Williams v GIO (Motor Accident Injuries)
[2022] ACAT 90
•26 October 2022
ACT CIVIL & ADMINISTRATIVE TRIBUNAL
WILLIAMS v GIO (Motor Accident Injuries) [2022] ACAT 90
MAI 1/2021
MAI 17/2021
MAI 1/2022
Catchwords: MOTOR ACCIDENT INJURIES – application for review of insurer’s decision pursuant to Section 193 of the Motor Accident Injuries Act 2019 – maximum quantum of costs which can be awarded to applicant pursuant to section 198 of the Act and Regulation 6 of the Motor Accident Injuries (ACAT costs orders) Regulation 2020 following successful application – whether section 198 of the Act and the Regulation enable the Tribunal to award a successful applicant unlimited costs to be agreed or assessed
Legislation cited: Legislation Act 2001 s 139
Motor Accident Injuries Act 2019 ss 6, 21, 38, 190, 191, 197, 198, 203
Subordinate
Legislation cited: Motor Accident Injuries (ACAT Costs Orders) Regulation 2020 Regulation 6
MAI (Internal Review) Guidelines paragraph 4.2.5, 4.3, 4.4.2, 5.2
Motor Accident Injuries (Indexation of Benefits) Declaration 2022 (No 2)
Cases cited:Beezley v Repatriation Commission [2015] FCAFC 165
Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597
Minister for Immigration Local Government and Ethnic affairs v Kurtovic (1990) 21 FLR 193
Immigration and Border Protection v WZZARH (2015) 256 CLR 326
Jeray v Blue Mountains City Council No2 [2010] NSWCA 367
Kabourakis v The Medical Practitioners Board of Victoria [2006] VSCA 301
McDonald v Director General of Social Security (1984) 1FCR 354
Neish v Insurance Australia Limited ACN 000 016 722 Trading As NRMA Insurance [2022] ACAT 24
R v L (1994) 49 FCR 534
Sloane v Minister for Immigration, Local Government and Ethnic Affairs (1992) 37 FCR 429
Williams v AAI Limited ACN 005 297 807 Trading As GIO (Motor Accident Injuries) [2021] ACAT 100
List of
Texts/Papers cited: Explanatory Statement to the Motor Accident Injuries Bill 2019
Tribunal:Presidential Member Robinson
Acting Presidential Member T Kyprianou
Date of Orders: 26 October 2022
Date of Reasons for Decision: 26 October 2022
AUSTRALIAN CAPITAL TERRITORY )
CIVIL & ADMINISTRATIVE TRIBUNAL ) MAI 1/2021
BETWEEN:
WADE WILLIAMS
Applicant
AND:
AAI LIMITED ACN 005 297 807 TRADING AS GIO
Respondent
AUSTRALIAN CAPITAL TERRITORY )
CIVIL & ADMINISTRATIVE TRIBUNAL ) MAI 17/2021
BETWEEN:
WADE WILLIAMS
Applicant
AND:
AAI LIMITED ACN 005 297 807 TRADING AS GIO
Respondent
AUSTRALIAN CAPITAL TERRITORY )
CIVIL & ADMINISTRATIVE TRIBUNAL ) MAI 1/2022
BETWEEN:
AAI LIMITED ACN 005 297 807 TRADING AS GIO
Applicant
AND:
WADE WILLIAMS
Respondent
TRIBUNAL:Presidential Member Robinson
Acting Presidential Member T Kyprianou
DATE:26 October 2022
ORDER
The Tribunal orders that:
In relation to application MAI 1/2021, the respondent must pay the applicant the sum of $2,494 by 15 November 2022, comprising of:
(a)$2,220 for the applicant’s costs; and
(b)$274 for ACAT filing fee reimbursement that the applicant paid to lodge Application MAI 1/2021.
In relation to Application MAI 17/2021:
(a)The reviewable decision dated 3 November 2021, which rejected liability for defined benefits, is set aside and the matter is remitted to the respondent for reconsideration in accordance with the Motor Accident Injuries Act 2019 (MAI Act) and the relevant Motor Accident Injuries Guidelines (MAI Guidelines) as well as the directions of the Tribunal set out in the Reasons for Decision.
(b)The same provisions of the MAI Act and Guidelines apply to the reconsideration referred to in order 1 and the same time periods for making the reconsideration decision apply as if order 1 was an application for internal review of the decision to reject liability received by the respondent on the day after the date of these orders.
(c)The applicant is to lodge with the tribunal and give to the respondent an itemised list of costs he has incurred, in accordance with regulation 6(2) of the Motor Accident Injuries (ACAT Costs Orders) Regulation 2020 (MAI Regulation) and any submissions he wishes to make on the issue of costs by 23 November 2022.
(d)The respondent is to lodge with the tribunal and give to the applicant any submissions it wishes to make, if any, in relation to the application for costs and the applicant’s list of costs, or alternatively advise the tribunal and the applicant that it does not propose to make any submissions by 2 December 2022.
In relation to Application MAI 1/2022, the decision is set aside.
The respondent is to lodge with the tribunal and give to the applicant any application for costs he wishes to make along with an itemised list of costs he has incurred in relation to this application, in accordance with regulation 6(2) of the MAI Regulation and any submissions he wishes to make on the issue of costs by 23 November 2022.
The applicant is to lodge with the tribunal and give to the respondent any submissions it wishes to make, if any, in relation to the application for costs and the respondent’s list of costs, or alternatively advise the tribunal and the respondent that it does not propose to make any submissions by 2 December 2022.
………………………………..
Presidential Member H Robinson
For and on behalf of the Tribunal
REASONS FOR DECISION
Background
In the reasons below, a reference to ‘ACAT’ or ‘tribunal’ refers to the ACT Civil and Administrative Tribunal generally, whereas ‘Tribunal’ refers to the Members who heard the application.
The applicant was involved in a motor accident on 14 May 2020. The accident occurred because the applicant suffered a cardiac arrest while driving his motor vehicle. Following the cardiac arrest, his car left the road it was travelling on and came to rest in a depression near the verge of the road. The applicant was taken to the Canberra Hospital after the accident and he was diagnosed with a number of injuries including the cardiac arrest, multiple rib fractures, a manubrium fracture, a splenic laceration, knee injury, and a frontal lobe of the brain abnormality.
He lodged an application for defined benefits with the respondent on 29 July 2020. On 8 September 2020, the respondent accepted liability for defined benefits for injuries caused by the motor accident.
On 3 December 2020, the respondent reversed that decision and denied liability for defined benefits.
After the internal review process took place and the denial of liability decision was affirmed, the applicant applied to ACAT for external review seeking an order that the decision be set aside.[1]
[1] Williams’ submissions dated 13 May 2021 page 3 at [5]
On 20 October 2021, the tribunal set aside the decision of 3 December 2020 and remitted it to the respondent for reconsideration.[2]
[2] [2021] ACAT 100
One of the issues in dispute in Application MAI 1 /2021 was whether any of the applicant’s injuries were caused by the motor accident, or whether they were all the result of the cardiac arrest and the subsequent treatment for that arrest rendered by paramedics and an off-duty nurse who was present at the scene of the accident and assisted the applicant. On 20 October 2021 Presidential Member Robinson, in her reasons for decision in MAI 1/2021, held that at the time that the first reviewable decision was made there were no medical reports available to the decision‑maker which dealt comprehensively with the issue of causation for all injuries.[3] She found that there was no basis for the decision-maker to conclude as they did that there was no evidence of any injury caused by the motor accident.[4] In remitting the matter to the respondent, she directed that the respondent should ask the applicant’s medical practitioner whether any injury was likely to have been sustained because of the motor accident rather than the cardiac arrest.[5] On 25 October 2021, the tribunal ordered the parties to Application MAI 1/2021 to file submissions in relation to any costs order the applicant wished to apply for.
