Wahhab v Insurance Australia Ltd

[2021] NSWSC 521

Supreme Court

New South Wales

Medium Neutral Citation:

Wahhab v Insurance Australia Ltd [2021] NSWSC 521

Hearing dates:

12 May 2021

Date of orders:

12 May 2021

Decision date:

12 May 2021

Jurisdiction:

Common Law

Before:

Basten J

Decision:

(1)   Dismiss the proceedings for judicial review of the decision of the principal claims assessor not to arrange for a general assessment of the claim made by the plaintiff.

(2)   Order that the plaintiff pay the costs of the first defendant.

Catchwords:

ADMINISTRATIVE LAW – judicial review – decision of principal claims assessor under Motor Accidents Compensation Act 1999 (NSW) not to refer claim for assessment – whether extant claim – whether existence of claim a jurisdictional fact or fact to be determined by claims assessor

TORTS – negligence – motor vehicle accident – claim deemed to have been withdrawn – reinstatement refused – whether deemed withdrawal prevented further pursuit of claim – whether claimant could re-lodge claim

Legislation Cited:

Motor Accidents Compensation Act 1999 (NSW), ss 3, 72, 73, 74, 85, 85A, 85B, 90, 93, 94, 95, 96; Ch 4; Pt 4.2; Pt 4.3; Pt 4.4, Div 2

Category:

Principal judgment

Parties:

Samier Wahhab (Plaintiff)
Insurance Australia Ltd (First Defendant)
State Insurance Regulatory Authority (Second Defendant)
Mare Johns in her capacity as the Principal Claims Assessor appointed under s 99A of the Motor Accidents Compensation Act 1999 (NSW) (Third Defendant)

Representation:

Counsel:
Mr R Sheldon SC / Mr B Tzatzagos (Plaintiff)
Mr M P Nesbeth (First Defendant)

Solicitors:
Brydens Lawyers Pty Ltd (Plaintiff)
McCabe Curwood (First Defendant)
Crown Solicitors Office (Second and Third Defendants)

File Number(s):

2020/315111

Judgment

1. BASTEN J: The plaintiff, Samier Wahhab, claims to have been injured in a motor vehicle accident which occurred on 26 March 2016. His solicitors, who continue to act for him, made a claim for damages for personal injury, served on the defendant insurer, on 5 September 2016. That step was taken within the six month period allowed under s 72 of the Motor Accidents Compensation Act 1999 (NSW) (“the Act”).

2. As a result of inaction on behalf of the plaintiff, the claim was deemed, under s 85B(3) of the Act, to have been withdrawn in December 2018 and was not re-instated. On that basis, the principal claims assessor of the Authority administering the Act declined to refer the claim for assessment. This decision is the subject of the present proceedings for judicial review.

3. These being proceedings by way of judicial review, the plaintiff was required to establish either jurisdictional error or error of law on the face of the record. The reasons given by the Principal Claims Assessor were treated as constituting the record of the impugned decision. However, for reasons which will be explained shortly, in my view the question whether there was a claim amenable to assessment was a jurisdictional fact to be determined by the court.

Factual background

4. The brief chronology of events is as follows. The motor vehicle accident the subject of the claim occurred on 26 March 2016. Some five months later, on 8 September 2016, the plaintiff served a claim form on the first defendant, Insurance Australia Ltd, being the third-party insurer of the other vehicle.

5. Within a week, on 13 September 2016, the insurer had written to the plaintiff’s solicitors requesting particulars under s 85A of the Act. Between 1 December 2016 and 18 June 2018 seven letters were sent by the insurer to the plaintiff’s solicitors seeking a response to the request for particulars. On 28 September 2018 a final letter was sent, it now being more than two years and six months since the date of the accident, noting that a failure to provide all relevant particulars within three months would lead to the claim being deemed to have been withdrawn.

6. This demand having failed to elicit a response by 28 December 2018, the statutory deeming of withdrawal of the claim took effect.

