Wright v Insurance Australia Limited t/as NRMA Insurance

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Wright v Insurance Australia Limited t/as NRMA Insurance [2024] NSWPIC 268
CLAIMANT:	Vaoatea Wright
INSURER:	Insurance Australia Limited t/as NRMA Insurance
SENIOR MEMBER:	Brett Williams
DATE OF DECISION:	23 May 2024
CATCHWORDS:	MOTOR ACCIDENTS - Motor Accident Injuries Act 2017 (MAI Act); miscellaneous claims assessment; claimant injured in an accident at his workplace as a result of a collision between two uninsured forklifts; where accident did not occur on a “road” as defined; claim made on Nominal Defendant; whether section 1.10A applies to the claim; where claim made prior to amendments to the MAI Act by the Motor Accident Injuries Amendment Act 2022 to include section 1.10A; claims for compensation and damages made under the Workers Compensation Act 1987; damages claim settled; worker’s compensation rights extinguished; whether section 30 of the Interpretation Act 1987 applies; whether order for costs should be made in accordance with section 8.10(4)(b); Kraljevich v Lakeview and Star Limited, Maxwell v Murphy, Australian Education Union v General Manager of Fair Work Australia, ADCO Constructions Pty Ltd v Goudappel, Australian Education Union v General Manager of Fair Work Australia, QBE Insurance (Australia) Limited v Abberton, Patman v Fletcher’s Fotographics Pty Ltd, Project Blue Sky Inc v Australian Broadcasting Authority, Croc's Franchising Pty Ltd v Alamdo Holdings Pty Ltd, AAI Ltd trading as GIO v Moon applied; Held – a contrary intention sufficient to displace section 30 of the Interpretation Act appears clearly from the text of schedule 4 part 7 section 14; the provision is designed to operate in a manner which is inconsistent with the maintenance of the existing right asserted by the claimant; the purpose and intention of section 1.10A is to make it clear that the provisions of the MAI Act relating to the liability of the Nominal Defendant in connection with a motor accident apply to a claim for statutory benefits in the same way as they apply to a claim for damages; provisions in division 2.4, including section 2.29, restrict the circumstances in which the Nominal Defendant has a liability for a statutory benefits claim; the role played by section 1.10A is consistent with the other provisions in division 1.3 and the overall scheme of the Act; section 1.10A and section 2.29 apply to the claim; the Nominal Defendant does not have a liability to pay statutory benefits to the claimant under Part 3 of the MAI Act because the accident in which he was injured did not occur on a “road”; orders for costs made under section 8.10(4)(b) and section 8.3(4) of the MAI Act.
DETERMINATIONS MADE:	CERTIFICATE 1. Section 1.10A of the Motor Accident Injuries Act 2017 applies to Mr Wright’s claim. 2. The Nominal Defendant is not liable for Mr Wright’s claim. 3. The Nominal Defendant is to pay Mr Wright’s costs in the amount of $9,916.50 inclusive of GST.

STATEMENT OF REASONS

BACKGROUND

Mr Wright (claimant) was injured in an accident at his workplace on 5 March 2019 (accident) during the course of his employment with Wellen Pty Ltd, trading as Austcor Packaging (Austcor). The accident involved a collision between two forklifts, one driven by the claimant and the other by another employee of Austcor.
The claimant claimed and was paid compensation benefits under the Workers Compensation Act 1987 (WC Act). He also made a claim for damages against Austcor under the WC Act. The damages claim has resolved. The resolution of the damages claim brought to an end his entitlement to payments of compensation under the WC Act: s 151Z(1)(b).
The claimant maintains that he is entitled to statutory benefits for treatment and care under Division 3.4 of the Motor Accident Injuries Act 2017 (MAI Act), and that those benefits are payable by the Nominal Defendant in accordance with s 3.2(2)(c) of the MAI Act.
The Nominal Defendant disputes that it is liable to pay statutory benefits to the claimant. The Nominal Defendant’s position is underpinned by amendments made to the MAI Act by the Motor Accident Injuries Amendment Act 2022 (Amendment Act), specifically the introduction of s 1.10A.
Whether s 1.10A applies to the claim is the substantive issue in dispute. The dispute is about an issue of liability for statutory benefits not otherwise specified in Sch 2 of the MAI Act: Sch 2 cl3(n).

PROCEDURAL MATTERS

The Nominal Defendant’s reply, due on 30 November 2022, was lodged on 2 December 2022. The claimant objected to leave being granted to the Nominal Defendant to rely on the reply. For the reasons given on 6 December 2022 leave was granted to the Nominal Defendant to rely on its late reply.
At the preliminary conference held on 6 December 2022 the parties maintained that there was no issue in terms of compliance with s 7.41 of the MAI Act. The parties agreed that the Nominal Defendant had denied the claim for statutory benefits and, although the basis of the denial of liability has changed, the Commission had jurisdiction to determine the dispute about whether s 1.10A applies to the claim. The parties also agreed that the dispute is a miscellaneous assessment matter as it comes within the terms of Sch 2 cl 3(n) of the MAI Act.
The Nominal Defendant confirmed that it did not argue that, for the purposes of s 3.28 of the MAI Act, the accident was caused wholly or mostly by the fault of the claimant or that the claimant’s only injuries resulting from the accident were minor injuries. The Nominal Defendant confirmed that its denial of liability to pay statutory benefits was based on the application of s 1.10A of the MAI Act.
In terms of progressing the matter, the parties took the position that directions for the provision of submissions should not be made, and the matter should not be determined, until the regulations referred to in s 10A(b) had been published.
No regulations having been published, the proceedings were listed for a further preliminary conference on 20 March 2024. Directions for the provision of submissions and other material were made at that time. The parties agreed that the dispute could be determined on the papers.

