Williams v GIO (Motor Accident Injuries) - [2022] ACAT 90

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

Grounds of appeal

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

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

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

Consideration

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

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

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Details

Case: [2022] ACAT 90
Decision Date: 26 October 2022

CaseChat Overview and Summary

Williams brought an application against GIO pursuant to section 193 of the Motor Accident Injuries Act 2019 (Act), seeking review of an insurer’s decision. The applicant sought an order for costs in accordance with section 198 of the Act and Regulation 6 of the Motor Accident Injuries (ACAT Costs Orders) Regulation 2020 (Regulation) following a successful application. The applicant sought a ruling that section 198 of the Act and the Regulation enable the Tribunal to award a successful applicant unlimited costs to be agreed or assessed. The insurer opposed the application and submitted that the Tribunal has no jurisdiction to award costs beyond those set out in section 198 of the Act and the Regulation.

The Tribunal held that the relevant provisions of the Act and Regulation set out a maximum quantum of costs which can be awarded to a successful applicant and that the Tribunal had no jurisdiction to award costs beyond that maximum. The Tribunal found that section 198 of the Act and Regulation did not enable the Tribunal to award a successful applicant unlimited costs to be agreed or assessed.

The Tribunal set aside the reviewable decision and remitted the matter to the insurer for reconsideration in accordance with the Act and the Motor Accident Injuries Guidelines (MAI Guidelines). The Tribunal ordered that the insurer must pay the applicant the sum of $2,494 by 15 November 2022. The Tribunal also ordered that the insurer and the applicant must each lodge an itemised list of costs they have incurred and any submissions they wish to make on the issue of costs by 23 November 2022. The Tribunal further ordered that the insurer and the applicant must each advise the Tribunal and the other party of any submissions they wish to make in relation to the application for costs and the other party’s list of costs, or alternatively advise the Tribunal and the other party that they do not propose to make any submissions by 2 December 2022.

Orders

Orders of the court

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.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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