7. On 21 March 2019 the plaintiff made an application for the claim to be reinstated. On 3 July 2019 that application was rejected on the basis that the claimant had not provided a full and satisfactory explanation for the failure to provide the required particulars within the time permitted. Understandably, there has been no challenge to that decision.

8. On 12 July 2019 the plaintiff’s solicitor wrote to the solicitors for the insurer stating:

“We have been instructed to re-lodge the Claimant’s Personal Injury Claim Form and medical certificate.”

The copy of the letter provided in evidence did not attach the claim form but it was agreed the original claim form was attached.

9. On 12 November 2019 the plaintiff applied for referral of his claim for a general assessment. On 23 January 2020 a claims assessment officer, Ms Michelle Boyle, rejected the application on the basis that there was no claim to be assessed. There was no challenge to that decision. Rather, on 5 March 2020, the plaintiff made a further application for a general assessment. An opportunity was provided to both parties to make submissions in relation to this application. On 11 August 2020 the principal claims assessor concluded that a second claim could not be made following an unchallenged refusal to reinstate the original claim, in effect affirming Ms Boyle’s decision of 23 January 2020.

10. On 4 November 2020 the claimant commenced proceedings in this Court seeking an order quashing the decision of the principal claims officer made on 11 August 2020. The summons was amended to include the principal claims officer as a party to the proceedings.

Assessment of decision

11. The plaintiff’s case turned on two propositions: the first was that the Act contained no prohibition on the lodgement of a second claim (or indeed a third claim) and that the principal claims assessor was therefore obliged to refer the plaintiff’s claim for general assessment under Pt 4.4, Div 2 of the Act.

12. Although the plaintiff said he sought review of “the Principal Claims Assessor’s decision refusing to refer a claim to General Assessment”, [1] in fact referral “to the Authority” for assessment is made by one of the parties, that is the claimant or the insurer, or both: s 90. The role of the principal claims assessor is to make arrangements as to the particular assessor who is to assess the claim: s 93. Accordingly, what the principal claims assessor did not do and, it is said, was obliged to do, was to make the necessary arrangements for assessment under s 93.

    1. Plaintiff’s written submissions, 21 December 2020, par 1.

13. The reference in the plaintiff’s written submissions to the making of a “second claim” was not an accurate description of the process. According to the letters to the Authority from the plaintiff’s solicitor, the form which contained notice of the claim was “relodged” on two occasions, namely 12 July 2019 and 5 March 2020. That too did not accurately reflect a process envisaged by the Act.

14. A “claim” is defined in s 3 of the Act to mean “a claim for damages in respect of the death of or injury to a person caused by the fault of the owner or driver of a motor vehicle in the use or operation of the vehicle.” Relevantly for present purposes, the plaintiff had one claim relating to an incident which occurred at a particular time and place.

15. Further, it is necessary to identify more precisely how a claim is made under Ch 4 of the Act. A claim is not made to the Authority, but is made “by giving notice of the claim” to the other party’s third party insurer: s 72(2)(a). The form in which the notice is to be given is prescribed: s 74(1). The time within which a claim must be made is also prescribed and is six months from the date of the motor accident: s 72(1). A procedure is available for the making of late claims: s 73.

16. These provisions are set out in Pt 4.2 of the Act; Pt 4.3 sets out the duties of both the insurer and the claimant with respect to the resolution of claims. It will be necessary to return to the provisions of this Part dealing with the obligation to give particulars and the consequences of a failure to provide particulars sought by the insurer.

17. Part 4.4 deals with claims assessment and resolution. As has been noted, s 90 allows the claimant to refer a claim for assessment, while s 93 confers powers on the principal claims assessor to assign claims to a claims assessor. Section 94 provides for the assessment of claims which are “referred to” the assessor.