ON THE PAPERS

Having considered both s 52 of the Personal Injury Commission Act 2020 (PIC Act) and Procedural Direction PIC2, I have concluded that the proceedings can be determined on the papers. I am satisfied that sufficient information is available to allow me to determine the issues in dispute without holding a formal hearing.

EVIDENCE

The evidence relied on by the parties is contained in a joint bundle. I have considered all the material in the bundle. It is evident that the claimant suffered significant injuries as a result of the accident.
The application for personal injury benefits dated 17 June 2019 records that the claimant suffered injuries to his back, neck and shoulders as a result of a collision that occurred while he was driving a forklift inside a factory at Ingleburn.
A police report dated 12 September 2019 records that the claimant reported the accident to police on 3 June 2019. The report records that the accident occurred at his workplace at Ingleburn, that it involved a forklift collision, and includes a description of the accident. The report states that the claimant’s solicitors had told him to report the incident to police, and that the event had been recorded for record keeping purposes only.
In a statutory declaration declared on 17 June 2019, the claimant provided the following version of the accident:
“[10]On 5 March 2019, during the course of my employment, I was driving a forklift. As I was reversing my forklift, my colleague … was driving his forklift towards me. I stopped my forklift and beeped my horn, however [he] could not see me because he had two pallets on his forklift which blocked his vision, and he collided with me. [He] was only supposed to have one pallet on his forklift because having two always blocks the driver's vision.”
The statutory declaration includes details of the claimant’s injuries, treatment, and other matters not presently relevant.
There is a factual investigation report from Brooksight Investigations dated 27 August 2019 that is addressed to NRMA. The investigation report includes, among other things, a signed statement from the claimant. The statement describes the nature of the claimant’s work and contains the following description of the accident:
“[14] I was reversing my forklift and I could see [another] forklift coming towards me. I could see that he had 2 pallets on his machine and I could not see him as the 2 pallets were blocking my view and therefore his view. He was about 7 or 8 metres from me and he was driving fast. I think over 10 kilometres per hour which was fast for a factory area. He was driving forward, which he is not supposed to do. I started sounding my horn and I put my foot on the breaks and I stopped, but he did not stop.”
The bundle also contains correspondence between the parties in relation to the claim, including liability notices, together with the decision of Assessor Watson dated

24 March 2020.

THE ACCIDENT

The following findings of fact reflect matters agreed between the parties[1] and are supported by the evidence:
[1] See undated Statement of Agreed Facts.
(a)    the claimant was injured in an accident at his workplace on 5 March 2019;
(b)    at the time of the accident, the claimant was employed by Austcor as a forklift driver;
(c)    the accident occurred during the course of the claimant’s employment with Austcor, inside a private factory operated by Austcor;
(d)    the accident involved a collision between a forklift driven by the claimant and a forklift driven by another employee of Austcor;
(e)    the forklifts involved in the accident are motor vehicles for the purposes of the MAI Act;
(f)    both forklifts were unregistered and uninsured at the time of the accident;
(g)    both forklifts were in operation and their wheels were moving at the time of the collision;
(h)    the accident occurred inside a private factory and not on a "road” or “road related area" within the meaning of the MAI Act;
(i)    the claimant lodged a successful workers’ compensation claim with Employers Mutual Limited (EML) for the accident and received statutory benefits and recovered damages;
(j)    the claimant lodged an Application for Personal Injury Benefits dated 17 June 2019 with the State Insurance Regulatory Authority (SIRA). The claim was allocated to NRMA for management on behalf of the Nominal Defendant;
(k)    on 22 July 2019, NRMA denied liability for statutory benefits up to 26 weeks on the basis that the claimant had made a successful workers’ compensation claim and did not have an entitlement to CTP statutory benefits;
(l)
on 18 September 2019, NRMA denied liability for statutory benefits after

26 weeks stating that:
“We agree that you were not at fault or mostly at fault however you have sustained a minor injury, you are able to lodge a Workers Compensation claim and CTP insurance does not apply as the accident was the fault of an unregistered vehicle on private property.”;
(m)     on 23 October 2019, NRMA maintained its decision to decline liability to pay statutory benefits;
(n)    on 29 October 2019, NRMA accepted that the claimant’s injuries were non-minor but maintained that he had no entitlement to statutory benefits as he had a successful workers’ compensation claim;
(o)    on 24 March 2020 Claims Assessor Watson of the Dispute Resolution Service determined the claimant was not entitled to statutory benefits as he had successfully lodged a workers’ compensation claim, which was active, and
(p)    the claimant’s workers’ compensation claim with EML resolved on 27 May 2022 and his workers’ compensation entitlements ceased pursuant to the WC Act.

