Wu v AAI Limited t/as GIO
[2021] NSWPICMR 42
•15 September 2021
| CERTIFICATE OF DETERMINATION OF MERIT REVIEWER | |
| CITATION: | Wu v AAI Limited t/as GIO [2021] NSWPICMR 42 |
| CLAIMANT: | Yan Dong Wu |
| INSURER: | AAI Limited t/as GIO |
| MERIT REVIEWER: | Brett Williams |
| DATE OF DECISION: | 15 September 2021 |
| CATCHWORDS: | MOTOR ACCIDENTS - Merit Review matter; legal costs relating to prior merit matter; Merit Reviewer determined not to award any legal costs; claimant commenced proceedings to recover costs in connection with prior merit matter; Held - Merit Reviewer had considered the claimant’s entitlement to recover legal costs from the insurer in connection with the merit matter; Merit Reviewer’s reasons disclose that he considered the question of legal costs and determined not to allow any legal costs; the claimant’s legal costs having been the subject of the Merit Reviewer’s decision, no power to re-visit the issue as a merit review matter as prescribed by Schedule 2 clause 1(aa) of the Motor Accident Injuries Act 2017 or any other provision in Schedule 2 clause 1; the proceedings are misconceived; proceedings dismissed in accordance with section 54(b) of the Personal Injury Commission Act 2020. |
| DETERMINATIONS MADE: | 1. The proceedings are dismissed in accordance with s 54(b) of the Personal Injury Commission Act 2020. |
Background
These proceedings were commenced by application filed in the Commission on 21 May 2021. The application relates to a dispute between Yan Wu (the claimant) and the insurer about legal costs. The claimant seeks to recover from the insurer legal costs in connection with an earlier application lodged with the Commission[1] (the Merit Matter). The Merit Matter was determined by Merit Reviewer Plibersek, who issued a certificate and reasons dated 17 May 2021 (the Merit Decision).
[1] APP-10389102
The insurer disputes that the claimant is entitled to recover from it legal costs in connection with the Merit Matter.
Having considered both s 52 of the Personal Injury Commission Act 2020 (the PIC Act) and Procedural Direction PIC2 I have determined that the proceedings can be determined on the papers. I am satisfied that sufficient information is available in connection with the proceedings to allow me to determine the dispute without holding a formal hearing.
The Merit Decision
The certificate issued in the Merit Decision is in the following terms:
“The reviewable decision is about whether the insurer is entitled to give a direction to the claimant under section 6.26.
1. The reviewable decision, being the Insurers’ entitlement to issue a direction dated 24 September 2020 to the Claimant under section 6.26, is affirmed.
2. By operation of sub- section 6.26(3) of the Motor Accident Injuries Act 2017 the Claimant is taken to have withdrawn his claim for damages.”
Legal costs are addressed at [34] – [38] of the reasons contained in the Merit Decision, as follows:
“Legal costs
34. Sections 8.3 and 8.10 of the Act make provision for the fixing and recovery of legal
costs in relation to claims for statutory benefits.
35. Sub-clause 22 (1) (a) of the Motor Accident Injuries Regulation 2017 provides in part that the costs set out in Schedule 1 are the maximum costs for legal services provided by an Australian legal practitioner to a claimant or to an insurer in a motor accidents matter.
36. Clause 1 of Schedule 1 Part 1 of the Regulation then provides that the maximum costs for legal services provided to a claimant or an insurer in connection with a merit review under Division 7.4 of the Act involving a dispute about a regulated merit review matter are 16 monetary units (to a maximum of 60 monetary units per claim). The definition of a regulated merit review matter includes under sub-clause 2(i):
“… whether the insurer is entitled to give a direction to the claimant under section 6.26 (Consequences of failure to provide relevant particulars of claim for damages) of the Act.”
37. In this matter neither the Claimant nor the Insurer’s solicitors raised the issue of legal costs of the merit review in any written or oral submission.
38. In view of my findings in this matter, and the conclusion that the Insurer was entitled to issue a Direction dated 24 September 2020 to the Claimant and also because neither party made any submissions on legal costs, I propose to make no provision to award any legal costs to either party.”
The claimant’s submissions
The claimant submits that Merit Reviewer Plibersek’s ‘proposal’ to “make no provision to award any legal costs to either party” is not a denial that legal costs do not apply or a denial of the claimant’s entitlement to legal costs in connection with the Merit Matter. It is submitted that the words “no provision to award” should not be interpreted as “no allowance for legal costs”. The claimant submits that Merit Reviewer Plibersek’s ‘comments’ in this regard should be understood as meaning that he was not in a position to comment on legal costs as costs were not addressed by the parties. It is submitted that, while it may have been better practice for the claimant to have made submissions about costs when the Merit Matter was on foot, the failure to do so does not, and should not, prevent the claimant from recovering her legal costs in connection with the Merit Matter.
The claimant argues that the insurer has misinterpreted the Merit Decision and that this has resulted in further disputation that has in turn led to these proceedings being commenced. In addition to costs in connection with the Merit Matter, the claimant seeks an order for the payment of costs in connection with these proceedings. It is argued that a costs penalty of 25% under s 6.21 should be applied to the costs allowed.
The insurer’s submissions
The insurer submits that the nature of the claimant’s application is not a merit review matter as defined under Schedule 2 of the Motor Accident Injuries Act 2017 (MAI Act) and that the application ought to be dismissed.
It is argued that Merit Reviewer Plibersek did not award any costs in favour of the claimant and correspondingly, there is no liability for the insurer to pay the claimant’s costs in connection with the Merit Review matter.
The insurer opposes an award for costs in favour of the claimant in these proceedings because:
(a) The Commission has no jurisdiction to determine this application given that the dispute is not a merit review matter; and
(b) Costs in connection to the Merit Review application were not sought by the claimant before Member Plibersek. Member Plibersek did not award any costs in favour of the claimant. It is against the interests of fairness for the insurer to bear the consequences of the claimant’s solicitors’ failure in the way they have conducted the application.
The insurer submits that s 6.21 of the MAI Act is not applicable for the purposes of the costs application as it does not concern the insurer’s denial of liability of the claim and the claimant is taken to have withdrawn the claim as at 24 December 2020.
Determination
In my view, Merit Reviewer Plibersek considered the claimant’s entitlement to recover legal costs from the insurer in connection with the Merit Matter. The Merit Reviewer’s reasons address legal costs under a separate and distinct heading. The Merit Reviewer’s reasons address relevant provisions in relation to legal costs in both the MAI Act and the 2017 Regulation. The Merit Reviewer determined not to allow costs in the Merit Matter for either party. He did so having taken into account:
(a) His findings in the matter;
(b) His conclusion that the insurer was entitled to issue a direction to the claimant dated 24 September 2020; and
(c) That neither party had made any submissions in relation to legal costs.[2]
[2] At [38].
This is not a matter in which the Merit Reviewer either failed to consider the claimant’s entitlement to recover legal costs or determined that he would not address the claimant’s entitlement to recover legal costs, leaving that issue for another day. The Merit Reviewer’s reasons disclose that he considered the question of legal costs and determined not to allow any legal costs.
The claimant’s legal costs having been the subject of the Merit Decision, I do not consider that I have the power to re-visit the issue as a merit review matter, as prescribed by Sch 2 cl 1(aa) of the MAI Act or any other provision in Sch 2 cl 1, or to conduct a review of the Merit Decision.
In the circumstances, I have concluded that the proceedings are misconceived. The proceedings are dismissed in accordance with s 54(b) of the PIC Act.
Brett Williams
Member (Motor Accidents Division) | Merit Reviewer
Personal Injury Commission
0
0
0