18. The effect of this statutory scheme is that a highly prescriptive process must be followed by a person seeking to make a claim for damages resulting from a motor vehicle accident. Assuming the process and the relevant timelines are followed, the only step to be taken by the Authority prior to assessment is the identification by the principal claims assessor of the particular claims assessor who is to undertake the assessment. The claim is not made to the Authority, nor in any relevant sense “lodged” with the Authority. The claim is made to the insurer. Accordingly, the statements by the solicitor for the plaintiff that she had “re-lodged the plaintiff’s personal injury claim form” found no reflection in the statutory scheme. The question to be asked is whether a claimant can make a claim more than once in respect of the same matter.

19. As senior counsel for the plaintiff submitted, there is nothing in the Act which expressly precludes a claim being made more than once. However, the statutory scheme suggests two responses to this assertion. First, if a claim has been properly made and has proceeded through various steps prescribed by the Act and is taken to have been withdrawn, that claim can no longer be referred for assessment. There is only one claim and once disposed of, there is no power to make the same claim again. The provisions of ss 72, 73 and 74 with respect to the making of a claim do not envisage repetition.

20. In this case, a new claim made in July 2019 would have been made more than three years after the accident. It is true that late claims are permitted: thus, s 73(1) provides:

73   Late making of claims

(1) A claim may be made more than 6 months after the relevant date for the claim under section 72 (in this section called a late claim) if the claimant provides a full and satisfactory explanation for the delay in making the claim. The explanation is to be provided in the first instance to the insurer.

Apart from the fact that lodging a notice of claim with the Authority is not the making of a claim, the present matter does not fall within s 73(1) because the claim was made within six months of the accident. It was not a late claim; it did not have to go through the process of justification which may allow a late claim to proceed if the insurer does not take objection, or if the claimant provides a “full and satisfactory explanation for the delay in making the claim”: s 73(3)(b). There was no delay in making the claim in the present case; the delay lay in the failure to comply with later procedures under the Act.

21. There is no provision permitting one claim to be made twice (or more times). Sending a copy of a claim form to the insurer for a second (or third) time is not the making of the claim. In a sense the plaintiff conceded that: his request for an assessment assumed that all relevant particulars had been supplied. Such a document had in fact been supplied to the insurer, but only after the deemed withdrawal. The plaintiff’s case thus required that all prior non-compliance with the Act be disregarded. To imply the availability of such a course would be to subvert the scheme of the legislation and cannot be accepted.

22. The plaintiff’s second proposition relied upon the terminology by which the process terminated in the present case. As a step in the process, the insurer was entitled to seek particulars of the claim, which it did. The responsibilities of the claimant were identified in the Act as follows:

85   Duty of claimant to co-operate with other party (cf s 48 MAA)

(1)   A claimant must co-operate fully in respect of the claim with the person against whom the claim is made and the person’s insurer for the purpose of giving the person and the insurer sufficient information:

(a)   to be satisfied as to the validity of the claim and, in particular, to assess whether the claim or any part of the claim may be fraudulent, and

(b)   to be able to make an early assessment of liability, and

(c)   to be able to make an informed offer of settlement.

…

85A   Duty of claimant to provide relevant particulars of claim

(1)   A claimant must provide the insurer of the person against whom the claim is made with all relevant particulars about the claim as expeditiously as possible after the claim is made.

23. The solicitor for the plaintiff failed to comply with those obligations. (It is possible to state the matter in that way because when an explanation was given in support of the reinstatement application, there was no suggestion that the claimant himself was at fault.) A failure to provide particulars results in consequences prescribed as follows:

85B   Consequences of failure to provide relevant particulars of claim

(1) If after a period of 2 years and 6 months since the motor accident concerned a claimant has failed without reasonable excuse to provide the insurer with all relevant particulars about the claim (as required by section 85A), the insurer may by a written direction given to the claimant within 2 months after the end of that period require the claimant to provide those particulars.

(2)   The insurer’s direction must be given in the form approved by the Authority.

