Siao v QBE Insurance (Australia) Limited
[2021] NSWPICMR 37
•25 August 2021
| CERTIFICATE OF DETERMINATION OF MERIT REVIEWER | |
| CITATION: | Siao v QBE Insurance (Australia) Limited [2021] NSWPICMR 37 |
| CLAIMANT: | Jing-Tong (Dolly) Siao |
| INSURER: | QBE Insurance (Australia) Limited |
| MERIT REVIEWER: | Terence O’Riain |
| DATE OF DECISION: | 25 August 2021 |
| CATCHWORDS: | MOTOR ACCIDENTS- Merit review; section 8.10 of the Motor Accident Injuries Act 2017; cost; request for parties’ submissions; interpreter (Mandarin); medical dispute; lack of response; interim decision notifying the parties in accordance with clause 7.131 of the Motor Accident Guidelines 6th version (the Guidelines); notify the parties of intention to dismiss the application under clause 7.130(c) and (d) of the Guidelines; failure to comply with directions; ceasing to pursue dispute; decision on the papers; dismissal; Held - decision affirmed. |
| DETERMINATIONS MADE: | 1. The reviewable decision is about whether for the purposes of section 8.10 of the Motor Accident Injuries Act 2017 (the MAI Act) costs and expenses incurred by Ms Siao (the Claimant) are reasonable and necessary, and is therefore a merit review matter under schedule 2(1)(aa) of the MAI Act. 2. The application is dismissed pursuant to clause 7.130(c) and (d) of the Motor Accident Guidelines version 6 (the Guidelines) and the reviewable decision is affirmed. 3. The amount of the Claimant’s costs assessed in accordance with the Motor Accident Injuries Regulation 2017, is $nil inclusive of GST. |
Background
There is a dispute between Jing-Tong (Dolly) Siao and the insurer about whether for the purposes of section 8.10 of the MAI Act costs and expenses incurred by Ms Siao are reasonable and necessary,
The Claimant’s lawyers seek legal costs and disbursements(expenses) for interpreter (Mandarin), solicitors’ costs and GP attendances arising from several medical disputes.
These allegedly outstanding costs were described in the submissions dated 26 February 2021.
The insurer provided submissions in rebuttal dated 18 March 2021.
On 4 June 2021 I caused this case’s Dispute Resolution Officer to write to the claimant with the insurer copied as follows:
“I refer to the parties’ submissions lodged with the application and reply. I note that the insurer submits that the only amounts outstanding for payment relate to:
• Interpreter fees for psychological sessions where the insurer had already denied payment for further treatment and the Claimant still attended and incurred costs.
• Nonattendance fee and interpreting service for medicolegal appointment 9 December 2020
• Dr Davis’ report invoice 15 December 2020 (never served)
On or before 18 June 2021, I require further submissions from the Claimant’s solicitors confirming what payments are outstanding and are pressed; and addressing the grounds of contention in the insurer’s submissions from paragraphs 28 to 39 in particular, or any item that remains outstanding.
Further, I require a schedule itemising each outstanding payment and the service provided. The insurer’s reply, if any, is to be provided by 25 June 2021. The Commission’s decision will be provided on the papers by 2 July 2021.”
I did not receive a response to the above request.
On 21 July 2021 I issued an interim decision notifying the parties in accordance with clause 7.131[1] of the Guidelines in order to notify the parties that I intended to dismiss the application under clause 7.130(c) and (d) of the Guidelines[2] and give them the opportunity to make submissions about the proposed dismissal.
[1]
7.131 An application may be dismissed at the applicant’s request or if determined by the DRS decision-maker. If the DRS decision-maker proposes to dismiss the application, the decision-maker must give all parties to the dispute a reasonable opportunity to make submissions about the proposed dismissal by writing to parties to request the provision of submissions on or before a given date.
[2] 7.130 A DRS decision-maker may at any stage dismiss an application if the decision-maker is satisfied that:..
(c) the applicant failed without reasonable excuse to comply with the DRS decision-maker’s directions
(d) the applicant has ceased to pursue or prosecute the dispute, application or the claim
On or before 28 July 2021 the Claimant was to provide those submissions, addressing the outstanding issues outlined in the earlier direction for submissions.
On or before 4 August 2021 the insurer was to provide any submissions in reply.
I undertook that by 18 August 2021 I would provide my decision on the papers pursuant to clause 7.164 of the Guidelines.
To date the Commission has received no submissions from the Claimant and subsequently none from the insurer.
Costs
12. I am not satisfied that Jing-Tong (Dolly) Siao is entitled to the payment of legal costs for this merit review because costs are not allowed for disputes under schedule 2(1)(aa) of the MAI Act in the Regulation, and there are no exceptional circumstances that would allow costs under s8.10(4)(b) of the MAI Act. [3]
Conclusion
[3] 8.10 Recovery of costs and expenses in relation to claims for statutory benefits…
The application is dismissed pursuant to clause 7.130(c) and (d) of the Guidelines and the reviewable decision is affirmed.
The amount of the Claimant’s costs assessed in accordance with the Motor Accident Injuries Regulation 2017, is $nil inclusive of GST.
Legislation and Guidelines
In making this decision, I have considered the following:
· the application, reply and supporting documentation
· the MAI Act
· the Guidelines
· Motor Accident Injuries Regulation 2017
Terence O'Riain
Merit Reviewer
Personal Injury Commission
(4) The Commission can permit payment of legal costs incurred by a claimant but only if satisfied
that—…
(b) exceptional circumstances exist that justify payment of legal costs incurred by the claimant.
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