Court of Appeal Supreme Court New South Wales

• Medium Neutral Citation: Gudelj v Motor Accidents Authority of New South Wales [2011] NSWCA 158
• Hearing dates: 21 April 2011
• Decision date: 24 June 2011
• Before: Giles JA at 1; Hodgson JA at 2; Handley AJA at 80

Decision

(1) Leave to appeal granted to the applicant.

(2) Notice of Appeal to be filed within fourteen days.

(3) Appeal allowed and orders below set aside.

(4) Order in the nature of certiorari setting aside and quashing the decision of Ms Cassidy dated 14 August 2009 in CARS matter No 2009/12/1656, and setting aside the certificate of Ms Cassidy of the same date.

(5) An order in the nature of mandamus that the Motor Accidents Authority of New South Wales exercise its power in that CARS matter according to law.

(6) Order that NRMA pay the applicant's costs of the proceedings below.

(7) Order that NRMA pay the applicant's costs of the appeal.

(8) NRMA's application for leave to cross-appeal dismissed.

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

• Catchwords: TORTS - Motor accidents - Late claim - Requirement of s 108 of the Motor Accidents Compensation Act 1999 for a certificate before a claimant can bring court proceedings - Determination by CARS that claimant had not provided a full and satisfactory explanation for the delay - Determination by CARS PCA denying the claimant a certificate - Whether judicial review available.
• Legislation Cited: Motor Accidents Compensation Act 1999: ss 3, 5, 66, 69, 70, 72, 73, 74, 76, 81, 88, 92, 94, 96, 108; Motor Accident Authority Claims Assessment Guidelines: Div 1 Ch 2 cl 2.1; Div 2 Ch 8 cll 8.2, 8.11; Div 2 Ch 9 cl 9.2; Div 2 Ch 10; Div 3 Ch 10, 11; Div 3 Ch 14 cll 14.11, 14.12, 14.16; Supreme Court Act 1970: s 69
• Cases Cited: Allianz Australia Insurance Limited v GSF Australia Pty Limited [2005] HCA 26; (2005) 221 CLR 568; Hayek v Trujillo [2007] NSWCA 139; (2007) 49 MVR 12; Zotti v Australian Associated Motor Insurers Limited [2009] NSWCA 323
• Category: Principal judgment
• Parties: Darko GUDELJ (applicant/ first cross-respondent); MOTOR ACCIDENTS AUTHORITY OF NEW SOUTH WALES (first respondent/ second cross-respondent); Belinda CASSIDY (second respondent/third cross-respondent); Michelle BOYLE (third respondent/ fourth cross-respondent); INSURANCE AUSTRALIA LIMITED trading as NRMA Insurance (fourth respondent/ cross-applicant)
• Representation: Counsel: E Romaniuk (applicant/ first cross-respondent); K P Rewell SC/ M A Robinson (fourth respondent/ cross-applicant); Solicitors: Slater & Gordon (applicant/ first cross-respondent); Curwoods Lawyers (fourth respondent/ cross-applicant); I V Knight, Crown Solicitor (first, second, third respondents - submitting appearance)
• File Number(s): 2009/298145

Decision under appeal

• Citation: Gudelj v Motor Accidents Authority of New South Wales [2010] NSWSC 436
• Date of Decision: 2010-05-14 00:00:00
• Before: McDougall J
• File Number(s): SC 2009/298145

HEADNOTE

[This headnote is not to be read as part of the judgment.]

Facts

The applicant was injured in a motor vehicle accident on 21 May 2006. He gave notice of his intention to claim damages to the insurer, the fourth respondent (NRMA), on or about 27 October 2008. This was outside of the six-month limitation period set by s 72(1) of the Motor Accidents Compensation Act 1999 (the Act), and the respondent rejected the claim in writing on the basis it was late.

Section 73(3) of the Act provides:

(1) If a late claim is made, the claim cannot be referred for assessment under Part 4.4 unless:

(a) the insurer has lost the right to reject the claim on the ground of delay, or

(b) a claims assessor has, on the assessment of a dispute as to whether a late claim may be made in accordance with this section, assessed that the claimant has a full and satisfactory explanation for the delay in making the claim, or

(c) the claim is referred only for a certificate of exemption from assessment under Part 4.4.

On 9 March 2009, the applicant applied for a special assessment under s 96(1)(a) of the Act to determine whether a late claim could be made under s 73. On 2 July 2009 the assessor, the third respondent Ms Boyle, determined that he was not entitled to make a late claim.

On 11 June 2009, the applicant also submitted an application to the Claims Assessment and Resolution Service (CARS) for general assessment of his claim pursuant to s 94. This application was determined by the second respondent Ms Cassidy on 14 August 2009. She concluded that s 73(3) of the Act (as set out above) prevented the applicant's claim from being referred for or exempted from assessment because neither (a) nor (b) applied, and because (c) must be construed as a reference only to a referral for exemption from assessment under s 92(1)(a) in Part 4.4, which she held could not apply to the applicant's claim. Section 92(1) provides:

(1) A claim is exempt from assessment under this Part if:

(a) the claim is of a kind that is exempt under MAA Claims Assessment Guidelines or the regulations, or

(b) a claims assessor has made a preliminary assessment of the claim and has determined (with the approval of the Principal Claims Assessor) that it is not suitable for assessment under this part.

Section 108(1) of the Act provides:

(1) A claimant is not entitled to commence court proceedings against another person in respect of a claim unless:

(a) the Principal Claims Assessor has issued a certificate in respect of the claim under section 92 (Claims exempt from assessment), or

(b) A claims assessor has issued a certificate in respect of the claim under section 94 (Assessment of claims).

The effect of the decisions of Ms Boyle and Ms Cassidy was to deny the applicant both of these certificates, and so preclude him from bringing court proceedings in respect of his claim.

Also relevant is s 81, which places an obligation on the insurer to admit or deny liability, as follows:

(1) It is the duty of an insurer to give written notice to the claimant as expeditiously as possible whether the insurer admits or denies liability for the claim, but in any event within 3 months after the claimant gave notice of the claim under section 72.

...

(3) If the insurer fails to comply with this section, the insurer is taken to have given notice to the claimant wholly denying liability for the claim.

...

(5) It is a condition of an insurer's licence under Part 7.1 that the insurer must comply with this section.

At first instance the primary judge dismissed the applicant's summons with costs, holding that, because NRMA had not given an actual or deemed denial of liability under s 81, there was no basis on which a certificate could have been given under either s 92 or s 94.

Issues:

(1) Did the primary judge err in upholding Ms Boyle's decision?

(2) If not, does Ms Boyle's s 96(1)(a) determination have the effect that the applicant's late claim is prevented from being referred for a s 94 assessment and certificate, thereby denying the applicant access to the courts under s 108?