[3] [2021] ACAT 100 at [83]
[4] [2021] ACAT 100 at [96]
[5] [2021] ACAT 100 at [100]
The orders attached to these reasons for decision and the reasons for those orders relate to three applications made by the parties after the decision of 20 October 2021 was delivered.
MAI 1/2021
Pursuant to the orders made on 25 October 2021, the applicant sought a costs order for the costs he incurred in relation to proceedings MAI 1/2021. The respondent does not oppose an order granting the applicant costs for that application. However, there is a dispute about the quantum of costs the applicant is entitled to recover under section 198 of the Motor Accident Injuries Act 2019 (MAI Act) and the Motor Accident Injuries (ACAT Costs Orders) Regulation 2020 (MAIRegulation).
The applicant submits that section 198(1) and regulation 6(1) give the tribunal power to award costs which are not limited or ‘capped’ by regulation 6(3). The respondent submits that it does not oppose an award of costs to the applicant under section 198(1), but those costs are limited by operation of regulation 6(3) to the amount prescribed in the regulation. That amount is currently $2,220 (as indexed in accordance with clause 12 of the Motor Accident Injuries (Indexation of Benefits) Declaration 2022 (No 2).
Legislative Framework
Section 48(1) of the Australian Capital Territory Civil and Administrative Tribunal Act 2008 (ACAT Act) provides that parties to an application before the tribunal must bear their own costs unless the ACAT Act or another territory law otherwise provides or the tribunal otherwise orders.
Section 198 of the MAI Act relevantly provides as follows:
198 External review—costs of proceedings
(1) The ACAT may order a party to pay the costs of the other party arising from an application for external review of an ACAT reviewable decision.
…
…
…
(4) A regulation may prescribe the following:
(a)when an order under subsection (1) may be made;
(b)what may be considered to be a disbursement;
(c)the maximum amount that can be awarded for particular costs;
(d)the maximum amount of costs that can be awarded in relation to an application for external review of an ACAT reviewable decision.
NotePower to make a statutory instrument (including a regulation) includes power to make different provision in relation to different matters or different classes of matters, and to make an instrument that applies differently by reference to stated exceptions or factors (see Legislation Act, s 48).
(5) In this section:
costs include disbursements.
Regulation 6 of the MAI Regulation states:
6 External review—costs of proceedings—Act, s 198 (4)
(1) At any time during a proceeding before the ACAT on an application for external review of an ACAT reviewable decision, a party to the proceeding (the requesting party) may ask the ACAT to order the other party to the proceeding to pay the requesting party’s costs arising from the application for external review (a costs order).
(2) The ACAT may make a costs order if—
(a) the requesting party gives the ACAT itemised details of the costs within the time the ACAT considers appropriate; and
(b) the ACAT is satisfied on reasonable grounds that—
(i) the itemised details show the costs were reasonably incurred; and
(ii) the costs relate only to the preparation of, and appearances in relation to, the application for external review of the ACAT reviewable decision; and
(iii) if a costs order has previously been made in relation to the application—the total of all costs orders for the application do not exceed the maximum amount mentioned in subsection (3); and
(iv) it is appropriate to make the order
(3) The maximum amount that the ACAT can order for costs is$2 000 AWE indexed + ACAT filing fee ACAT filing fee—
(a) includes the fee for filing an application; but
(b) does not include the fee for additional hearing days.
(4) The maximum amount mentioned in subsection (3) includes any GST payable in relation to the work done for or in the proceeding.
(5) However, the costs payable to the requesting party are reduced by the amount of any input tax credit for GST to which the requesting party is entitled in relation to the party’s costs.
(6) In this section:
costs means the fees, disbursements and expenses that the ACAT considers necessary for the preparation of, and appearances in relation to, an application for external review of an ACAT reviewable decision.
input tax credit—see the A New Tax System (Goods and Services Tax) Act 1999 (Cwlth), section 195-1 (Dictionary).
itemised details, of the costs, means details of—
(a) the legal costs (clearly identifying costs that are legal fees and costs that are disbursements) payable by the party to the party’s lawyer; and(b) other fees or expenses incurred by the party in relation to the application for external review of an ACAT reviewable decision.
The applicant has submitted that the combined effect of section 198(1) and regulation 6(1) enables the tribunal to order that a party can recover their costs of an application under the MAI Act without applying the limitation on the maximum amount of recoverable costs which regulation 6(3) imposes. The submission relies on the fact that different words are used in section 198(1), which is the section which enables the tribunal to make an order for costs in favour of a party, and in section 198(4)(d) which provides that a regulation can specify the maximum amount of costs that can be awarded by the tribunal in relation to an application for external review.
The applicant has submitted that the words “pay the costs of the other party” in section 198(1) confer a general power on the tribunal to order one party to pay the other party’s costs, which is not constrained by the cap on costs in regulation 6(3). That regulation states that the maximum amount that the tribunal can order for costs is $2,000 AWE (average weekly earnings) indexed plus the ACAT filing fee. The applicant has drawn a distinction between the expression “costs that can be awarded”, which is the language used in section 198(4)(d) and “an order to pay the costs” which is the language used in section 198(1). He says the words in section 198(1), (‘the ACAT may order a party to pay the costs of the other party’), contemplate an award of costs at large, which cannot be fixed. The quantum of the costs order must either be agreed between the parties or assessed.[6] The applicant further submits that by contrast section 198(4)(d) and regulation 6(3) “contemplate situations where a gross order” for a specific amount of costs is appropriate. He states that for example the tribunal may make a gross costs order under section 198(4)(d) and regulation 6(3) in cases where the dispute between the parties is narrowly defined and can be resolved on the papers. However, where the matter raises complex legal issues, requiring multiple appearances and written submissions, the applicant submits that to interpret section 198 and regulation 6 as capping costs payable at $2,000 (AWE indexed) would offend the principle of ensuring motorists are able to obtain legal assistance to enforce their rights under the MAI Act.
[6] Williams’ costs submissions dated 8 November 2021 at [33]-[37]
Reference has been made in the applicant’s submissions to the Explanatory Statement – Motor Accident Injuries Bill 2019 (MAI Bill) provided in relation to the costs of proceedings for external review of an insurer’s decision.[7] In the Explanatory Statement provided in relation to clause 195 of the MAI Bill which became section 198 in the MAI Act, the statement says:
A regulation may be prescribed and provide where an order for costs is being considered, what may be considered to be a disbursement and the maximum amount that can be awarded for particular costs or if costs should be awarded overall for the external review [emphasis added]
[7] Williams’ costs submissions dated 8 November 2021 at [40]-[45]
The applicant submits that the use of the word “or” in the above statement makes it plain that the legislature contemplated two approaches for the tribunal in awarding costs. The first being for particular costs and the second being an award at large for costs to be agreed or assessed which is not an award captured by regulation 6(3).
The Tribunal has also been referred by the applicant to the MAI Bill in relation to section 203 (1) of the MAI Act which provides:
A regulation may prescribe the legal costs and fees payable by applicants and insurers in relation to applications for defined benefits including in relation to dispute resolution.
The MAI Bill in relation to section 203(1) said:
This provision is intended to ensure legal costs and fees are appropriate within the model accidents injuries scheme, and will not prevent an individual from obtaining a lawyer’s services.