SECTION 30 OF THE INTERPRETATION ACT

On 1 February 2024, the Commission sought confirmation from the parties as to whether any issues under s 30 of the Interpretation Act 1987 (Interpretation Act) arose in the proceedings. That provision is in the following terms:
“30 Effect of amendment or repeal of Acts and statutory rules
(1) The amendment or repeal of an Act or statutory rule does not—
(a) revive anything not in force or existing at the time at which the amendment or repeal takes effect, or
(b) affect the previous operation of the Act or statutory rule or anything duly suffered, done or commenced under the Act or statutory rule, or
(c) affect any right, privilege, obligation or liability acquired, accrued or incurred under the Act or statutory rule, or
(d) affect any penalty incurred in respect of any offence arising under the Act or statutory rule, or
(e) affect any investigation, legal proceeding or remedy in respect of any such right, privilege, obligation, liability or penalty,
and any such penalty may be imposed and enforced, and any such investigation, legal proceeding or remedy may be instituted, continued or enforced, as if the Act or statutory rule had not been amended or repealed.
(2) Without limiting the effect of subsection (1), the amendment or repeal of an Act or statutory rule does not affect—
(a) the proof of any past act or thing, or
(b) any right, privilege, obligation or liability saved by the operation of the Act or statutory rule, or
(c) any amendment or validation made by the Act or statutory rule, or
(d) the operation of any savings or transitional provision contained in the Act or statutory rule.
(3) This section applies to the amendment or repeal of an Act or statutory rule in addition to, and without limiting the effect of, any provision of the Act or statutory rule by which the amendment or repeal is effected.
(4) In this section, a reference to the amendment or repeal of an Act or statutory rule includes—
(a) a reference to the expiration of the Act or statutory rule,
(b) a reference to an amendment or repeal of the Act or statutory rule effected by implication,
(c) a reference to the abrogation, limitation or extension of the effect of the Act or statutory rule, and
(d) a reference to—
(i) the exclusion from the application of the Act or statutory rule, or
(ii) the inclusion within the application of the Act or statutory rule,
of any person, subject-matter or circumstance.”
The parties subsequently provided written submissions addressing that provision.

Claimant’s submissions

The claimant’s submissions dated 7 February 2024 record that the only basis on which the Nominal Defendant asserts he is not entitled to statutory benefits is the application of s 1.10A. The claimant submits that he acquired the entitlement to ongoing statutory benefits as at the date of the accident (5 March 2019), and no later than 28 July 2022, on the basis that:
(a) he settled his common law damages claim and thus, s 3.35 ceased to have effect from 27 May 2022, and
(b)
he reinvigorated his claim for statutory treatment expenses from the Nominal Defendant through a letter from his solicitors to the Nominal Defendant dated

28 July 2022.
In these circumstances, the claimant submits that he had a right to statutory benefits which had accrued and which he sought to assert by no later than 28 July 2022, and that those rights cannot be retrospectively removed by an amendment to the MAI Act in November 2022.
The claimant refers to DC Pearce and RS Geddes: Statutory Interpretation in Australia (8^th ed, 2014), and notes that the authors relevantly state that a legislative provision can only be retrospective if “…it provides that rights and obligations are changed with effect to the commencement of the legislation.”
The claimant refers to, and relies on, the following reasons of Dixon J in Kraljevich v Lakeview and Star Limited (1945) 70 CLR 647 from [652], a case involving a workers compensation claim where legislation had been amended:
“The presumptive rule of construction as against reading a statute in such a way as to change accrued rights the title to which consists in transactions past and closed or in facts or events that have already occurred. In other words, liabilities that are fixed, or rights that have been obtained, by the operation of the law upon facts or events for, or perhaps it should be said against, which the existing law provided are not to be disturbed by a general law governing future rights and liabilities unless the law so intends, appearing with reasonable certainty.”
The following statement of Dixon CJ in Maxwell v Murphy (1957) 96 CLR 261 (Maxwell) at [267] is also relied on:
“The general rule of the common law is that a statute changing the law ought not, unless the intention appears with reasonable certainty, to be understood as applying to facts or events that have already occurred in such a way as to confer or impose or otherwise affect rights or liabilities which the law has defined by reference to the past events.”
The claimant refers to a distinction drawn by Dixon CJ between changes to practice and procedure (which could be retrospective) as distinct from more substantive changes (which would not be), and refers to his Honour’s statement in Maxwell at [270]:
“Perhaps there could be no more practical summary of the principle which, as was said, emerges from the English and Canadian cases, than the following – ‘unless the language used plainly manifests in expressed terms or by clear implication a contrary intent’ –
(a)     A statute divesting vested rights is to be construed as prospective.
(b)     A statute, merely procedural, is to be construed as retrospective.
(c)     A statute which, while procedural in its character, affects vested rights adversely is to be construed as prospective.”
It is submitted that, having regard to the operation of s 30(1)(c) and the authorities, s 1.10A should not be construed to have retrospectively removed the claimant’s entitlement to lifetime statutory benefits for treatment under the MAI Act.
The submissions make it clear that the advancement of arguments addressing s 30 of the Interpretation Act is not to detract from the additional submissions put as to the possible construction of s 1.10A, and the claimant’s entitlements as set out in the written submissions of 16 January 2024.