(3) Was NRMA required to give notice under s 81(1)?

(4) Did NRMA give actual or deemed notice of denial of liability under s 81?

(5) Was there a basis on which the applicant could be given a s 92(1)(b) certificate, and if so, does s 73(3)(c) include a claim referred for a certificate of exemption under s 92(1)(b) as well as under s 92(1)(a)?

(6) Did the primary judge therefore err in upholding Ms Cassidy's decision?

Held (Granting leave to appeal and allowing the appeal.):

( Per Hodgson JA, Giles JA and Handley AJA agreeing )

In relation to (1) - Ms Boyle's decision

The primary judge did not err in upholding Ms Boyle's decision. Parts of Ms Boyle's decision are suggestive of error, but her conclusion that a reasonable person would have sought legal advice earlier was available on the basis of the evidence.

In relation to (2) - section 96(1)(a) denial of review

An adverse s 96(1)(a) certificate does not necessarily have the effect of denying the applicant access to the courts. The objectives of the Act and the circumstances that s 96(1)(a) determinations are binding only for duties under Pt 4.3 and that assessments on liability are not binding on any party by virtue of s 95(1), suggest that claimants should not be shut out of an arguable claim before the courts by reason of a s 96(1)(a) assessment.

In relation to (3) - required notice

NRMA was required to give notice under s 81(1). The words "under s 72" in s 81(1) are not apt to limit the duty to cases where the six month limit in s 72(1) has been complied with.

In relation to (4) - actual or deemed notice

NRMA's written rejection of the claim on the grounds of the applicant's delay counts as written notice denying liability for the claim. In the alternative, notice is deemed by s 81(3).

In relation to (5) - sections 73(3)(c) and 92(1)(b)

NRMA's denial or deemed denial of liability was sufficient to ground the issue of a certificate of exemption under s 92(1)(b), and s 73(3)(c) includes a claim referred for a certificate of exemption under s 92(1)(b) as well as under s 92(1)(a). Although the Claims Assessment Guidelines distinguish between s 92(1)(a) and s 92(1)(b) applications, this is not sufficient to restrict s 73(3)(c) to applications of the former type.

In relation to (6) - Ms Cassidy's decision

The primary judge erred in upholding Ms Cassidy's decision, as the error of law by Ms Cassidy is sufficient to justify a review under s 69 of the Supreme Court Act 1970.

Judgment

1 GILES JA: I agree with Hodgson JA.

2 HODGSON JA: These proceedings concern two assessment decisions made by officers of the Claims Assessment and Resolution Service (CARS) established under the Motor Accidents Compensation Act 1999 (the Act). These decisions relate to a claim made by the applicant for damages in respect of injuries suffered by him in a motor vehicle accident that occurred on 21 May 2006, of which notice was given to the fourth respondent (NRMA), the relevant insurer, outside the six-month period limited by s 72(1) of the Act.

3 The first decision was made by the third respondent Ms Boyle, a CARS assessor, on 2 July 2009; and was to the effect that the applicant was not entitled, under s 73(1) of the Act, to make a late claim in respect of his injury.

4 The second decision was made by the second respondent Ms Cassidy, CARS' Principal Claims Assessor (PCA) on 14 August 2009, and was to the effect that the applicant's claim could neither be referred for assessment nor exempted from assessment under the Act, and that his claim must be dismissed.

5 The applicant brought proceedings in the common law division against the first respondent (the Motor Accidents Authority), Ms Cassidy, Ms Boyle and NRMA, seeking judicial review of those decisions.

6 On 14 May 2010, McDougall J dismissed the applicant's summons with costs. The applicant seeks leave to appeal from that decision. The application for leave was argued on the basis that, if leave is granted, the appeal will be decided without further argument.

Statutory provisions

7 The heart of the problem faced by the applicant is that he is precluded, by s 108(1) of the Act, from bringing court proceedings in respect of his claim, unless the PCA issues a certificate that his claim is exempt from assessment under the Act pursuant to s 92 of the Act, or a claims assessor issues a certificate of assessment of his claim under s 94 of the Act. The effect of the challenged decisions is to deny him these certificates.

8 The application requires close consideration of a number of provisions of the Act, and also of the Claims Assessment Guidelines issued under s 69(1) of the Act.

9 There is a definition of "claim" in s 3 of the Act, and s 5 sets out the objects of the Act.

3 Definitions

(cf ss 3, 3B, 3C, 68 MAA)

In this Act:

claim means a claim for damages in respect of the death of or injury to a person caused by the fault of the owner or driver of a motor vehicle in the use or operation of the vehicle.

5 Objects of Act

(cf s 2A MAA; Sch 1 [1] of Act No 132 of 1998)

(1) The objects of this Act are as follows:

(a) to encourage early and appropriate treatment and rehabilitation to achieve optimum recovery from injuries sustained in motor accidents, and to provide appropriately for the future needs of those with ongoing disabilities,

(b) to provide compensation for compensable injuries sustained in motor accidents, and to encourage the early resolution of compensation claims,

(c) to promote competition in the setting of premiums for third-party policies, and to provide the Authority with a prudential role to ensure against market failure,

(d) to keep premiums affordable, recognising that third-party bodily insurance is compulsory for all owners of motor vehicles registered in New South Wales,

(e) to keep premiums affordable, in particular, by limiting the amount of compensation payable for non-economic loss in cases of relatively minor injuries, while preserving principles of full compensation for those with severe injuries involving ongoing impairment and disabilities,

(f) to ensure that insurers charge premiums that fully fund their anticipated liability,

(g) to deter fraud in connection with compulsory third-party insurance.

(2) It must be acknowledged in the application and administration of this Act:

(a) that participants in the scheme under this Act have shared and integrated roles with the overall aim of benefiting all members of the motoring public by keeping the overall costs of the scheme within reasonable bounds so as to keep premiums affordable, and

(b) that the law (both the enacted law and the common law) relating to the assessment of damages in claims made under this Act should be interpreted and applied in a way that acknowledges the clear legislative intention to restrict the level of non-economic loss compensation in cases of minor injuries, and

(c) that:

(i) the premium pool from which each insurer pays claims consists at any given time of a finite amount of money, and

(ii) insurers are obliged under this Act to charge premiums that will fully fund their anticipated liability, and

(iii) the preparation of fully funded premiums requires a large measure of stability and predictability regarding the likely future number and cost of claims arising under policies sold once the premium is in place, and

(iv) the stability and predictability referred to in subparagraph (iii) require consistent and stable application of the law, and

(d) that insurers, as receivers of public money that is compulsorily levied, should account for their profit margins, and their records should be available to the Authority to ensure that accountability.