The applicant has submitted that to limit recoverable legal fees to $2,000 indexed in complex disputes before the tribunal would prevent individuals from obtaining legal services.
We do not accept the applicant’s submissions in relation to the distinction he draws between an order for costs contemplated by section 198(1) and the maximum amount of costs that can be awarded by a regulation contemplated by section 198(4)(d). We agree with the respondent’s submission in this regard, that the terms ‘order to pay costs’ and ‘award costs’ in sections 198(1) and 198(4)(d) use different words, but it is clear from the wording of the section as a whole that those words have the same effect. There is no ambiguity at all that we can see in the language of section 198 or regulation 6 which would lead us to look for an interpretation of the words in the section other than that of their ordinary and natural meaning.
Sub-section 198(1) of the MAI Act gives the tribunal power to make a costs order and sub-section 198(4) makes the order subject to the conditions and limitations set out in the regulation. Regulation 6(3) clearly states that the maximum amount that the tribunal can order for costs in an application for external review of an ACAT reviewable decision is $2,000 AWE indexed. Regulation 6(2)(b)(iii) provides that in order to make a costs order ACAT must be satisfied that the total of all costs orders for an application for external review do not exceed the maximum amount mentioned in regulation 6(3), that is $2,000 AWE indexed. In our view, these provisions are clear in their intention to limit the maximum quantum of costs the tribunal can award in an MAI application for external review. It is not possible as a matter of construction to interpret them in any other way. It is therefore not necessary or appropriate for the Tribunal to look at the purpose or the objects of the MAI Act[8] in order to find the preferable meaning of the words used by the legislature. As the Full Federal Court said in R v L (1994) 49 FCR534 at 538:
The requirement of s 15AA(1)[of the Acts Intrepretation Act 190 (Cwth)[9]], that one construction be preferred to another can have meaning only where two consecutive constructions are otherwise open, and s 15AA(1) is not a warrant for redrafting legislation nearer to an assumed desire of the legislature: Trevisan v FCT (1991) 29 FCR 157 at 162 [per Burchet J]
[8] See section 139 of the Legislation Act 2001
[9] See equivalent provision in s139 of the Legislation
We accept that the clauses of the MAI Bill set out above which the applicant referred to in his submissions can arguably be read as providing support for the proposition that the legislature intended that a party, who is entitled to a costs order in an external review application, can recover any appropriate costs incurred in receiving legal services without being limited by the cap imposed by regulation 6(3). However, in circumstances where the wording of the legislation itself is unambiguous the Tribunal cannot look at the MAI Bill or other extrinsic material for prompts to alter the meaning of the words used in the legislative provisions.
In this matter, the applicant has provided itemised details of the costs incurred in relation to application MAI 1/2021. The costs total $33,698.50. Without engaging in an assessment of costs exercise, we are satisfied that in order to prepare and present the application for review, the applicant’s lawyers have spent time and incurred costs well in excess of what the tribunal is authorised to award for costs. It is also reasonably clear that the costs were incurred in the preparation of and the appearances in relation to the application for external review.
We accept, as counsel for the applicant submitted, that it might not be viable for persons injured in motor accidents to obtain legal assistance to challenge a decision if all they can recover for costs is $2,000 (AWE indexed). They may also not be able to find lawyers willing to represent them given that section 203(2) of the MAI Act prevents lawyers from recovering from their client any fees incurred above the maximum prescribed costs set out in Regulation 6. Most of the disputes which lead to external review applications to the tribunal involve some complexity in the facts or the law and sometimes both. They almost always generate hundreds of pages of documentation which must be filed in the tribunal and read by the parties and their lawyers. In this matter the applicant’s summary of costs incurred lists review of 1554 pages of material lodged with the tribunal by the respondent. The current indexed allowable amount for costs inclusive of disbursements and GST, other than the ACAT filing fee, is $2,220. In our experience, this amount would pay for no more than six to seven hours of work for a junior lawyer in the ACT. Although we accept that the allowable amount for costs under the MAI Act would not enable applicants to access legal representation easily, the tribunal can only award costs to a party pursuant to what is set out in the legislation. As the MAI Act and Regulation provide currently those costs are capped at $2,220 plus the cost of the ACAT filing fee of $274.00. We, therefore, award the applicant the sum of $2,494 for costs in application MAI 1/2021.
MAI 17/2021
This application arises out of the decision made by the respondent following the order made by the Tribunal on 20 October 2021 in application MAI 1/2021. That order set aside the first internal review decision and remitted the matter to the insurer for a further decision to be made. The respondent made the further decision, which we will refer to in these reasons as the second internal review decision, on 4 November 2021. That decision provided reasons for denying liability a second time for defined benefits for injuries the applicant sustained on 14 May 2020. In summary, the decision-maker said that liability was denied because:
(a)The applicant bears the onus of proof in establishing the elements required for liability to be accepted and he failed to discharge that onus.
(b)The applicant was provided with an opportunity to provide, through his solicitor, further information about his claim, which was effectively an invitation to engage in consultation about the issues in dispute as required by the MAI (Internal Review) Guidelines (MAI Guidelines). The applicant’s solicitor failed to respond to the request for further information, but the second internal review decision had to be issued by 4 November 2021 so as to comply with the tribunal’s order.
(c)The report of Dr Thomas Gibson, biomechanical engineer, which was uncontradicted, supported the proposition that no injuries listed in the claim form were caused by the motor accident.
(d)The applicant’s medical practitioner, Dr Rozario, in correspondence dated 27 October 2021 advised that he could not say whether any of the applicant’s injuries had been caused directly by the motor accident rather than by the consequences of the cardiac arrest. Dr Rozario had recommended that an opinion be obtained on that issue from an emergency physician or a forensic medical officer. Though there was no medical evidence available to the internal reviewer dealing with the causation of the injuries to the applicant’s spleen, ribs and knee, the internal reviewer considered that it was plausible the injuries could have been caused in the process of removing the applicant from the motor vehicle.
(e)There was no medical evidence provided that attributed any of the injuries to the motor accident.
The applicant was invited to request an external review from the tribunal if he disagreed with the decision. The applicant lodged an application for review of the second internal review decision on 6 December 2021, which is the subject of this application.
At the hearing of the matter, counsel for the applicant submitted that the second internal review decision should be set aside because:
(a)the applicant was denied procedural fairness;
(b)the applicant does not bear the onus of proof under the MAI Act;
(c)in the alternative, the respondent applied the wrong legal test in making the decision; and
(d)the respondent erred in the fact-finding process.[10]
[10] Transcript of proceedings dated 27 June 2022, page 6 at [35]-[41]
The applicant submits that the decision ought to be set aside and remitted to the respondent for further reconsideration.
Counsel for the respondent made submissions as follows:
(a)The respondent was obliged, due to an omission in the MAI Guidelines, to make a decision within ten business days of the day after the tribunal remitted the matter to the respondent, that is by 4 November 2021. It was open to the applicant’s solicitor to agree to an extension of time and thus overcome the omission in the guidelines, however, he did not do so, and the time limit could therefore not be extended.[11]
(b)The respondent sought input from the applicant on the issues in dispute before the second reviewable decision was made but none was provided., accordingly, there was no procedural unfairness in the process of making the decision and the decision should be affirmed.
(c)The applicant has not identified any evidence he proposes to adduce or rely upon to tip the balance on liability in his favour.[12]
(d)Therefore, if the decision is set aside the decision should not be remitted to the respondent for further consideration. Instead, the Tribunal should substitute its own decision on the available evidence.