Nominal Defendant’s submissions

The Nominal Defendant submits that there is no ambiguity as to the reading and application of the Amendment Act. The Nominal Defendant concedes “in the interest of fairness” that prior to the Amendment Act, specifically s 1.10A coming into effect, the claimant would have been entitled to statutory benefits as s 2.28 of MAI Act (now repealed) did not require an accident to have occurred on a road or road-related area for an entitlement to statutory benefits to arise. Accordingly, but for the amendment the claimant would have been entitled to statutory benefits following the settlement of his workers’ compensation claim.
The Nominal Defendant submits s 30 of the Interpretation Act does not apply because the Amendment Act clearly states when and how the amendments are to apply. In this regard, reference is made to Sch 4 Pt 7, which states that, except as provided by that Part or the regulations, the amendments extend to: a motor accident occurring before the commencement of the amendment, but not before 1 December 2017, and a claim for statutory benefits or damages made before the commencement of the amendment, but not before 1 December 2017, and proceedings pending before a merit reviewer, a medical assessor, a claims assessor or a court immediately before the commencement of the amendment.
For these reasons, the Nominal Defendant argues that the Amendment Act (and s 1.10A) applies retrospectively to all claims made from 1 December 2017.
Further, the Nominal Defendant says that any liability it would have had, but for the amendment, to pay statutory benefits extended only up to the fifth anniversary of the accident, 5 March 2024. From that date, the Nominal Defendant’s position is that it is a matter for the Lifetime Care and Support Scheme, as the relevant insurer, to consider whether it will accept liability for any statutory benefits.

Consideration

Under the common law, in the absence of a clear statement to the contrary, an Act will be assumed not to have retrospective operation: Maxwell at 267; Australian Education Union v General Manager of Fair Work Australia (2012) CLR 117; [2012] HCA 19 (Australian Education Union) at [30] (French CJ, Crennan and Kiefel JJ).
The presumption against retrospectivity can be excluded by a direct statement to the contrary in the relevant Act.[2] In ADCO Constructions Pty Ltd v Goudappel (2014) 254 CLR 1; [2014] HCA 18 (Goudappel) at [27] the plurality held that the protection of accrued rights provided by s 30(1)(c) of the Interpretation Act (read with s 5(2) of that Act) mirrors the common law as enunciated by Dixon CJ in Maxwell.
[2] D Pearce, Statutory Interpretation in Australia (LexisNexis, 9^th ed, 2019).
Gageler J, said this in Goudappel at [52]:
“A contrary intention sufficient to displace s 30 of the Interpretation Act must ordinarily appear with the same reasonable certainty as is needed to displace the general common law rule. A contrary intention need not be express and its implication, although sometimes referred to as "necessary implication", has not been confined to those extreme circumstances in which alteration of an existing right or liability "cannot be avoided without doing violence to the language of the enactment". The cases, rather, demonstrate that a contrary intention will appear with the requisite degree of certainty if it appears "clearly" or "plainly" from the text and context of the provision in question that the provision is designed to operate in a manner which is inconsistent with the maintenance of an existing right or liability.”
Section 2 of the Amendment Act states that, as it relates to s 1.10A, the Act commences on the date of assent (28 November 2022). Schedule 4 Part 7 s 14 of the MAI Act (and Sch 4 of the Amendment Act) clearly states that, except as provided by that Part or the regulations, an amendment made to the MAI Act by the Amendment Act extends to:
(a)    a motor accident occurring before the commencement of the amendment, but not before 1 December 2017;
(b)    a claim for statutory benefits or damages made before the commencement of the amendment, but not before 1 December 2017, and
(c)    proceedings pending before a merit reviewer, a medical assessor, the Commission or a court immediately before the commencement of the amendment.
Nothing in Part 7 provides for a variation of Sch 4 Part 7 s 14 as it relates to s 1.10A, nor is there a regulation that provides for the variation of that provision.
Section 14 of Sch 4 clearly states that the amendment extends to both a claim for statutory benefits made before, and proceedings pending before the Commission immediately before, the commencement of the amendment.
I am satisfied that a contrary intention sufficient to displace s 30 of the Interpretation Act, and the common law, appears clearly from the text of Sch 4 Part 7 s 14, and that the provision is designed to operate in a manner which is inconsistent with the maintenance of the existing right asserted by the claimant.

DOES S 1.10A APPLY TO THE CLAIM?