10 Chapter 4 of the Act is entitled "Motor accident claims", and s 66(2) in that chapter provides as follows:

(2) In this Chapter, a reference to a full and satisfactory explanation by a claimant for non-compliance with a duty or for delay is a reference to a full account of the conduct, including the actions, knowledge and belief of the claimant, from the date of the accident until the date of providing the explanation. The explanation is not a satisfactory explanation unless a reasonable person in the position of the claimant would have failed to have complied with the duty or would have been justified in experiencing the same delay.

11 Part 4.2 of the Act, within ch 4, is entitled "Claims and other preliminary matters". This part includes ss 70, 72, 73, 74 and 76.

Part 4.2 Claims and other preliminary matters

70 Reporting of motor accident to police

(1) Unless a police officer attended the motor accident, a motor accident that gives rise to a claim must be reported to a police officer by or on behalf of the claimant within 28 days after the motor accident. This requirement is referred to in this section as the police accident report requirement .

(2) A person who makes a claim must provide to the insurer a full and satisfactory explanation for any non-compliance with the police accident report requirement.

(3) If the police accident report requirement for a claim is not complied with, the claim cannot be referred for assessment under Part 4.4 unless:

(a) the insurer has lost the right to reject the claim on the ground of that non-compliance, or

(b) a claims assessor has, on the assessment of a dispute as to whether the claimant has a full and satisfactory explanation for the non-compliance, assessed that sufficient cause existed to justify the delay in reporting the motor accident to a police officer and that a report of the motor accident to a police officer was made within a reasonable period in the circumstances, or

(c) the claim is referred only for a certificate of exemption from assessment under Part 4.4.

(4) The insurer loses the right to reject a claim on the ground of non-compliance with the police accident report requirement if the insurer:

(a) does not, within 2 months after receiving the claim, reject the claim on the ground of that non-compliance or ask the claimant to provide a full and satisfactory explanation for the non-compliance, or

(b) does not, within 2 months after receiving an explanation for the non-compliance, reject the explanation.

(5) If court proceedings are commenced on a claim in respect of which the police accident report requirement has not been complied with, the insurer may apply to the court to have the proceedings dismissed on that ground.

(6) An application to have proceedings dismissed on the ground of non-compliance with the police accident report requirement cannot be made more than 2 months after the statement of claim is served on the defendant and received by the insurer and also cannot be made if the insurer has lost the right to reject the claim on the ground of that non-compliance.

(7) On an application to have proceedings dismissed on the ground of non-compliance with the police accident report requirement, the court must dismiss the proceedings unless satisfied that sufficient cause existed to justify the delay in reporting the motor accident to a police officer and that a report of the motor accident to a police officer was made within a reasonable period in the circumstances.

(8) In this section, a reference to an insurer includes a reference to the person against whom the claim is made.

...

72 Time for and notice of making of claims

(cf s 43 MAA)

(1) A claim must be made within 6 months after the relevant date for the claim. The relevant date is the date of the motor accident to which the claim relates unless the claim is made in respect of the death of a person, in which case the relevant date is the date of the person's death.

(2) A claim is made by giving notice of the claim as follows:

(a) in the case of a claim against a person whose insurer is a third-party insurer, to the person's insurer,

(b) in any other case, to the person against whom the claim is made.

(3) The requirement under subsection (2) (only in so far as it is a requirement to give notice of a claim to the person against whom the claim is made and without affecting the requirement to give notice to the insurer) does not apply if:

(a) that person is dead, or

(b) that person cannot be given notice.

73 Late making of claims

(cf s 43A MAA)

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

(2) Evidence as to any delay in the onset of symptoms relating to the injury suffered by the injured person as a result of the motor accident may be given in any such explanation.

(3) If a late claim is made, the claim cannot be referred for assessment under Part 4.4 unless:

(a) the insurer has lost the right to reject the claim on the ground of delay, or

(b) a claims assessor has, on the assessment of a dispute as to whether a late claim may be made in accordance with this section, assessed that the claimant has a full and satisfactory explanation for the delay in making the claim, or

(c) the claim is referred only for a certificate of exemption from assessment under Part 4.4.

(4) The insurer loses the right to reject a late claim on the ground of delay if the insurer:

(a) does not, within 2 months after receiving the claim, reject the claim on the ground of delay or ask the claimant to provide a full and satisfactory explanation for the delay, or

(b) does not, within 2 months after receiving an explanation for the delay, reject the explanation.

(5) If court proceedings are commenced on a late claim, the insurer may apply to the court to have the proceedings dismissed on the ground of delay.

(6) An application to have proceedings dismissed on the ground of delay cannot be made more than 2 months after the statement of claim is served on the defendant and received by the insurer and also cannot be made if the insurer has lost the right to reject the claim on the ground of delay.

(7) On an application to have proceedings on a late claim dismissed on the ground of delay, the court must dismiss the proceedings unless satisfied that the claimant has a full and satisfactory explanation for the delay in making the claim.

(8) In this section, a reference to an insurer includes a reference to the person against whom the claim is made.

Note . The combined effect of sections 72 and 73 is as follows:

A claim generally must be made within 6 months after the date of the accident or the date of death.

If, however, a claim is made more than 6 months after the date of the accident or death, a full and satisfactory explanation for the delay in making the claim must be provided.

Section 96 provides that a dispute about whether a late claim can be made may be referred to a claims assessor.

74 Form of notice of claim

(cf s 44 MAA)

(1) A notice of a claim under this Part must:

(a) be in the form approved by the Authority, and

(b) set out or be accompanied by such particulars and information as may be required by that form.

(2) A notice of claim given to an insurer may, if approved by the Authority, require the claimant to do any one or more of the following:

(a) furnish a medical certificate relating to the claim signed by a medical practitioner,

(b) authorise the insurer to obtain information and documents relevant to the claim from persons specified in the authorisation,

(c) authorise the insurer to provide information and documents so obtained by the insurer to persons specified in the authorisation.

(2A) A copy of an authorisation for the obtaining of information and documents from a person is sufficient authorisation for that purpose and may be relied on as if it were the original authorisation.

(3) The Authority may approve different forms according to the persons to whom the notice is to be given.

(4) A notice of a claim given to an insurer must be verified by statutory declaration.

...

76 Rejecting claims for failure to comply with section 74

(1) If section 74 has not been complied with, a claim cannot be referred for assessment under Part 4.4 unless:

(a) the insurer has lost the right to reject the claim for non-compliance with section 74, or

(b) a claims assessor has, on the assessment of a dispute as to whether the claim may be rejected for non-compliance with section 74, assessed that the non-compliance is technical and of no significance, or

(c) the claim is referred only for a certificate of exemption from assessment under Part 4.4.

(2) The insurer loses the right to reject a claim for non-compliance with section 74 if within 2 months after receiving the claim the insurer does not reject the claim for non-compliance with that section.

(3) If court proceedings are commenced on a claim in respect of which section 74 has not been complied with, the insurer may apply to the court to have the proceedings dismissed on the ground of non-compliance with section 74.