[11] Transcript of proceedings dated 17 June 2022, page 33-34
[12] Transcript of proceedings dated 17 June 2022, page 35 at [5]
We do not agree with the respondent’s submission that the decision should be affirmed, nor with the submission that this Tribunal can substitute its own decision.
As the Tribunal has held in previous decisions[13], the role of the tribunal as the external reviewer of decisions made by insurers under the MAI Act in claims for defined benefits is to determine whether the reviewable decision has been made lawfully or whether it is affected by a sufficiently serious error of law or fact to warrant setting it aside. In other words, the Tribunal is concerned with the lawfulness of the decision and not its merits. Amongst other factors, the Tribunal considers to determine the lawfulness of a decision is whether the rules of procedural fairness were observed in reaching the decision. We set out below our reasons for our findings that the second internal review decision is affected by errors of law.
Do the MAI Act and Guidelines impose an onus of proof on the applicant?
[13] [2021] ACAT 100 at [50] and [2022] ACAT 24 at [16]
The Motor Accident Injuries scheme, which is primarily set out in the MAI Act and the MAI Guidelines made by the MAI Commission, is a statutory scheme which prescribes that both the decision‑maker and the applicant have a duty to act in good faith to resolve disputes justly and promptly.[14]
[14] Subsection 20(2) and 20(3) of the MAI Act
The insurer, as the statutory decision‑maker is required to assess the available information and inform the applicant if further information or clarification is required.[15] When making an internal review decision the insurer is also required to appoint a reviewer who is trained in conducting reviews and who was not involved in the decision subject to review.[16] The internal review decision‑maker is required to engage with the applicant in a way that is meaningful to the applicant given their circumstances to reach a decision which best supports the main objects of the MAI Act. The objects include the early, quick, cost-effective, and just resolution of disputes.[17]
[15] MAI Guidelines at [4.2.5]
[16] MAI Guidelines at [4.3]
[17] Section 6 of the MAI Act
The applicant is required to give the insurer the information an insurer requests and reasonably requires for the internal review as per sections 21 and 190 MAI Act. The MAI Guidelines also states:
An internal review should be conducted as informally as possible, having regard to the insurer’s own procedures, including procedures for documentary evidence and inquiries into matters relevant to the issues under review.[18]
[18] MAI Guidelines at [4.4.2]
Contrary to the assertion made by the decision-maker in the reviewable decision, the Act and the Guidelines do not impose an onus of proof on the applicant to establish liability for entitlement to defined benefits. Rather, the MAI legislative scheme sets up a collaborative and consultative process of gathering information which the insurer can use to satisfy themselves whether the applicant is entitled to defined benefits under section 38 of the MAI Act.
The Full Federal Court considered the basis upon which a decision on liability is made under a statutory scheme in the matter of Beezley v Repatriation Commission:
If an applicant does not provide evidence and information sufficient to meet the statutory requirements, an applicant is unlikely to have the statutory power exercised in her or his favour. And unless and until a decision-maker is satisfied or persuaded that the requirements are met, then no decision to exercise the power in favour of an applicant arises. In that sense, as a practical matter, it is not incorrect to say that a person “must satisfy” the requirements in the statute. To say that is not to impose an onus of proof on an applicant, but rather to recognise the operation of the legislative scheme under which a person seeks a benefit or interest., see generally McDonald v Director-General of Social Security [1984] FCA 59, 1 FCR 354 at 356-357 and 358 (per Woodward J)…[19]
[19] Beezley v Repartiation Commission (2015)at AAR23,150 ALD 11 at para [68]
In this case, the respondent initially decided that the applicant had satisfied the requirements of the MAI scheme and it accepted the applicant’s claim on 8 September 2020. The respondent then made a later decision on 3 December 2021 rejecting liability. The question arises whether in these circumstances, as a matter of practicality, it was the applicant or the respondent who had the primary responsibility for adducing evidence in relation to liability.
In McDonald v Director-General of Social Security, which was a matter concerning reversal of liability for benefits under the Commonwealth Social Security Act 1947 Woodward J said:
It is true that facts may be peculiarly within the knowledge of a party to an issue, and a failure by that party to produce evidence as to those facts may lead to an unfavourable inference being drawn—but it is not helpful to categorise this common sense approach to evidence as an example of an evidential onus of proof. The same may be said of a case where a good deal of evidence pointing in one direction is before the Tribunal, and any intelligent observer could see that unless contrary material comes to light that is the way the decision is likely to go. Putting such case to one side there can be no evidential onus of proof in proceedings before the AAT unless the relevant legislation provides for it, and in the present case the Social Security Act 1947 (Cth) does not.[20]
[20] McDonald v Director-General of Social Security [1984] FCA 59; 1 FCR 354, page 359
The MAI legislation does not provide for an evidential onus either.
The respondent’s basis for denying liability in the first internal review decision was the conclusion reached by the respondent, upon review of the evidence, that there was no medical evidence supporting that any of the applicant’s injuries were caused by the motor accident. On external review, the tribunal found that conclusion was not supported by any medical evidence. The Tribunal directed that the respondent obtain from the applicant’s medical practitioner some medical evidence addressing the issue of causation. In these circumstances, we consider that it was the respondent who held the primary responsibility of obtaining medical evidence to review the decision it made on 3 December 2020 reversing the decision on liability. The applicant had a responsibility to provide relevant information the respondent requested to facilitate that review.
Was it necessary to make the second internal review decision by 4 November 2021?
The tribunal decision which led to the second internal review by the respondent held that the first internal review decision, that is the decision which was under review in MAI 1/2021, was affected by an error of fact or law because the internal review decision-maker, in the absence of any medical evidence to support the conclusion, concluded that there was no evidence of any injury caused by the accident. It was held further that the conclusion was reached without consulting the applicant. The tribunal ordered that the matter be remitted to the respondent for a further internal review to be undertaken as if the request for internal review was received by the respondent the day after the date of the order which was 20 October 2021. The tribunal directed that the respondent comply with the MAI Act and Guidelines when undertaking the reconsideration and that the respondent ask the applicant’s medical practitioner whether any injury was likely to have been sustained because of the motor accident rather than the cardiac arrest. The tribunal noted that the respondent could consider the report of Dr Gibson in the reconsideration process and that the applicant could comment on that report and submit any further evidence he considered appropriate.
Section 191 of the MAI Act provides that an internal review decision must be made within ten business days of receiving the application of internal review, unless the MAI Guidelines provide for circumstances in which the 10 day time limit can be extended. The MAI Guidelines at paragraph 5.2 provide that an extension of ten business days applies if the insurer has requested additional information or documents from an applicant. The time extension begins on the day the insurer receives the requested information. In other words, once the insurer requests information from the applicant the time limit imposed by section 191 is suspended until the information requested by the insurer is provided by the applicant.
Consistent with the Tribunal’s decision of 20 October 2021, upon receiving the decision, the respondent wrote to Dr Rozario on 22 October 2021 to ask for a report. The respondent provided Dr Rozario with the biomechanical report of Dr Gibson, and asked for his opinion as to whether in light of that report the applicant suffered any physical injuries which were a direct result of the motor accident rather than the cardiac arrest. Dr Rozario replied on 27 October 2021 to the effect that he was unable to answer the questions asked because that was beyond the scope of his practice. He suggested that the biomechanical report be sent to either a specialist in emergency medicine or a forensic medical officer and an opinion be obtained from them.[21] The letter from Dr Rozario was served on the applicant’s solicitor on 29 October 2021.