Claimant’s submissions

The claimant’s written submissions dated 16 January 2024 record that the decision in these proceedings has wider ramifications beyond his claim; access to lifetime treatment expenses is of significance to individuals injured in forklift accidents in factories.
The submissions canvas the various classes of insurers recognised in the MAI Act, together with what are said to be the multiple roles of the Nominal Defendant. It is argued that the role of the Nominal Defendant has been significantly expanded under the MAI Act when compared to the role it played in the Motor Accidents Act 1988 (MA Act) and the Motor Accidents Compensation Act 1999 (MAC Act). In the earlier Acts, the role of the Nominal Defendant was substantially limited to acting as a default insurer for damages claims in relation to unidentified and unregistered vehicles.
For the reasons set out at [44]-[48] of the submissions, it is argued that the role of the Nominal Defendant under s 3.2 is a significant expansion upon its “previous obligations”. The expanded role of the Nominal Defendant under s 3.2 is, it is submitted, separate and distinct from its role as default insurer where vehicles are not insured (s 2.29) and where vehicles are not identified (s 2.30).
It is submitted that if, as asserted by the Nominal Defendant, the claimant is somehow barred from the recovery of statutory benefits by the operation of s 1.10A, it bears the onus of making out the application of s 1.10A to the claim.
The claimant submits that for at least the following three reasons the Commission would find that s 1.10A does not apply in the circumstances of the claim and that he is entitled to ongoing treatment expenses as statutory benefits under the MAI Act:
(a)    section 2.29 has no application;
(b)    retrospective and compulsory acquisition of rights is wrong, and
(c)    there is internal consistency in relation to statutory benefits before and after five years.
The claimant does not rely upon s 2.29 of the MAI Act. He argues that:
(a)    he is entitled to statutory benefits under s 3.1 (a position which it is said the Nominal Defendant does not seem to dispute);
(b)    in the absence of any insurer providing motor accident insurance cover in relation to his accident, the relevant insurer is determined by s 3.2(c) (at least until five years post-accident) as being the Nominal Defendant, and
(c)    he does not rely upon any other statutory provisions to recover statutory benefits from the Nominal Defendant in accordance with Part 3 of the MAI Act.
In those circumstances, the claimant submits that there is no need for recourse to any other part of the MAI Act to “take away” his entitlements.
The claimant submits that the Nominal Defendant’s argument as to the application of s 1.10A is only relevant if he needs to rely upon s 2.29. He does not, however, rely upon the Nominal Defendant in its s 2.29 capacity as the default insurer of unidentified vehicles. Rather, the claimant seeks to recover from the Nominal Defendant pursuant to s 3.2(2)(c) wherein the Nominal Defendant acts as default insurer in a variety of circumstances that extend beyond cases where vehicles are uninsured (or unidentified).
It is argued that there is nothing in s 3.2(2)(c) that limits the liability of the Nominal Defendant as relevant insurer in accordance with any statutory tests contained within ss 2.29 and 2.30.
The claimant’s submissions record that s 2.27(1) provides that for the purposes of the MAI Act, SIRA is the Nominal Defendant, and that SIRA is an NSW government instrumentality. He submits that NRMA, on behalf of the Nominal Defendant, seeks to run an argument in relation to the application of s 1.10A that was not available before the passage of the Amendment Act in late 2022; the relevant Bill had not been presented to Parliament, let alone passed, when he settled his claim with his employer’s workers compensation insurer.
It would seem, the claimant argues, that NRMA accept that at the moment he settled his claim in May 2022, he had an entitlement to lifetime statutory benefits from the CTP scheme to be paid by the Nominal Defendant up to five years post-accident. It is only the asserted, and retrospective, effect of s 1.10A which NRMA utilises to deny the claimant’s entitlement to ongoing treatment expenses.
The claimant submits that while the Commonwealth Constitution prohibits the acquisition by the state of personal property other than on just terms, there is no such state-based constitutional protection in relation to the NSW Government. However, he submits that NSW courts and tribunals “ought be remarkably reluctant to arrive at a statutory construction that involves the retrospective stripping of an individual’s rights and entitlements for the unjust enrichment of the state”.
The claimant argues that the Nominal Defendant fund benefits from the retrospective removal of his entitlements to statutory treatment expenses for life, and that the Commission “would be extraordinarily reticent, in the absence of clear parliamentary language and intent, to construe the MAI Act so as to strip [him] of his entitlement to treatment expenses”. Any ambiguity in statutory construction would, it is argued, favour the retention of established rights, rather than their retrospective removal.
It is submitted that to the extent that there ought be “necessary modifications” to the operation of s 1.10A, one such obvious and necessary modification is to remove the retrospective application of the section to the claimant. This submission is rejected; the modification contended for is not obvious, nor is it necessary, particularly where the language in, and intention of, Sch 4 Part 7 s 14 is clear.
The claimant argues that the outcome for which the Nominal Defendant contends is “fundamentally and grossly unfair”; he settled his damages claim with EML in May 2022, with the reasonable expectation that he would then be able to call upon the NSW CTP scheme to meet his ongoing treatment expenses. Months after his case was resolved, the Nominal Defendant asserted that a retrospective statutory amendment has removed those entitlements. Absent clear parliamentary intent as to such retrospective amendment, it is submitted that the Commission would not apply s 1.10A.
As recorded earlier, the presumption against retrospectivity can be excluded by a direct statement to the contrary in the relevant Act. Such a statement is found in the MAI Act, as discussed earlier in the context of s 30 of the Interpretation Act. Further, as discussed in Australian Education Union at [32] by French CJ, Crennan and Kiefel JJ:
“While ‘fairness’ and ‘justice’ denote values underlying the relevant common law principles, it is neither necessary nor desirable, as a general rule, that the task of construction be mediated by broad evaluative judgments invoking that terminology...”
The claimant submits that if the intended operation of s 1.10A was to bar workers injured in forklift accidents from recovering statutory benefits from the CTP scheme after resolution of their damages claim against their employer, the drafting has not achieved that outcome. The claimant submits that the only reason the Nominal Defendant can contend it is not liable to pay statutory benefits is by arguing that the effect of s 3.2(2)(c) is modified by the operation of s 2.29(1).
It is submitted that as of 5 March 2024 (the fifth anniversary of the accident), the claimant will still fall within the scope of s 3.1 because he will still have injuries resulting from a motor accident, and statutory benefits will still be payable under s 3.1 unless there is some provision which bars payment. The question will then become: who pays statutory benefits in accordance with s 3.2? The combined effect of ss 3.2(2)(c) and 3.2(3) is that from the fifth anniversary of the accident, the LTCS Authority becomes the relevant insurer and the party liable to pay statutory benefits.
It is argued that if the Nominal Defendant were entitled to “some sort of protection” in this case by virtue of the operation of s 1.10A, a proposition which is disputed, what appears patently clear is that the LTCS Authority as relevant insurer has no such protection. This is because there is nothing within the Act that says the LTCS Authority only adopts liability as the relevant insurer at five years if there was a valid claim against a relevant insurer over the first five years following the accident.
It is submitted that if the intent of the drafters and the Parliament was to bar the claimant from recovering lifetime statutory benefits for treatment expenses, they have failed to achieve this outcome as he “must be found to be entitled to a lifetime of treatment expenses from the LTCS Authority at 5 years post-accident”. It is argued that, once it is accepted that the LTCS Authority does not get any protection from s 1.10A or s 2.29, the claimant’s ongoing entitlement to treatment expenses from five years is clear. In those circumstances, it is submitted, it makes no sense from a statutory drafting or statutory construction perspective to suggest:
(a)    an entitlement to statutory benefits immediately post-accident up to the time of resolution of the damages claim (paid by the WC insurer);
(b)    no entitlement to statutory benefits for treatment from the time of resolution of the damages claim to five years post-accident, and
(c)    an ongoing lifetime entitlement to treatment expenses after five years when the liability to pay switches over to the LTCS Authority as relevant insurer pursuant to s 3.2(3).
It is argued that the foregoing arrangement appears entirely inconsistent with the smooth and consistent operation of the CTP scheme. Accordingly, the far better statutory construction is to conclude that s 1.10A does not act as a bar to the claimant recovering statutory benefits between the date of the settlement of his damages claim and the fifth anniversary of his accident. The better approach is to conclude that the scheme provides for the claimant to have a “smooth and seamless lifetime of treatment expenses”, albeit with a series of different insurance entities meeting the liability from time to time (EML as workers compensation insurer; then the Nominal Defendant pursuant to s 3.2(2)(c); then the LTCS Authority post five years pursuant to s 3.2(3)).