(4) An application to have proceedings dismissed on the ground of non-compliance with section 74 cannot be made more than 2 months after the statement of claim is served on the defendant and received by the insurer and also cannot be made if the insurer has lost the right to reject the claim on the ground of that non-compliance.

(5) On an application to have proceedings dismissed on the ground of non-compliance with section 74, the court must dismiss the proceedings on that ground unless satisfied that the non-compliance is technical and of no significance.

(6) In this section, a reference to an insurer includes a reference to the person against whom the claim is made.

12 Part 4.3 of the Act is entitled "Duties with respect to claims", and it includes s 81:

81 Duty of insurer with respect to admission or denial of liability

(1) It is the duty of an insurer to give written notice to the claimant as expeditiously as possible whether the insurer admits or denies liability for the claim, but in any event within 3 months after the claimant gave notice of the claim under section 72.

(2) If the insurer admits liability for only part of the claim, the notice is to include details sufficient to ascertain the extent to which liability is admitted.

(3) If the insurer fails to comply with this section, the insurer is taken to have given notice to the claimant wholly denying liability for the claim.

(4) Nothing in this section prevents an insurer from admitting liability after having given notice denying liability or after having failed to comply with this section.

(5) It is a condition of an insurer's licence under Part 7.1 that the insurer must comply with this section.

13 Part 4.4 is entitled "Claims assessment and resolution", and it includes ss 88(2), 92 and 96.

88 Definitions

...

(2) A reference in this Part to referring a claim for assessment under this Part includes a reference to referring a claim for a certificate of exemption from assessment under this Part.

92 Claims exempt from assessment

(1) A claim is exempt from assessment under this Part if:

(a) the claim is of a kind that is exempt under MAA Claims Assessment Guidelines or the regulations, or

(b) a claims assessor has made a preliminary assessment of the claim and has determined (with the approval of the Principal Claims Assessor) that it is not suitable for assessment under this Part.

(2) If a claim is exempt from assessment under this Part, the Principal Claims Assessor must, as soon as practicable, issue the insurer and claimant with a certificate to that effect (enabling court proceedings to be commenced in respect of the claim concerned).

96 Special assessments of certain disputes in connection with claims

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

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

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

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

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

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

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

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

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

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

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

(2) Any such dispute may be referred at any time to the Authority by the claimant or the insurer, or both, for assessment under this Part.

(3) Any such dispute is to be referred to a claims assessor, the dispute is to be assessed and a certificate is to be issued by the claims assessor in accordance with the relevant provisions of this Division relating to the assessment of claims. Division 3 applies to the assessment of the dispute in the same way as it applies to the assessment of a claim.

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

(5) An assessment of a dispute under this section may include an assessment of the claimant's costs (including costs for legal services and fees for medico-legal services) in the assessment. Section 94A extends to an assessment of those costs.

(6) An assessment of the claimant's costs on a dispute is binding on the insurer and the insurer must pay to the claimant the amount of the assessed costs.

14 Part 4.5 of the Act is entitled "Court proceedings on claims", and it includes s 108(1):

108 Claims assessment or exemption pre-condition for commencement of court proceedings

(1) A claimant is not entitled to commence court proceedings against another person in respect of a claim unless:

(a) the Principal Claims Assessor has issued a certificate in respect of the claim under section 92 (Claims exempt from assessment), or

(b) a claims assessor has issued a certificate in respect of the claim under section 94 (Assessment of claims).

15 In the Claims Assessment Guidelines, div 1 is entitled "Introduction and registry", and within that Division ch 2 is entitled "Jurisdiction". That chapter includes cl 2.1:

Chapter 2 - Jurisdiction

2.1 An application may be made to CARS for assessment of:

2.1.1 whether a certificate of exemption should be issued pursuant to section 92(1)(a) ('an application for exemption');

2.1.2 the insurer's liability for the claim and the amount of damages for that liability and the issue of a certificate pursuant to section 94, and/or whether a certificate of exemption should be issued pursuant to section 92(1)(b) if the claim is found to be 'not suitable for assessment' ('an application for general assessment');

2.1.3 a matter remitted by the Court for further claims assessment and issue of a new certificate of assessment where significant new evidence is produced in court proceedings pursuant to section 111 ('an application for further general assessment'); and/or

2.1.4 a dispute in connection with a claim between a claimant and an insurer that is one of the certain types of disputes as set out in section 96 ('an application for special assessment').

16 Division 2 of the Guidelines is entitled "Application types". Chapter 8 within that division is entitled "Exemption of claims from general assessment (section 92(1)(a))", and that chapter includes cl 8.2 and cl 8.11.1:

8.2 The claimant, the insurer, or both may make an application to the PCA for a certificate of exemption under section 92(1)(a) pursuant to this chapter.

( Note: For provisions regarding making an application to an Assessor that a claim is not suitable for assessment and is exempt under section 92(1)(b) see Chapter 14 at clause 14.11 and following.)

...

8.11 For the purpose of section 92(1)(a), the PCA shall issue a certificate of exemption when satisfied that, as at the time of the consideration of the application, the claim involves one or more of the following circumstances:

8.11.1 the fault of the owner or driver of a motor vehicle in the use or operation of the vehicle is denied by the insurer of that vehicle in its written notice issued in accordance with section 81;

...

Other sub-clauses of cl 8.11 deal with partial denials of liability, and various exceptional circumstances.

17 Chapter 9 within div 2 is entitled "General assessment (section 94)". That chapter includes clause 9.2:

9.2 Either party may lodge an application for general assessment at any time, subject to the time limits for referring claims in section 91 and this chapter.

18 Chapter 10 within div 2 is entitled "Further general assessment (section 111)"; and ch 11 within div 2 is entitled "Special assessment (section 96)".

19 Division 3 of the Guidelines is entitled "Allocations and assessments". This division contains provisions concerning applications under chs 9, 10 and 11. Chapter 14 within this division is entitled "Preliminary assessment and Preliminary Conference". This chapter includes cls 14.11, 14.12, and 14.16.1 and .8:

14.11 For the purpose of section 92(1)(b), an Assessor may, in dealing with an application for general assessment and following a preliminary assessment of the claim, determine that the claim is not suitable for assessment.

14.12 An Assessor may make a preliminary determination that a claim is not suitable for assessment on their own initiative or upon application by the claimant, the insurer, or both, at any time during the course of an assessment, after providing the parties with the opportunity to make submissions on that issue and considering any such submissions.

...

14.16 In determining whether a claim is not suitable for assessment, an Assessor and the PCA shall have regard to the circumstances of the claim as at the time of the preliminary determination including, but not limited to:

14.16.1 whether the claim is exempt under section 92(1)(a) because the claim involves one or more of the circumstances set out in clause 8.11;

...