[21] Request for report from Dr Rozario (respondent’s submission number R28) and Dr Rozario’s medical report (respondent’s submission number R29)
On 27 October 2021, the respondent wrote to the applicant’s solicitor inviting him to submit to Ms Amanda Wright, internal reviewer, any further information or documents he wished to have considered in the internal review. Ms Wright was the reviewer who issued the first internal review decision. Given that she had already made a decision on the issues under review, and that decision was set aside, it would appear to be inappropriate for her to be involved in the further internal review of the decision.
Perhaps in recognition of this, on 1 November 2021 at 3:44pm the respondent wrote to the applicant’s solicitor again. This time the email was sent by Mr Shaun Thistlethwaite, internal reviewer. Mr Thistlethwaite requested what was described as additional information, to narrow the issues in dispute. In effect the six questions posed by Mr Thistlethwaite in the correspondence sought a combination of concessions from the applicant as well as submissions on legal and factual issues in dispute. To the extent that the applicant was asked to provide his views on the issues which the internal reviewer was concerned with, it can be said that the respondent had sought additional information from the applicant before making the decision. The applicant could have included documentary evidence in his reply in support of the submissions he was asked to provide. In any event, one would expect that the applicant’s submissions, whether they were supported by new documents or otherwise, would contain information which is not only relevant but proper for the decision‑maker to have regard to before issuing the decision. Mr Thistlethwaite noted in the correspondence that, pursuant to clause 5.2 of the MAI Guidelines, an extension of ten days would come into effect from when the requested information was provided. Mr Thistlethwaite also asked the applicant’s solicitor to confirm that the extension was appropriate.
MAI Guideline 5.2 does not impose any obligation on the insurer to obtain the applicant’s consent for the extension of time to come into effect. Mr Thistlethwaite had correctly asserted in his correspondence with the applicant’s lawyers that MAI Guideline 5.2 gave the respondent ten working days from when the applicant provided the information he was requested to provide to the respondent. In our view, it was unnecessary for him to ask for the applicant’s consent to the extension of time.
Curiously, the next day, that is on 2 November 2021, the respondent wrote to the applicant again, this time not to his solicitor’s address but to him directly, denying liability for defined benefits. The letter was signed by Ms Janelle Wilson, a claims adviser and invited the applicant to apply for internal review of the decision if he disagreed with it. Ms Wilson referred to the first internal review decision of 3 December 2021 and confirmed that liability was denied again. The reason for denial of liability was that the respondent considered that the applicant was not a person injured in a motor accident as his injuries were not as a result of a motor accident. The decision relied on the biomechanical report of Dr Gibson and the letter from Dr Rozario dated 27 October 2021. No mention was made of the internal review process of the decision of 3 December 2021 which Mr Thistlethwaite was undertaking at the time.[22]
[22] GIO Defined Benefits Rejection Notice (Respondent’s submission number R32)
On 2 November 2021, the internal reviewer and the applicant’s solicitor had a telephone discussion, the contents of which are not before the Tribunal.
The following day, that is on 3 November, Mr Thistlethwaite wrote to the applicant’s solicitor again about the timeframe within which the internal review decision had to be delivered. The email read in part as follows:
An internal review decision is due within 10 business days of the date of request. Accordingly, our decision is due on or before 4 November 2021. As I have requested additional information from the Claimant, the Guidelines allow an extension for the completion of the internal review from the date the additional information is received. However, the Guidelines are silent on whether the extension applies to the provision of the additional information.”[23]
[23] GIO email correspondence to solicitors (Respondent’s submission number R33)
Mr Thistlethwaite then asked the applicant’s solicitor to advise by 12:00pm 4 November 2021 if the claimant agreed to an extension of time for completing the internal review, failing which the internal review decision would be made by 5:00pm on 4 November in order to comply with the tribunal’s orders.[24]
[24] GIO email correspondence to solicitors (Respondent’s submission number R33)
Mr Ehsan, the applicant’s solicitor, responded to the email from Mr Thistlethwaite at 4:55pm on 4 November 2021. He asked whether the email of 3 November 2021 had been superseded by the denial of liability letter of 2 November 2021. Mr Thistlethwaite responded on 5 November 2021 at 7:24am to say that the determination – internal review and statement of reasons dated 4 November 2021 should be taken as being GIO’s position on liability on the defined benefits claim.[25] The determination made by Mr Thistlethwaite on 4 November 2021, that is the second internal review decision, was posted to the applicant’s street address under cover a letter wrongly dated 18 September 2020. The application for external review states that the applicant received the decision on 8 November 2021.
[25] MAI Documents R33
The decision of the tribunal did not impose an obligation on the respondent to complete the internal review by 4 November 2021. The decision merely stated that in conducting the review the respondent was to comply with the MAI Act and Guidelines.
MAI Guideline 5.2 clearly allowed the respondent an extension of time within which to make the decision. The Guideline provides that the extension of time begins from the day the applicant provides the information. Though the Guideline does not expressly say so, it can be reasonably inferred from its content that once the review decision-maker seeks further information from the applicant, time for making the decision is suspended until the applicant provides that information. The Guidelines are silent about the length of time the applicant has to provide the requested information. This might be intentional as some information might take the applicant longer to obtain and provide than other information. However, though it would have been sensible for the parties to discuss and agree upon a reasonable timeframe within which the information should be provided, the respondent was not obliged to obtain the applicant’s consent for an extension of time if they reasonably required the applicant to provide information relevant to the review. The effect of Guideline 5.2 is that the review of the decision does not have to be finalised until the applicant provides the information they were asked to provide. If the applicant fails to provide the information or unduly delays in supplying it, the decision they wish to have reviewed stands until they supply the information, and the review decision can be made.
Was the applicant provided with a reasonable opportunity to provide information and to engage in consultation about the issues in dispute?
By erroneously assuming that the reviewable decision had to be completed by 4 November 2021, the respondent did not give the applicant a reasonable opportunity to provide the information requested or any other documents/submissions, he may have wished to provide for consideration in the internal review process.
It is well established that in the absence of a clear contrary legislative intension, administrative decision‑makers must afford procedural fairness to those affected by their decisions.[26] The MAI Act does not contain any contrary intention. We consider that procedural fairness is an integral requirement of decision making under the Act. As submitted by the applicant’s counsel, procedural fairness demands that not only must an applicant be given an opportunity to provide a response to material the decision-maker proposes to take into account, but that opportunity must be adequate.[27] This is a basic requirement of a fair hearing before a decision is made.
[26] See Immigration and Border Protection v WZZARH (2015) 256 CLR 326 at [30]
[27] See Jeray v Blue Mountains City Council No2 [2010] NSWCA 367 at [6]
Counsel for the respondent submitted that all the applicant’s solicitor had to do was to consent to the extension on time for making the decision proposed by the internal reviewer and that would have provided his client with time to provide information, submissions, and further evidence if he so wished. In effect, the respondent says that the lack of opportunity to provide information was brought about by the failure of the applicant’s solicitor to respond to the internal reviewer’s request. We disagree.
As noted above there was no need for the applicant to provide consent for an extension of time within which the decision had to be made. Further, it is hardly surprising that the correspondence dated 2 November 2021 from the respondent to the applicant denying liability for defined benefits, caused the applicant’s solicitor to think that the internal review had been finalised by 2 November 2021. When he did respond on 4 November 2022 it was to inquire whether the request to agree to a timetable for provision of information had been superseded by the decision denying liability.[28]
[28] Mr Ehsan’s email to Mr Thistlethwaite dated 3 November in MAI doc R33
We find that the applicant was denied procedural fairness in the decision-making process because he had no reasonable opportunity to make submissions or provide information in support of his claim before the decision was made.