(3)   If the claimant does not comply with the direction within 3 months after it is given, the claimant is taken to have withdrawn the claim.

(4)   The claimant may make an application for reinstatement of the claim:

(a) to the Authority for a claim that is not exempt from assessment under Part 4.4, or

(b) to a court of competent jurisdiction for a claim that is exempt from assessment under Part 4.4.

(5) An application for reinstatement made to the Authority is to be referred for assessment as a dispute under section 96:

(a)   by a claims assessor if made less than 3 years after the date of the motor accident, or

(b)   by the Principal Claims Assessor if made 3 years or more after the date of the motor accident.

(6)   If the application for reinstatement is made less than 3 years after the date of the motor accident, the claim is to be reinstated if the court or claims assessor is satisfied that the claimant has a full and satisfactory explanation for the failure to provide the required particulars.

(7)   If the application for reinstatement is made 3 years or more after the date of the motor accident, the claim is to be reinstated if the court or the Principal Claims Assessor is satisfied that:

(a)   the claimant has a full and satisfactory explanation for the failure to provide the required particulars, and

(b)   the total damages of all kinds likely to be awarded to the claimant if the claim succeeds are not less than 25% of the maximum amount that may be awarded for non-economic loss under section 134 as at the date of the motor accident.

24. It is not in dispute that the insurer took the appropriate steps under s 85B(1), without drawing a response from the plaintiff. Accordingly, pursuant to s 85B(3), the plaintiff was “taken to have withdrawn the claim.” An application for reinstatement was made but rejected. The claim was not reinstated.

25. The plaintiff submitted that “[d]eeming a claim withdrawn is a far cry from dismissing the claim, or even saying that the claim is withdrawn.” [2] The plaintiff further submitted that the Act did not “specify the consequence of a refusal to reinstate the claim”. He sought to draw a distinction between this language and that used with respect to the next step, namely an assessment of damages. Where an assessment is made, the claims assessor must issue “a certificate as to the assessment”: s 94(4). Section 95 then provides that an assessment of liability is not binding on any party to the assessment, but that an assessment of damages is binding on the insurer if the claimant accepts the amount of damages “in settlement of the claim”: s 95. The concept of settlement, it was submitted, was clear: it involved finalisation of a claim.

    2. Plaintiff’s written submissions, par 13.

26. If the claim could not proceed to assessment, the plaintiff was precluded from pursuing the claim in court, as s 108 would preclude such a step. Clear language is necessary to effectively deprive the plaintiff of his legal right to pursue litigation. The language of deemed withdrawal, it was submitted, involved no such element of finality, the Act not stating that the claim was dismissed, so as to determine any right to damages which the claimant might have had. All that was withdrawn, the submission proceeded, was a procedural step, whereby a complainant “signifies an intention to claim damages” by making a claim. [3]

    3. Plaintiff’s written submissions, par 22.

27. It may be accepted that the language of deemed withdrawal differs from that of determination or dismissal. [4] However, the difference is readily explicable on two bases; first, no judicial process has been undertaken and, secondly, there has not been any determination of the merits of the claim. It does not follow that a withdrawn claim somehow remains on foot. The right to take and maintain judicial proceedings is usually constrained by time limits, non-compliance with which can result in the right being lost at an interlocutory stage without a hearing on the merits.

    4. The language is also found in s 110(3).

28. Counsel also submitted that there could be a voluntary withdrawal of a claim which would not constitute abandonment of any right to seek damages in the future. That may be so, though the consequence of a voluntary withdrawal will depend on the stage reached in the statutory scheme and whether any uncompleted steps could subsequently be taken in compliance with the Act. That is not what happened in this case, and the possibilities need not be pursued.