14.16.8 whether the insurer is deemed to have denied liability under section 81(3);

...

Other grounds specified in cl 14.16 relate mainly to complexities associated with the claim, which may be thought to make the claim unsuitable for CARS assessment, and appropriate for court proceedings.

Outline of facts

20 The applicant was injured in a motor vehicle accident on 21 May 2006.

21 On about 27 October 2008, the applicant gave notice of a claim in respect of injuries suffered by him in that accident to NRMA.

22 On 30 October 2008, NRMA rejected the claim on the basis that it was incomplete, and also on the basis that it was late, asserting that the explanation provided for the delay was not full and satisfactory.

23 After further communication from the applicant's solicitor, on 27 November 2008 NRMA accepted that the claim was complete, but maintained its rejection on the basis that it was late.

24 On 9 March 2009, the applicant applied for a special assessment under s 96(1)(a) of the Act of the question whether a late claim could be made under s 73.

25 Ms Boyle determined that application adversely to the applicant on 2 July 2009. In her reasons, Ms Boyle summarised the explanation given by the applicant for the delay making the claim. Ms Boyle accepted the applicant had given a full explanation for the delay, and then turned to consider whether this explanation was satisfactory:

15. Having found the explanation to be full I must now turn to whether I consider it to be a satisfactory explanation, that is to say whether a reasonable person in the position of the claimant would have failed to have complied with the duty or would have been justified in experiencing the same delay.

16. Mr Gundelj appears to rely on two reasons for late lodgement of his claim. Firstly, that he expected his symptoms to resolve, but instead they deteriorated prompting him to finally take action, and secondly, that he was not aware of the time limits involved in lodging a claim for compensation under the Motor Accidents Compensation Act, until he met with his solicitors in July 2008.

17. It is almost contradictory that Mr Gundelj would rely on both explanations, given that in relying on the first, that being that he assumed his injuries would resolve, one would assume that he was aware of his rights but chose not pursue them as he thought his injuries would improve.

18. Section 73(2) provides, as stated above, that " evidence as to any delay in the onset of symptoms relating to the injury suffered by the injured person as a result of the motor accident may be given in any such explanation ". While I note the medical evidence provided by the claimant, Mr Gundelj in his explanations has advised that he took 3 weeks off work immediately after the accident. Following this he details numerous attendances on his doctors, and advises that he was referred for physiotherapy. He was consistently suffering pain from the time of the accident onwards. By October 2006 he was referred for further x-rays, and also referred for further physiotherapy. It is clear that there was no delay in the onset of symptoms, that he experienced symptoms from the date of the accident, and that these symptoms were serious enough to warrant numerous medical consultations, investigations, and treatment. While it is clear that his condition was exacerbated by the incident in June 2008 I believe that a reasonable person would have sought legal advice sooner given the symptoms he immediately experienced.

19. While Mr Gundelj contends that he was not aware of his rights or obligations until he first consulted with his solicitors, I believe that a reasonable person in his position would have sought legal advice sooner given his medical condition.

20. By Mr Gundelj's admission his pain, though prevalent from the beginning, worsened over time since the accident, warranting numerous visits to the doctor. He underwent treatment in the form of physiotherapy, and was prescribed numerous medications, all of which he presumably had to pay for. In my view a reasonable person in Mr Gundelj's position, suffering ongoing symptoms from the date of accident and paying medical expenses, would have sought information as to his legal rights.

21. Mr Gundelj states " Before the onset of all of my back problems I had not thought of making a claim ", he does not state specifically when he considers this to be the case. Indeed, his back problems were evident from the date of the accident, and presumably he would have turned his mind to the thought of making a claim at some earlier point.

22. In addition, I note that at the time of the accident Mr Gundelj worked in the automotive industry as a spray painter, and presumably would have had access to information concerning, or knowledge of, motor accident claims, or otherwise worked with colleagues involved in the industry that would be aware of motor accident claims and the rights and obligations involved.

23. For these reasons I cannot be satisfied that a reasonable person in the position of the claimant would have failed to seek legal advice sooner or would have failed to have complied with the duty or would have been justified in experiencing the same delay.

26 Meanwhile, on 11 June 2009, the applicant had submitted to CARS an application for general assessment of the claim, in the form appropriate for applications pursuant to s 94 of the Act. In that form, the following was asserted:

The claimant submits that his claim is not suitable for assessment at CARS based on liability being deemed denied under section 81(3) (clause 14.16.8). The CTP insurer, NRMA was notified of Claimant's claim on 28 October 2008 ... To date NRMA has neither accepted nor denied liability.

(emphasis in original)

27 Ms Cassidy determined that application on 14 August 2009. After carefully reviewing the statutory provisions, and referring to Hayek v Trujillo [2007] NSWCA 139; (2007) 49 MVR 12, Ms Cassidy concluded that s 73(3) of the Act prevented the applicant's claim being referred for assessment, because:

(1) Neither par (a) nor par (b) of s 73(3) applied;

(2) Section 73(3)(c) must be construed as a reference only to a referral for exemption from assessment under s 92(1)(a); and

(3) This claim was not being referred for assessment under s 92(1)(a).

28 In addition, Ms Cassidy asserted that the claim could not in any event be exempted under s 92(1)(a), because no part of cl 8.11 applied. In particular, 8.11.1 did not apply, because NRMA had not issued a s 81 notice.

Decision of primary judge

29 As regards Ms Boyle's decision, the primary judge noted submissions for the applicant that Ms Boyle's references to a perceived possible inconsistency in the applicant's reasons, and to knowledge to be imputed to a spray painter working in the automotive industry infected her reasoning process as to what a reasonable person in the applicant's position would have done.

30 In relation to those submissions, the primary judge said this:

[47] I do not accept that Ms Boyle's reasoning is infected by error (if indeed there is error) in her perception of a potential inconsistency. Nor do I accept that it is infected by her view of what a spray painter in the automotive industry might know. On the contrary, I think, it is plain that the core of her reasoning is found in her assessment of what a reasonable person in Mr Gudelj's position, knowing (or experiencing) what Mr Gudelj knew (or experienced) from time to time after his accident, would have done. Mr Romaniuk did not submit that Ms Boyle's assessment of the medical evidence betrayed any reviewable error. The other matters were at most ancillary to her core reasoning.

[48] In my view, the conclusion that Ms Boyle reached on the basis of the evidence (as she reviewed and summarised it) was one that was available to her. In essence, Ms Boyle accepted, Mr Gudelj's stated position was that he was ignorant of his rights until he sought legal advice in July 2008. The fact that she may have had reservations about that does not seem to me to matter, because she acted not upon the basis of those reservations but, instead, upon her analysis of what a reasonable person in Mr Gudelj's position would have done before July 2008. That analysis is conceptually distinct from the reservations that she expressed.