The Nominal Defendant’s submissions

In written submissions dated 15 February 2024 the Nominal Defendant disputes that the claimant is entitled to statutory benefits under s 3.1 of the MAI Act and submits that, as the forklifts involved in the accident were unregistered and uninsured, the claim is appropriately against the Nominal Defendant under Part 2, Div 2.4 of MAI Act.
The submissions record that “Nominal Defendant” is defined in s 1.4 as “the Nominal Defendant referred to in section 2.27”, and that s 2.27 does not further define the Nominal Defendant. The submissions draw attention to the note to the section that states:
“see section 1.10A for the application of this Division to statutory benefits”
and submits that that the note is of particular importance as it was included by the amendment made to s 2.27 by Schedule 1 of the Amendment Act.
The Nominal Defendant submits that the clear intention of s 1.10A was to guide how statutory benefit claims made against the Nominal Defendant are to apply, and that the explanatory notes of the Amendment Bill explain the intention of the effect and application of s 1.10A. In this regard, it is recorded that paragraph (b) of the Overview of the Explanatory Notes states that the object of the Amendment Bill is “to clarify the application to claims for statutory benefits of provisions of the principal Act relating to the liability of the Nominal Defendant”.
Further, the submissions refer to Schedule 1 of the Explanatory Notes that states:
“Schedule 1[10] makes it clear that the provisions of the principal Act relating to the liability of the Nominal Defendant in connection with a motor accident apply to a claim for statutory benefits in the same way as they apply to a claim for damages.”
It is argued that, following ss 2.29 and 1.10A, for a claimant to make a claim for statutory benefits against the Nominal Defendant, the accident must have occurred on a “road”. Because the claimant’s forklift accident occurred inside a private factory operated by his employer, to which the public did not have free access, it does not meet the definition of “road”.
As to Part 3 of the MAI Act, the Nominal Defendant submits that, while the heading of Division 3.1 - “Entitlement to statutory benefits” - “calls for confusion”, it is clear that the Division is about by whom statutory benefits are payable and not the entitlement to receive statutory benefits. That is not correct; s 3.1 does deal with the entitlement to statutory benefits and, while subject to other provisions in the MAI Act, is the governing provision for payment of statutory benefits: QBE Insurance (Australia) Limited v Abberton [2021] NSWSC 588 at [32].
The Nominal Defendant points to the note to s 3.2, that states:
“The Nominal Defendant will be the relevant insurer where the motor vehicle concerned was not insured or identified as referred to in Division 2.4.”
and argues that “one is required to look at Division 2.4… when considering s 3.2”.
It is argued that the claimant cannot bypass s 2.29 and s 1.10A, and must meet the requirements of those provisions to be entitled to statutory benefits payable by the Nominal Defendant. Because the accident occurred inside a private warehouse, and not on a road in New South Wales, the Nominal Defendant is not liable for any statutory benefits.