29. It is, of course, true that there are procedures whereby judicial proceedings may terminate without prejudice to an applicant’s right to commence fresh proceedings where there has been no final determination. However, the proper construction of the Act turns not on analogies which might be drawn from proceedings in other statutory and institutional frameworks, but by an understanding of the operation of the Act itself. The meaning of s 85B is clear: if a claim is withdrawn, there is no extant claim. Therefore, there is no claim which can be referred by either party for assessment. Accordingly, there is no obligation, or power, on the part of a principal claims assessor to make arrangements for an assessment to be undertaken. The power of a party to refer a claim for assessment is conditional upon there being an extant claim which is subject to the requirements of Ch 4. A claim which has been withdrawn is not such a claim. Accordingly, there was no claim for referral under s 90. The decision of the principal claims assessor did no more than recognise this fact.

Jurisdictional fact

30. As foreshadowed, the existence of a claim may be characterised as a jurisdictional fact in the sense that the fact does not ultimately depend upon an opinion formed by the Authority or, in particular, the principal claims assessor, but on the court’s determination.

31. The principal claims assessor understood that the function she was required to undertake was a “special assessment” under s 96 of the Act. That section relevantly provides:

96   Special assessments of certain disputes in connection with claims

(1)   This section applies to a dispute between a claimant and an insurer as to:

(a1) whether for the purposes of section 34 (Claim against Nominal Defendant where vehicle not identified) there has been due inquiry and search to establish the identity of a motor vehicle, or

(a) whether a late claim may be made in accordance with section 73, or

(b)   whether the claimant has a full and satisfactory explanation for non-compliance with the police accident report requirement under section 70, or

(c) whether a claim may be rejected for non-compliance with section 74, or

(d)   whether the insurer is entitled to delay the making of an offer of settlement under section 82, or

(e)   whether a payment is required to be made under section 83 (not being a medical dispute that may be referred to a medical assessor under Part 3.4), or

(f)   whether a payment is required to be made under section 84A (Duty of insurer to make interim payments in case of financial hardship), or

(g) whether a request made of a claimant under section 85 (Duty of claimant to co-operate with other party) is reasonable or whether a claimant has a reasonable excuse for failing to comply with that section, or

(h) whether the insurer is entitled to give a direction to the claimant under section 85B (Consequences of failure to provide relevant particulars of claim), or

(i) whether a claim that is taken to have been withdrawn under section 85B should be reinstated.

…

(4)   An assessment of a dispute under this section is binding on the parties to the dispute to the extent that it relates to the duties of the parties with respect to the claim under Part 4.3.

The defendant insurer relied on subs (4) to support its view that the effect of a deemed withdrawal was final, and the ruling to that effect, binding.

32. However, it is not clear that the function being exercised by the principal claims assessor (and by Ms Boyle on 12 July 2019) dismissing an application for a general assessment, fell under any of the separate limbs of s 96(1). That means that refusal to arrange for an assessment under s 93 is not the subject of any dispute resolution mechanism under the Act. Thus, the validity of a refusal to make such arrangements can only be resolved by this Court. Where the reason for the refusal was that there was no extant claim under the Act capable of referral by the claimant, the existence of such a “claim” must be a jurisdictional fact to be determined by the Court.

33. On the basis that the matter turns upon a judicial determination, I am satisfied that since July 2019 there has been no extant claim under the Act which could be referred by the plaintiff for assessment and the failure of the principal claims assessor to make arrangements for such an assessment was correct. If that approach is wrong, and the matter was indeed one for resolution to the satisfaction of the principal claims assessor, no legal error has been identified in her application of the Act.

Conclusion

34. For these reasons, the proceedings in this Court must be dismissed. The plaintiff must pay the costs of the insurer as the active defendant. No separate claim for costs was made by the Authority or the principal claims assessor, being the second and third defendants respectively.

35. Accordingly, I make the following orders:

1. Dismiss the proceedings for judicial review of the decision of the principal claims assessor not to arrange for a general assessment of the claim made by the plaintiff.

2. Order that the plaintiff pay the costs of the first defendant.

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Endnotes

Decision last updated: 12 May 2021