaj).
The insurer filed submissions in response to this direction although it made no contradictory submission on the Bhardwaj issue.
I accept that the claimant was initially denied procedural fairness because I made a factual finding contrary to the parties’ agreed position. The previous finding of fact was inconsistent with the parties’ agreement that all expenses had been paid. In accordance with the principles discussed in Minister for Immigration and Multicultural Affairs v Bhardwaj,[29] my decision is infected with jurisdictional error, and it is considered afresh.
[29] [2002] HCA 11 (Bhardwaj).
Otherwise, I have considered the insurer’s further submissions dated 25 November 2024 in considering afresh this decision.

Conclusion

I reject the application to summarily dismiss the review proceedings.

[2024] NSWPIC 673

6 December 2024