31 As regards Ms Cassidy's decision, the primary judge carefully analysed relevant provisions of the Act and the Guidelines, and concluded that Ms Cassidy was in error in concluding that s 73(3) applied only to claims exempt under s 92(1)(a) and not to claims exempt under s 92(1)(b).

32 However, the primary judge decided that the applicant's challenge to Ms Cassidy's conclusion failed.

33 He rejected a contention that s 92(1)(b) applied, because of par 14.16.8 of the Guidelines:

[104] Mr Romaniuk submitted that s 92(1)(b) applied because of para 14.16.8 of the Guidelines. But, in my view, the insurer is not "deemed to have denied liability under section 81(3)". That is because s 81(3) only applies if the insurer is in default of the duty cast on it by, relevantly, s 81(1). Section 81(1) requires an insurer to give written notice to the claimant, whether the insurer admits or denies liability for the claim, no later than "within three months after the claimant gave notice of the claim under section 72". In this case, Mr Gudelj did not give notice of the claim under s 72. Section 72 refers to a claim made within six months after the relevant date, not to claims made (as was Mr Gudelj's claim) outside that time limit. Since there was no notice of claim under s 72, there was no failure to comply with s 81(1) capable of activating s 81(3).

34 He held (par [107]) that the applicant had not asserted any other possible basis for exemption from assessment pursuant to s 92(1)(b), so that there was no reason to remit the matter to Ms Cassidy for further consideration in respect of the claim for exemption under s 92(1)(b).

35 He held (pars [108]-[110]) that there was no error in Ms Cassidy's conclusion that s 92(1)(a) did not apply: there was no notice from NRMA denying liability, and no deemed denial, for reasons given at [104].

36 He did not permit a late submission from the applicant that Ms Cassidy had no power to dismiss the applicant's claim.

37 Accordingly, the primary judge dismissed the applicant's summons with costs.

Issues on application

38 The applicant seeks to rely on the following grounds of appeal:

1 The trial judge erred in dismissing the summons filed 16 November 2009.

2 The trial judge erred in refusing relief in the nature of judicial review pursuant to s.69 of the Supreme Court Act 1970 (NSW) in respect of the decision of the first and second respondent dated 14 August 2009 in CARS matter number 2009/12/1656 and the decision of the first and third respondent dated 2 July 2009 in CARS matter number 2009/15/0752.

3 The trial judge erred in the construction and interpretation of ss.81, 72 and 92 of the Motor Accidents Compensation Act (NSW) and erred in failing to find that the second respondent had so erred and the second respondent's decision was vitiated and of no effect by reason of jurisdictional error, noting the appellant does not challenge the trial judge's determination that s.73(3)(c) of the Motor Accidents Compensation Act 1999 (NSW) applies to applications for exemption pursuant to ss.92(1)(a) and 92(1)(b) of the Motor Accidents Compensation Act 1999 (NSW).

4 The trial judge erred in failing to find that the third respondent had taken into account irrelevant considerations and/or made a decision that no reasonable decision maker could have made, and was vitiated and of no effect by reason of jurisdictional error, in respect of s.73 of the Motor Accidents Compensation Act 1999 (NSW) in respect of the decision as to whether the appellant had provided a satisfactory explanation for the delay in making the claim, noting that the appellant does not challenge the decision that the appellant had provided a full explanation for the delay in making the claim.

39 NRMA relies on the following grounds in its notice of contention:

1 In the decision below, Gudelj v Motor Accidents Authority (2010) 55 MVR 357; [2010] NSWSC 436 (McDougall J) (14 May 2010), the Primary Judge held at [92] to [105] that the words " certificate of exemption " as they appear in section 73(3)(c) of the MAC Act, include "mandatory" exemption (section 92(1)(a) of the MAC Act) and "discretionary" exemption (section 92(1)(b) of the MAC Act). Accordingly, a claimant who has made a late claim, which has been rejected on a special assessment, may apply for a discretionary exemption of the claim.

2 In its Cross-Appeal, the Fourth Respondent submits that the Primary Judge erred in this construction, and that only mandatory exemption is contemplated by section 73(3)(c) of the MAC Act.

3 In the alternative, the Fourth Respondent contends that, if section 73(3)(c) contemplates both mandatory and discretionary exemption, as the Primary Judge found, and an application by the claimant for discretionary exemption fails (as it was bound to do in the present case), then on a proper construction of the word " only " in section 73(3)(c) the claim cannot proceed to a general assessment under the CARS system, and is effectively at an end.

4 The Fourth Respondent contends that the decision of the Primary Judge at [117-8] to dismiss the Applicant's Summons, is supported by the construction of section 73(3)(c) set out in Ground 3 above.

40 NRMA also put on an application for leave to cross-appeal, relying essentially on the same grounds as in the notice of contention, but it did not pursue any cross-appeal.

Ms Boyle's decision

41 Mr Romaniuk for the applicant relied on the same submissions as before the primary judge; that is, that the reasoning of Ms Boyle was vitiated by plainly unsound assertions in pars 17 and 22 of her reasons.

42 In my opinion, Ms Boyle's reasoning in pars 18 to 21 is sound; and if that reasoning is considered apart from pars 17 and 22, there could be no possible basis for judicial review of the evaluative judgment expressed in those paragraphs.

43 In my opinion, par 17 is suggestive of error, in that there is no inconsistency in the applicant asserting ignorance of his rights (and in particular, ignorance of time limitations for their assertion) and his failure to pursue the matter because of a belief that his injuries would resolve. However, in my opinion, that paragraph was not relied on to any extent by Ms Boyle as giving support to her sound reasoning in pars 18 to 21.

44 Paragraph 22 is also suggestive of error: the mere fact of the applicant being a spray painter in the automotive industry would not support rejection of his assertion of ignorance of his rights and obligations concerning motor accident claims. However, this was not asserted as in any way supporting the finding previously made in pars 19 and 20 that a reasonable person in the applicant's position would have sought legal advice earlier.

45 Accordingly, the challenge to the primary judge's decision concerning Ms Boyle's decision fails.

Ms Cassidy's decision

46 This aspect of the appeal turns essentially on whether there was a notice by NRMA denying liability or whether NRMA is taken to have given such a notice, pursuant to s 81(3). Otherwise, the question of whether or not s 73(3) extends to exemptions under s 92(1)(b) does not make any difference.

47 Mr Romaniuk submitted that the primary judge was in error in holding that the duty under s 81(1) did not arise in this case on the ground that there was no "notice of the claim under s 72" within the meaning of those words in s 81(1), because the applicant's claim was not made within six months as required by s 72.