Consideration

Section 1.10A is in the following terms:
“1.10A Liability of Nominal Defendant
The provisions of this Act relating to the liability of the Nominal Defendant in connection with a motor accident apply to a claim for statutory benefits in the same way as they apply to a claim for damages, subject to—
(a) necessary modifications, and
(b) modifications prescribed by the regulations.”
The provisions of the MAI Act relating to the liability of the Nominal Defendant in connection with a motor accident are contained in Div 2.4, and include s 2.29.
There have been no regulations made in relation to the application of s 1.10A.
Section 1.10A was included in the MAI Act consequent on enactment of the Amendment Act. The Bill was the subject of a Second Reading Speech in the Legislative Assembly on

19 October 2022, and received assent on 28 November 2022. In the second reading speech, the Minister said this:
“The bill also includes amendments to clarify the application to claims for statutory benefits of provisions in the Motor Accident Injuries Act 2017 relating to the liability of the Nominal Defendant. The amendment will also provide clarity in the operation of the scheme and certainty for scheme participants. The Government has listened to stakeholder feedback that additional statutory provisions would assist in clarifying the application of provisions relating to the Nominal Defendant to claim for statutory benefits. In response to this, amendments include new section, 1.10A, and consequential amendments to existing sections 2.27 and 2.28 to make clear that the existing provisions in the 2017 Act relating to the liability of the Nominal Defendant in connection with motor accidents apply to a claim for statutory benefits in the same way they apply to a claim for damages. The application of those provisions to statutory benefits is subject to necessary modifications.
The amendment also authorises the making of regulations modifying the application of the provisions to statutory benefits. Stakeholders will be consulted during the development of any regulation…”[3]
[3] Hansard 19 October 2022.
Whether s 1.10A applies to the claim is to be determined by reading the MAI Act as a whole[4]. The Act should be read in the ordinary way in which a document is read, that is from the beginning onwards: Patman v Fletcher’s Fotographics Pty Ltd (1984) 6 IR 471 at 474-5 per Priestley JA. Applying that approach means that s 1.10A and s 2.29 are to be read before s 3.1 and s 3.2.
[4] Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28 at [69].
The sections contained in Division 1.3 of the MAI Act are “gateway” provisions, in that each section in that Division contains restrictions in the application of the MAI Act. The Act does not apply to or in respect of a motor accident occurring before the commencement of the Act (s 1.8), and only applies where s 1.9 is engaged. By s 1.10, the application of the Act is limited to an injury (or death) that results from a motor accident for which the vehicle has motor accident insurance cover, or gives rise to a work injury claim.[5]
[5] Other than in respect of the death of or injury to a coal miner.

That ss 1.9 and 1.10 apply to his claim appears to be accepted by the claimant.[6] He also accepts that the definition of “motor accident” found in s 1.4 applies to his claim. Accepting that he is required to satisfy ss 1.9 and 1.10, ignoring s 1.10A, and proceeding to Part 3 to determine whether the Nominal Defendant has a liability for the claim, is neither a logical, nor cohesive approach to construing the MAI Act. It is inconsistent with the approach adopted by Priestley JA in Patman, is not a sound way of reaching what the draftsman’s purpose was, and would ignore the clear intention of Parliament as reflected in the statutory language and the second reading speech.
[6] Written submissions dated 16 January 2024 at 15 (c) and (d).
Section 1.10A is found in Div 1.3, and follows the provisions discussed above. The purpose and intention of s 1.10A is to make it clear that the provisions of the MAI Act relating to the liability of the Nominal Defendant in connection with a motor accident apply to a claim for statutory benefits in the same way as they apply to a claim for damages. Provisions in Div 2.4, including s 2.29, restrict the circumstances in which the Nominal Defendant has a liability for a statutory benefits claim. In this way, the role played by s 1.10A is consistent with the other provisions contained in Div 1.3 and the overall scheme of the Act.
Even if it were accepted that there is an internal inconsistency for the reasons advanced by the claimant, the inconsistency does not result in the claimant being able to avoid the application of s 1.10A to his claim.
In Project Blue Sky the plurality said this:
“[70] … Reconciling conflicting provisions will often require the court "to determine which is the leading provision and which the subordinate provision, and which must give way to the other". Only by determining the hierarchy of the provisions will it be possible in many cases to give each provision the meaning which best gives effect to its purpose and language while maintaining the unity of the statutory scheme.”
That s1.10A is the leading provision, and ss 3.1 and 3.2 are subordinate, is supported by the clear language of s 1.10A, and the inclusion of that provision within Div 1.3.
As already discussed, s 1.10A must be construed in the context of the Act as a whole. The provisions in Div 1.3 apply restrictions on the application of the MAI Act. Section 1.10A sits with other provisions that restrict the application of the Act. It must be characterised in that context. In the same way that ss 1.8-1.10 apply to the claim, so must s 1.10A.
There is a further matter that supports a conclusion that s 1.10A applies to the claim. Drafters have adopted the practice of inserting notes in legislation to provide assistance to readers, and that alert the reader to other relevant provisions of the Act that are relevant to an understanding of the Act.[7]
[7] Pearce (n 2) 201 – 202.
The note to s 3.2(2) states:
“The Nominal Defendant will be the relevant insurer where the motor vehicle concerned was not insured or identified as referred to in Division 2.4.”
While the note is not part of the Act[8], it is material that is capable of assisting in the ascertainment of the meaning of the Act: s 34 and s 35(4) Interpretation Act; Croc's Franchising Pty Ltd v Alamdo Holdings Pty Ltd [2023] NSWCA 256 per Stern JA at [194].
[8] Section 35(2) Interpretation Act.
Section 2.29 is contained in Div 2.4. For a note to s 3.2(2) to refer to Div 2.4 would provide no assistance to readers if that Division did not apply to a claim involving a motor vehicle that was not insured. The note alerts the reader that provisions in Div 2.4, relevantly s 2.29, are relevant to an understanding of s 3.2(2). And it is by s 1.10A that the provisions of Div 2.4 apply to a claim for statutory benefits.
The LTCS Authority is not a party to these proceedings. Its position with respect to the submissions made by the claimant is unknown. In those circumstances, I do not propose to address whether the LTCS has a liability to pay statutory benefits to the claimant, and if so, whether that gives rise to an inconsistency, as argued by the claimant. While the Act needs to be considered as a whole, the claimant’s submissions going to the role of the LTCS Authority in Part 3 of the MAI Act five years post-accident does not support a conclusion that s 1.10A does not apply to his claim. It remains to be seen how the LTCS Authority would have a liability to pay statutory benefits after five years in circumstances where neither an insurer nor the Nominal Defendant had a liability to pay statutory benefits as the “relevant insurer”.
For the foregoing reasons, s 1.10A applies to the claim, as does s 2.29. The Nominal Defendant does not have a liability to pay statutory benefits to the claimant under Part 3 of the MAI Act because the accident in which he was injured by an unregistered forklift did not occur on a “road” as relevantly defined.