Was the decision supported by medical or other evidence?
As suggested by the tribunal’s decision on 20 October 2021, the respondent sought an opinion from Dr Rozario about the cause of the applicant’s injuries. Dr Rozario said that he had provided his earlier reports based on the discharge diagnosis report from the hospital which he received on 8 July 2020. He was unable to comment on whether any injury was sustained directly as a result of the motor accident and not the cardiac arrest. He suggested that the photographs of the scene of the accident and the biomechanical report be sent to an emergency or forensic physician for an opinion. Effectively, this meant that Dr Rozario’s letter did not provide any medical evidence which clarified whether any of the applicant’s injuries were caused by the accident.
Following the suggestion made by Dr Rozario in his letter of 27 October 2021, the respondent sought an opinion on the causation of the applicant’s injuries from Dr Luke Lawton an emergency physician. Obtaining this report also paid heed to the comment made by the tribunal in the MAI 1/2021 decision that the respondent should obtain some medical evidence on causation before reconsidering the decision on liability. However, instead of asking the applicant to consent to an extension of time for the decision to be made until the report requested by the respondent from Dr Lawton became available, the respondent made the decision without waiting for the report. We note at this juncture that the consent of the claimant in extending time would have been necessary because MAI Guideline 5.2 at the time the decision was made did not specify from when the extension of five business days starts in circumstances where the decision-maker needs new information obtained by the insurer. This contrasts with the circumstance where information is requested from and supplied by the applicant when the extension of time is said to start from when the insurer receives the information. We note that Guideline 5.2 has since been amended and it now provides that the parties can agree to an extension as they see necessary. If there is no agreement, an extension of time does not apply.
In effect, the second review decision was made without regard to any medical opinion on causation, as was the first review decision which was set aside by the Tribunal. The internal decision-maker acknowledged that there was no evidence available to him which dealt with the causation of the injuries to the applicant’s spleen, ribs and knee. In the absence of any such evidence, he concluded that it was plausible the injuries could have been caused in the process of removing the applicant from the motor vehicle and thus not caused by the motor accident. Making the decision on an assumption rather than evidence constitutes an error of fact in our view.
The internal reviewer also relied on Dr Gibson’s biomechanical report in reaching his decision as he was entitled to do. Though an attempt was made to give the applicant an opportunity to provide comments/information on Dr Gibson’s report and to comment on various legal issues the decision-maker was considering, the time allowed for that information to be provided was unreasonably short due to the misunderstanding about the time available to finalise the review decision.
In our view, the correct process for making the decision would have been to ask the applicant to agree to wait until the report from the emergency physician was available. The content of that report ought to have been considered by the decision‑maker along with Dr Gibson’s biomechanical report. Before the review process was completed, the applicant ought to have been given a reasonable opportunity to comment on both and to provide to the decision‑maker any other evidence he considered relevant to the issues the reports raised.
The decision is affected by errors of fact and law because it was made on an assumption, rather than on any medical evidence, about the causation of the applicant’s injuries. Further, the rules of procedural fairness which demand that the applicant be given a reasonable opportunity to provide any comment, information, or evidence relevant to the decision under review he considers appropriate, were not observed. The decision must be set aside.
We consider that the issue of causation of the applicant’s injuries must be based on medical evidence. There is no medical evidence before us in this application to enable us to substitute the decision with an alternative decision.
For the reasons outlined below, we do not consider that the errors which affect the second reviewable decision can be remedied by the respondent’s further decision on liability made on 6 December 2021, which is the subject of application MAI 1/2022.
The second internal review decision which is the subject of application MAI 17/2021 is set aside and remitted to the respondent for further reconsideration pursuant to section 197(1)(c)(ii) of the MAI Act as if it were an internal review of the decision made by the respondent reversing acceptance of liability on 3 December 2020
We make the following directions in relation to the reconsideration of the decision:
(a)The respondent is to comply with the MAI Act and Guidelines when undertaking the reconsideration, as if the reconsideration were internal review under section 191 of the MAI Act. The review is to be undertaken by the respondent as if the request for review was received on the day after the date of these orders.
(b)The time of conducting the reconsideration will commence on the day after the date of these orders.
(c)The claimant to provide the information requested by the insurer in the email dated 1 November 2021[29] as well as any information or submission he wishes to make to the internal reviewer in relation to Dr Lawton’s report, or any other relevant issue, within 10 business days of the day after the date of these orders, or within such time as is agreed between the claimant and the insurer.
(d)The insurer must conduct the internal review in accordance with the MAI Act and Guidelines. To avoid any doubt, we note that the insurer may request the claimant to provide any further information or evidence it considers reasonably relevant to the reconsideration.
[29] MAI docs R1
The respondent is to comply with the MAI Act and Guidelines when undertaking the reconsideration, as if the reconsideration were an internal review under section 191 of the MAI Act. The review is to be undertaken by the respondent as if the request for review was received on the day after the date of these orders.
MAI 1/2022
In order to avoid confusion in this application which was initiated by the insurer, we refer to the applicant as the insurer and the respondent Mr Williams as the claimant.
Following the finalisation of the second review decision on 4 November 2021, the insurer received the medico-legal report they commissioned from Dr Luke Lawton, a consultant in emergency medicine, on 24 November 2021. Dr Lawton concluded that none of the claimant’s injuries were caused by the motor accident.
On 6 December 2021, the insurer issued a further decision rejecting liability for the application for defined benefits. This decision was made by Ms Janelle Wilson who is described in the letter advising of the decision as a claims advisor. Ms Wilson had also made the second internal review decision of 2 November 2021 which also denied liability for defined benefits. That was the decision, which was sent to the claimant at his home address, while Mr Thistlethwaite was undertaking the second internal review.
She advised that having reviewed the liability decision after receiving Dr Lawton’s report, she confirmed rejection of liability. She invited the claimant to apply for internal review of the decision if he disagreed with it.
On the same date that Ms Wilson issued her decision, that is 6 December 2021, the claimant had applied to ACAT for external review of the second internal review decision.
The Application for Review in this matter (MAI 1/2022) is rather unusual in that the insurer has applied to have their own decision of 6 December 2021 reviewed. The orders sought by the insurer are in effect an affirmation of the reviewable decision, that the claimant was not injured in a motor accident, that his injuries are not the result of a motor accident and that he is not entitled to payment of defined benefits under the MAI Act.
Mr Crowe, counsel for the insurer, has submitted that curious though it is for his client to have applied to have its own decision reviewed, it has done so in order to bring the most recent decision, that is the one dated 6 December 2021, before the Tribunal to be reviewed along with the decision in matter MAI 17/2021. He submitted further that the legislation contemplates this occurring because it gives the insurer standing to make an application for review and the decision is listed in Schedule 1 to the MAI Act as a decision which can be subject to external review by ACAT.
He submitted further that in the event that the Tribunal was minded to set aside his client’s decision rejecting liability for defined benefits in Application MAI 17/2021, his client seeks an order that the decision made on 6 December 2021 which is the subject of this application be affirmed. Alternatively, if it is set aside the Tribunal should substitute its own decision. He submitted that Dr Lawton’s report provides medical evidence which supports a decision rejecting liability. The decision is also supported by the evidence relied upon in the earlier decisions which rejected liability. Mr Crowe submitted that the claimant had not sought internal review of the 6 December 2021 decision nor has he articulated what evidence or submissions he proposes to make in rebuttal of the information and evidence the insurer relies upon. Accordingly, he submits it would be more efficient and just, in the event that Tribunal set aside the decision, for the Tribunal to substitute its own decision rather than send the decision back to the insurer to be reconsidered yet again.