48 Mr Rewell SC for NRMA submitted that there could not be a duty under s 81(1) in cases where the insurer has rejected a claim for being late; and that s 81(3) only operates where there is failure to comply with the section, that is, where there has been a breach of the duty in s 81(1). He contended that this was supported by the consideration that the Act was amended following the Hayek decision, in order to deal with a mischief disclosed in that case.

49 In my opinion, resolution of this question is assisted by taking an overview of the scheme of the Act, particularly in the light of the decision in Hayek and the amendments following that decision.

50 Hayek , like the present case, concerned a claim made outside the six month period prescribed by s 72(1) of the Act. As in this case, the claimant applied for a special assessment under s 96 of the Act on the question whether a late claim could be made; and as in this case the CARS assessor determined that it could not be, because the claimant had not provided a full and satisfactory explanation of the delay. The claimant then brought court proceedings to enforce her claim.

51 The District Court judge dismissed the proceedings, inter alia on the ground that the claimant did not have a full and satisfactory explanation for the delay. However, the Court of Appeal said that it was not open to the judge to dismiss the proceedings on that basis, because in that case (unlike this case) the insurer had lost the right to challenge the claimant's claim on the ground of delay. Nevertheless, the Court of Appeal held that the proceedings were correctly dismissed, because s 108 had not been complied with: the certificate issued in respect of the s 96 determination was held not to be a certificate under s 94, so as to satisfy s 108(1)(b).

52 In Hayek , that was not the end of the claimant's claim. Ipp JA (with whom Mason P and McColl JA agreed) said this:

[64] Mr Semmler submitted that, unless a certificate relating to the assessment of a dispute under s 96(1), and issued in accordance with the machinery provided by s 94, is regarded as a certificate that satisfies s 108(1)(b), a party dissatisfied with the findings of the assessor reflected in such a certificate would have no right to take court proceedings to challenge the certificate in question. I accept that, were that to be correct, it would not be a desirable result.

[65] For the reasons I have explained, however, an assessment of a dispute as to a matter set out in ss 96(1)(a), (b) and (c) is not binding on the parties as such an assessment does not relate to the duties of the parties under Pt 4.3 with respect to the claim.

[66] The matters that are the subject of ss 96(1)(d) and (e) are tangential to the principal issues that would arise between the parties and do not raise matters of substance. The fact that those matters might be binding on the parties does not give rise to concern.

[67] Thus, in my view, a claimant, who has received an unfavourable certificate under s 96(1)(a), is entitled, thereafter, so long as the claim is not exempt from assessment, to require the claims assessor to make an assessment of the issue of liability (unless the insurer has accepted liability - see s 94(1)(a)) and the amount of damages for that liability, and to issue a certificate as to the assessment under s 96(4). The claimant, thereafter, would be entitled to commence court proceedings (despite the unfavourable s 96 certificate). That is because that certificate is not binding on the parties. On that basis, a main plank of Mr Semmler's argument disappears.

53 The reference in par [67] to "a certificate as to the assessment under s 96(4)" is plainly a typographical error for "a certificate as to the assessment under s 94".

54 This course was open because of the then form of s 73:

73 Late making of claims

(cf s 43A MAA)

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

(2) Evidence as to any delay in the onset of symptoms relating to the injury suffered by the injured person as a result of the motor accident may be given in any such explanation.

(3) This subsection applies if the late claim is made.

(a) If, within 2 months after receiving a late claim for which no explanation for delay is provided, the insurer does not reject the claim or ask the claimant to provide a full and satisfactory explanation for the delay in making the claim, the insurer (and the person against whom the claim is made) lose the right to challenge the claim on the ground of delay.

(b) If, within 2 months after receiving an explanation for delay in the making of a late claim, the insurer does not reject the explanation, the insurer (and the person against whom the claim is made) lose the right to challenge the claim on the ground of delay.

(c) If court proceedings are commenced in respect of a late claim, an insurer (or the person against whom the claim is made) may apply to have the proceedings dismissed on the ground of delay only within 2 months after the statement of claim is served on the defendant and received by the insurer. The insurer (or the person against whom the claim is made) may apply to have the proceedings dismissed on the ground of delay only if the insurer (or the person) has not lost the right to challenge the claim on the ground of delay.

(4) A court must dismiss proceedings commenced in respect of a late claim if the court is satisfied that the claimant does not have a full and satisfactory explanation for the delay in making the claim.

55 Following this decision, s 73 was amended to its present form.

56 The effect of the decision in Hayek was that, under the legislation as it stood, a s 96 determination of whether a late claim could be made had no effect. On a late claim, a reference for assessment under s 94 would be made and would proceed in the same way, whether such a s 96 determination was made or not, and (if it was) whichever way it went. If court proceedings ensued, and the insurer applied in time to have the proceedings dismissed because of lateness, the court would have to decide the question in any event.

57 It is clear that the amendment to s 73 was intended to have the effect that, where an insurer has not lost the right to reject a late claim, and there has been a s 96(1)(a) determination adverse to a claimant, the matter does not proceed to assessment under s 94. The question is, did it have the effect that, in those circumstances, a claimant will be prevented from having the issue of whether the claimant has a full and satisfactory explanation for the delay (s 73(7)) determined by the court (at least unless the claim falls within one of the exceptional categories in cls 8.11.3 to 8.11.6, cls 14.16.2 - 14.16.7 or 14.16.9 - 14.16.11 of the Guidelines).

58 There are strong indications that it was not intended to have that effect:

(1) Section 96(4) provides that a s 96 determination is binding on the parties to the extent that it relates to duties under Pt 4.3: if an adverse determination under s 96(1)(a) prevents a claimant having the matter determined by the court, it is effectively binding on the claimant (though not on the insurer) for all purposes.

(2) Section 73(7) would allow the insurer, but not the claimant, to escape from an adverse s 96(1)(a) determination.

(3) This would not sit well with s 95(1), which asserts that "An assessment under this Part of the issue of liability for a claim is not binding on any party to the assessment" (s 96 is within "this Part", that is, Part 4.4), which conveys that all issues that go to the question of the liability of an insurer to meet a claim should be justiciable in a court.

59 The question whether an adverse s 96(1)(a) determination does have the practical effect of putting an end to the general run of late claims depends mainly on the correct construction of s 81.

60 The first question is whether "gave notice of the claim under s 72" in s 81(1) only applies where the notice is given within six months after the relevant date, as required by s 72. The primary judge held that it does. In my opinion, it does not, for the following reasons.

61 A claim can be subject to rejection by an insurer because of non-compliance with the police accident report requirement (s 70), non-compliance with the time limit for making a claim (s 72) or for non-compliance with requirements as to form (s 74); but in each case, the insurer's right to reject the claim can be lost (ss 70(4), 73(4), 76(2)). If the insurer's right to reject the claim is lost, then plainly the claim is to proceed as if there had been no such non-compliance.