COSTS

The claimant makes an application for costs pursuant to s 8.10(4)(b) of the MAI Act. In support of the application, the claimant points to the complexity of the legal issues that required determination in the proceedings.
Section 8.10(4)(b) gives the Commission a discretion to permit payment of legal costs incurred by a claimant but only if satisfied that exceptional circumstances exist that justify payment of those costs. Success is not a prerequisite to the claimant recovering costs from the insurer: AAI Ltd trading as GIO v Moon [2020] NSWSC 714 (Moon) at [82].
The Nominal Defendant agrees that the claimant’s costs fall into the criteria considered “exceptional” but only to the extent the costs are reasonable and necessary. The Nominal Defendant says that the following circumstances constitute “exceptional circumstances” for the purposes of s 8.10(4)(b) of the MAI Act:
(a)    the legal issues that arose for determination in the proceedings;
(b)    the work involved in preparation of written submissions and the matters addressed in those submissions, and
(c)    the issues were of such complexity that the claimant was represented by experienced senior counsel.
The claimant’s solicitors have provided a document described as an “Assessed Tax Invoice” dated 16 April 2024. An itemised schedule of costs attached to the invoice records the dates on which legal work was performed, the nature of the work, the time taken to perform the work, and the cost for each item of work. There is also a tax invoice from senior counsel.
Other than five entries in the claimant’s itemised schedule of costs that, it argues, are not reasonable and necessary legal costs incurred in connection with the proceedings, the Nominal Defendant does not dispute the balance of the claimant’s costs or disbursements.
On 20 May 2024 the claimant's representatives informed the Commission in writing that they did not press the following items in their invoice: 2 December 2022 – Attending on drafting application to admit late documents including drafting index and collating attachments - $75; 10 April 2024 – Attending on email to accounts encl bill instructions and letter to Moray & Agnew - $60.
I accept, for the reasons advanced by the Nominal Defendant in its written submissions dated 3 May 2024 at [4], that the five entries objected to, are not reasonable and necessary costs incurred by the claimant in connection with the proceedings. As a result, the claimant’s costs are to be reduced by $315.
I am satisfied that, for the purposes of s 8.10(4)(b) of the MAI Act, exceptional circumstances exist that justify payment of legal costs incurred by the claimant in connection with these proceedings. The Commission assesses, and permits payment of, those costs in the sum of $3,179[9] plus disbursements in the sum of $6,737.50 inclusive of GST, a total of $9,916.50.
[9] $3,205 - $315 = $2,890 + GST.
The Nominal Defendant seeks a cost order under s 8.3(4) of the MAI Act allowing its legal representatives to recover from it the reasonable and necessary legal costs provided in respect of the dispute beyond those permitted in the Regulation. The Nominal Defendant relies on the reasons of Wright J in Moon at [127]-[128].
It is argued that the matters that support an order under s 8.10(4)(b) also support the order sought under s 8.3(4). I agree. The Nominal Defendant’s legal representatives are permitted to recover from it their reasonable and necessary legal costs in connection with the proceedings beyond those permitted in the Regulation.

[2024] NSWPIC 268

23 May 2024