Counsel for the claimant submitted that the insurer did not have authority to make the decision of 6 December 2021 because they had already made the decision on liability on 4 November 2021 and making continuous decisions denying liability would have the effect of usurping the earlier decision and making a mockery of the internal review process prescribed by the MAI Act. He submitted further that his client was denied procedural fairness in the making of this decision because he was not told in advance in any detail what Dr Lawton would report on, and he was not given an opportunity to respond to Dr Lawton’s report before a decision was made which relied on Dr Lawton’s report. He submitted further that Dr Lawton’s report was written without the doctor speaking with the claimant or the witnesses who attended him immediately following the motor accident. Dr Lawton relied on documents for information to prepare his report and this makes the report unreliable.
The claimant’s position is that the decision of 6 December 2021 should be set aside and remitted to the insurer again for further reconsideration. The claimant did not take issue with the statutory interpretation question of whether the MAI Act allows the insurer to seek review of their own decision.
Does the MAI Act provide that the insurer can apply for ACAT review of own decision?
Section 192 of the MAI Act defines ACAT reviewable decision to mean:
a decision of an insurer
(a) mentioned in schedule 1, part1.2, column 3 under a provision of this Act mentioned in column 2 in relation to the decision; or(b) prescribed by regulation
Schedule 1 part 1.2 item 3 lists a decision to reject liability for defined benefits because the applicant is not a person mentioned in section 55(2) in column 3. Column 2 lists section 65(1), being the section under which liability can be rejected by an insurer. This is the reason the insurer has rejected liability in this case and therefore the decision under review is an ACAT reviewable decision as defined by section 192 (a).
No regulation has been enacted in relation to ACAT reviewable decisions. Section 192(b) is therefore not relevant.
Section 185(1) defines the term ‘insurer’ in Part 2.10 of the MAI Act, which deals with defined benefits dispute resolution, to mean “the insurer of a motor vehicle involved in a motor accident to which the application relates.”
Section 185(2) states:
In this section: Insurer, of a motor vehicle – see section 34(2).
Section 34(2) states:
(2) In this section:
insurer, of a motor vehicle, means—
(a) for an insured motor vehicle—the MAI insurer for the motor vehicle; or
(b) for a motor vehicle insured by an interstate insurer—the interstate insurer; or
NoteInterstate insurer—see the dictionary.
(c) for an uninsured motor vehicle—the nominal defendant; or(d) for an unidentified motor vehicle—the nominal defendant.
It is of note that pursuant to section 34(2), ‘an insurer of a motor vehicle’ can be someone other than the insurer of a motor vehicle involved in the motor accident.
Section 193(1) lists the people who may apply to the ACAT for external review of an ACAT reviewable decision (reviewable decision) on a question of law or fact. The insurer of a motor vehicle involved in a motor accident is listed at 193(1)(e). The insurer in this matter is such a person. In fact, as the subject motor accident in this matter was a single vehicle accident and the car involved was an ACT registered and identified vehicle, the insurer is the only insurer of any motor vehicle involved in the accident. Therefore, ostensibly section 193(1) of the MAI Act permits the insurer to apply for external review of its decision made on 6 December 2021 on a question of law or fact.
In this application, the insurer has asked for their own decision to be affirmed. In effect their position is that there is no question of fact or law in the decision which needs to be reviewed because of any errors made.
Further, we are somewhat troubled as to whether the natural meaning of the words of section 193(1)(e) express the true intention of the legislature that is whether the legislature intended to give insurers the right to apply to have their own decisions to be reviewed. This is because words used in other sections of the MAI suggest otherwise. In particular, the wording of sections 195 and 193(2 of the MAI Act.)
Section 195 of the MAI Act which provides as follows:
195 External review—ACAT to notify insurer etc
As soon as practicable after receiving an application for external review of an ACAT reviewable decision, the ACAT must give written notice of the application to—
(a) if the applicant is an applicant for defined benefits—the insurer who made the decision; or
(b) if the applicant is the insurer of a motor vehicle involved in the motor accident—
(i) the applicant for defined benefits; and(ii) the insurer who made the decision.
Section 195 is premised on the supposition that where the applicant is the insurer of a motor vehicle involved in the motor accident, another insurer must have made the reviewable decision and therefore the decision‑maker insurer must be given the application for review. It makes no sense for ACAT to be required to give an application for review to an insurer who made the decision if that insurer is the applicant who made the application.
This raises the question of whether the plain meaning of section 193(1)(e) which lists the insurer of a motor vehicle involved in the motor accident as a person who may apply to ACAT for external review, should be read down to mean the insurer for a motor vehicle involved in the motor accident may apply for external review when the ACAT reviewable decision was made by another insurer.
Sections 40 and 70 of the MAI Act[30] provide for circumstances where the insurer of a motor vehicle involved in the motor accident and the insurer who makes the decision on defined benefits payable to a claimant are not the same. Under those sections, the cost of the payable benefits is recoverable by the insurer who makes the decision from the insurer of the motor vehicle involved in the motor accident. It is possible that the legislators proposed only to give standing to the insurer of the motor vehicle involved in the motor accident to apply for external review of a decision made by the insurer who is the decision‑maker in the claim. However, the words used in section 193(1)(e), unlike the words in section 195, do not distinguish between the insurer who made the decision and the insurer of a motor vehicle involved in the motor accident. The definitions of ‘insurer’ in sections 185 and 34(2) of the MAI Act do not provide any such distinction either.
[30] we note that under section 70 disputes between insurers are resolved pursuant to the provisions made in the insurance industry deed which refer to arbitration between the parties and not an application to ACAT
Unfortunately, the MAI Bill is also not helpful in relation to the issue. Clause 190, which commented on what became section 193 in the MAI Act, has no commentary on sub‑section 193(1)(e).
Section 193(2) of the MAI Act provides the time limit within which an applicant must file an application for external review. It states:
(2) An application for external review of an ACAT reviewable decision must be made within—
(a)28 days after the day the applicant for external review is given an internal review notice in relation to the ACAT reviewable decision; or
(b) if the applicant for external review is not given an internal review notice in relation to the ACAT reviewable decision—28 days after the applicant becomes aware of the decision; or
(c)if a regulation prescribes a different time within which to make an application—the prescribed time.
As is the case with the wording of section 195, the wording in section 193(2) is incongruous in circumstances where the applicant is the insurer who made the decision to be externally reviewed. If the applicant is the insurer who made the decision, they would not be given the decision they made. Further, if they make the decision, it makes no sense to impose a time limit from the time they become aware of it.
Though the wording of sections 193(2) and 195 suggests that the legislature’s intension in section 193(1) may have been to allow insurers to be able to apply for external review of a decision which affects their interests, rather than to seek review of their own decision, we find the language of section 193(1)(e) rather intractable. It clearly states that an insurer for a motor vehicle involved in the motor accident can apply to ACAT for external review without any qualification.
Reading statutory provisions, as if they contain additional words so that the provision better fits within the context of the Act as a whole, involves a judgment of degree. In this case, we do not consider that the inconsistency presented by the procedural requirement prescribed in section 195, and the inconsistent effect between the words in section 193(2) and the words of section 193(1)(e), justifies the Tribunal reading into the section words which are not there. This is especially so in circumstances where Mr Williams has not taken issue with the insurer’s standing as an applicant. We, therefore, propose to interpret the section literally and determine that the insurer has standing to make the application for review of its own decision even though the wording of other sections of the legislation suggests that perhaps the legislature did not intend to allow insurers to apply for external review of their own decisions. If, as we suspect, the intention of the legislature was otherwise. it is up to the legislature to amend section 193 (1)(e) to clarify that intention.
Did the insurer have authority to make the decision on liability on 6 December 2021.
Section 68 of the MAI Act provides that an insurer may make a later decision rejecting liability after initially accepting liability or conversely, accepting liability after initially rejecting it. However, there is no provision in the Act to do what the insurer has done in this instance, that is to revisit decisions rejecting liability twice on 2 November and 6 December 2021 while the initial decision which rejected liability was under review, on each occasion purporting to perfect the decision by relying on new evidence.
Once the claimant was advised of the outcome of the internal review decision about liability for defined benefits on 5 November 2021 the decision on that issue was final and he was entitled to exercise his external review rights. If a decision is final, it can only be re-made if it is made in jurisdictional error as held in Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597 (Bhardwaj). In this matter, the insurer did not purport to re-make the decision on the basis it contained any jurisdictional error or any error at all. On the contrary the decision of 6 December 2021 affirms the insurer’s previous decisions, by relying on new evidence obtained by the insurer.
In Sloane v Minister for Immigration, Local Government and Ethnic Affairs, referring to the legislation relevant to that matter French J held that:
…the detailed provisions of s115 in relation to the review of decisions tend to suggest a legislative purpose of codifying and confining the bases upon which decisions made under the Act or the Regulations are able to be reviewed.[31]
[31] (1992) 37 FCR 429
Similarly in this case, the MAI Act prescribes in detail how and in what circumstances decisions can be reviewed both internally by the insurer and externally by ACAT. As submitted by counsel for the applicant, revising a decision outside the circumstances prescribed by the Act would make a mockery of the review of decisions system set out in the MAI Act.
The claimant is entitled to finality in a decision made which impacts his legal rights. He needs to have certainty as to the effect of the decision so that he can, if he so wishes, exercise his review rights. In Bhardwaj, Gleeson J said:
The requirements of good administration, and the need for people affected directly or indirectly by decisions to know where they stand, mean that finality is a powerful consideration.[32]
[32] (2002) 209 CLR 597 at [603]
The principle of finality was affirmed by the Victorian Court of Appeal in the case of Kabourakis v The Medical Practitioners Board of Victoria:
The requirements of good administration and the need for people affected directly or indirectly by decisions to know where they stand mean that finality is the paramount consideration and the statutory scheme, including the conferring and limitation of right of review on appeal, will be seen to evince an intention inconsistent with capacity for self-correction of non-jurisdictional error. In the bulk of cases, logic and common sense so much incline in favour of finality as to permit of no other conclusion.[33]
[33] [2006] VSCA 301 per Warren CJ, Chernov and Nettle JJA at [48]
In this matter, the claimant had lodged an application for external review of the previous version of the internal review decision on the same day as the 6 December 2021 decision. Making a further version of the decision is oppressive to the applicant who lodged his application with the tribunal on the basis of the version he was advised by the insurer was externally reviewable by the tribunal.
Once Mr Thistlethwaite informed the applicant on 5 November 2021 that the internal review decision about liability for defined benefits was finalised,[34] the power of the insurer to make a further decision on liability was spent.[35] The insurer is not permitted to attempt to perfect its decision to deny liability by re-making the same decision repeatedly. However, this is not to say that the insurer is not permitted to consider Dr Lawton’s report.
[34] MAI Documents R33
[35] See Minister for Immigration Local Government and Ethic Affairs v Kurtovic (1990) 21 FLR 194 at [211] where Gummow J said, “…administrative decisions once given effect by communication to the affected party, are irrevocable on the basis that the power is spent.”
As we alluded to in the decision in Application MAI 17/2021, the common-sense way for dealing with Dr Lawton’s report in our view would have been for the parties to agree to extend the time for making the second internal review decision until Dr Lawton’s report was available and the claimant had an opportunity to consider and respond to it. The claimant’s consent to extend time would have been necessary because MAI Guideline 5.2 at the time the report was requested did not specify from when the extension of five business days starts, in circumstances where the insurer considers new information obtained by the insurer. This contrasts with the circumstance where information is requested from and supplied by the claimant when the extension of time is said to start from when the insurer receives the information.
Given that the second internal review decision had been made before Dr Lawton’s report was available, instead of making yet another decision on the issue of liability, once the claimant sought ACAT’s review of that decision the insurer could have conceded that that decision should be set aside, and the matter remitted for further internal review in light of the medical evidence provided by Dr Lawton. In those circumstances, the claimant could then have been given an opportunity to make submissions and provide alternative medical evidence in response to Dr Lawton’s report if he so wished.
Instead, once Dr Lawton’s report became available the insurer purported to make the decision denying liability once again without any communication with the claimant. As we stated above, we do not consider that this was permissible under the provisions of the MAI Act. However, even if the respondent was permitted to revisit its decision to add further evidence in support of the rejection of liability, the decision would still be affected by an error of law. This is because the respondent made the decision on 6 December 2021 relying on Dr Lawton’s report without providing it to the applicant and giving him an opportunity to comment on it and to advise whether he had any alternative medical evidence he wished to submit in response to the report. The applicant was denied procedural fairness even on the third occasion the decision denying liability was made.
For the reasons set out above, the decision is set aside.
We do not consider that this Tribunal has sufficient information to make a substitute decision. It is correct, as submitted by counsel for the insurer that the only available expert evidence, that is Dr Lawton’s medical report and Dr Gibson’s biomechanical report support rejection of liability on the basis that the claimant has not suffered any injury as a result of the impact of the motor accident. It is also correct that the claimant has not articulated what evidence or information, if any, he proposes to submit in response to these reports. Ultimately, it may be that the decision to reject liability is correct.
However, given we have decided that the insurer was not authorised to re‑make the decision on 6 December 2021 and that the second internal review decision was made before any medical evidence was available, procedural fairness requires that the applicant be given the opportunity to make submissions and provide any information he considers relevant to the opinion provided by Dr Lawton as well as the matters raised by Mr Thistlethwaite in his email of 1 November 2021 addressed to the claimant’s solicitors. The claimant was not required or indeed permitted to provide information to the Tribunal which was not available to the decision‑makers of either of the reviewable decisions because section 197(2) of the MAI Act provides that subject to section 197(3) ACAT must only consider the information that was available to the decision‑maker when the decision was made. As submitted by counsel for Mr Williams, the claimant has been deprived of the opportunity to deal with some aspects of the case, but the ACAT review is not a merits review process, and he cannot deal with those aspects of the case in this forum.
The decision on liability to be reconsidered is the second internal review decision which is the subject of Application MAI 17/21. Having found that the insurer was not authorised to make the decision under review in this matter there is no decision to remit.
………………………………..
Presidential Member H Robinson
For and on behalf of the Tribunal
| Date(s) of hearing: | 17 June 2022 |
| Counsel for the Applicant: | B Jones |
| Solicitors for the Applicant: | Mr H Eshan, Maliganis Edwards Johnson |
| Counsel for the Respondent: | Mr D Crowe |
| Solicitors for the Respondent: | Mr L Blayney |
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