62 In my opinion, this means that a notice of a claim may in those circumstances be effective, even if it has any or all of the defects referred to in the previous paragraph. It must still, of course, be identifiable as a "notice", given to the person specified in s 72(2), of "a claim", that is, of a claim as defined in s 3 of the Act: this would require at least adequate identification of the claimant and of the accident in respect of which the claim is made, but not necessarily compliance with ss 70, 72 or 74.

63 In those cases, the duty in s 81(1) would apply, at least if the defects were those flowing from s 70 and/or s 74, because there is nothing in s 81(1) to suggest otherwise. The only basis for saying that the duty would not apply if the defect was that in s 72(1) arises from the words "under s 72" in s 81(1). However, in my opinion those words are not apt to limit the duty to cases where the six month limit in s 72(1) has been complied with: this would draw an illogical distinction between defects arising from s 72(1) and those arising from s 70 and s 74; and in any event, the words in question are apt to refer to s 72(2) rather than to the time limit in s 72(1).

64 A further compelling reason for this conclusion is that s 72(1) does not need to be complied with when "the claimant provides a full and satisfactory explanation for the delay in making the claim": s 73(1). I do not think s 81(1) discloses any intention that an insurer should have no duty in circumstances where there is a late claim and the requirements of s 73(1) are satisfied.

65 This then leads to the second question: if there is a notice given to an insurer, and the insurer does reject it on the ground of delay (or of non-compliance with s 70 or s 74), does the insurer still have the duty referred to in s 81(1)?

66 There is nothing in the wording of s 81(1) which suggests otherwise. The only reason for suggesting that the insurer does not have the duty is that it might seem superfluous for the insurer both to reject the claim and also to give notice whether the insurer admits or denies liability for the claim. In those circumstances, clearly the insurer is not admitting any liability (noting that admission of any liability immediately triggers obligations of the insurer to make a reasonable offer of settlement under s 82 and to make medical payments under s 83).

67 In my opinion the insurer does have the duty referred to in s 81(1), even in respect of a claim that is defective by reason of non-compliance with s 70, s 72 and/or s 74, and even if the insurer has not lost the right to reject the claim for that reason and/or has actually rejected it. Where, as in this case, the insurer has rejected the claim, and has not otherwise given the written notice required by s 81(1), two alternative analyses are open:

(1) to hold that a written rejection of a claim itself counts as a written notice denying liability for the claim; or

(2) to hold that there has been a breach by the insurer of its duty under s 81(1), and thus a breach of the condition of its licence imposed by s 81(5), albeit that this breach might be treated as de minimis .

68 Neither party in these proceedings wholeheartedly embraced the first alternative. Mr Rewell for the respondent submitted that a written rejection of a claim was not a written denial of liability; and Mr Romaniuk for the applicant did not advance any substantial submissions to the contrary. However, where the construction of a statute is in issue, in my opinion, subject to questions of natural justice, the Court is not bound by the submissions of the parties. In this case, in my opinion, there is no issue of natural justice: the issue was raised (see appeal transcript pp 4 and 39), and in any event, the result of this appeal is the same whichever view is taken.

69 One consideration against the first alternative is that cl 8.11.1 of the Guidelines refers to denial by an insurer of "the fault of the owner or driver of a motor vehicle in the use or operation of the vehicle ... in its written notice issued in accordance with s 81". However, that cannot govern the interpretation of s 81(1); and in any event, plainly a written notice denying liability may do so for other reasons, such as that there was no "injury" within the definition of injury in the Act (cf Allianz Australia Insurance Limited v GSF Australia Pty Limited [2005] HCA 26; (2005) 221 CLR 568, Zotti v Australian Associated Motor Insurers Limited [2009] NSWCA 323). Denial of liability on that ground would not deny fault, yet would plainly satisfy s 81(1). I see no reason why denial of liability on the basis of a defect in the claim should not also satisfy s 81(1).

70 Accordingly, I find the first alternative preferable. But if that were wrong, I would adopt the second alternative, so that in this case, s 81(3) applied and the NRMA is taken to have given notice to the appellant wholly denying liability for the claim. Although this would have the unpalatable consequence that NRMA would be in breach of a condition of its insurer's licence, the reasons I have given satisfy me that the s 81(1) duty did arise in this case.

71 The question then is, would this provide a basis on which the applicant would be given a certificate under s 92. It would not fall within cl 8.11.1 of the Guidelines because it is not a denial of fault; but then neither would a denial of liability on the Allianz ground. Nor would it fall within any other part of cl 8.11. If the second alternative is correct, it would fall within cl 14.16.8 as a deemed denial of liability; but if the first alternative is correct, it would not. However, the list in cl 14.16 is not exhaustive, and an actual denial of liability would surely provide as strong a ground for a certificate of exemption as a deemed denial. Accordingly, whichever of the two alternatives is accepted, there were grounds on which a certificate of exemption could have been issued under s 92(1)(b).

72 This would not avail the applicant unless the primary judge was correct to hold that s 73(3)(c) extends to cases where a case is referred with a view to obtaining a certificate under s 92(1)(b), not just under s 92(1)(a).

73 The Guidelines distinguish different types of reference: see cl 2.1, and chs 9 and 10, which distinguish between applications for a certificate of exemption under s 92(1)(a), and applications for general assessment under s 94, in which, on a preliminary assessment, an assessor may determine that the claim is not suitable for assessment under s 92(1)(b). However, in my opinion, for reasons given by the primary judge, this is not sufficient to restrict s 73(3)(c) to applications of the former type. If there are grounds for determining that a claim is not suitable for assessment, which are not within cl 8.11, and a claimant under an application for general assessment seeks that determination, in my opinion that is a referral for assessment "for a certificate of exemption under Pt 4.4" within s 73(3)(c).

74 The final question is whether the primary judge erred in holding that the error of Ms Cassidy in limiting s 73(3)(c) to s 92(1)(a) cases did not vitiate her conclusion.

75 I have already held to the effect that the primary judge was in error in par [104] in holding that s 81(1) did not apply to NRMA, because of the lateness of the applicant's claim. In my opinion, this does undermine the primary judge's assessment that there was no reason to remit the matter to Ms Cassidy. There was in my opinion either a deemed denial of liability (satisfying cl 14.16.8) or an actual denial of liability (which should be as good a reason for exemption as a deemed denial, within the general words of cl 14.16).

76 On the question whether an exemption certificate should be granted, this would be a matter for Ms Cassidy. However, consistently with what I said before, I note the following:

(1) one of the objectives of the Act is "to provide compensation for compensable injuries sustained in motor accidents": s 5(1)(b);

(2) another is "consistent and stable application of the law" (s 5(2)(c)(iv)), which is best achieved when significant decisions are subject to consideration by the courts;

(3) the circumstance that s 96(1)(a) determinations are said to be binding only for the purposes of duties under Pt 4.3; and

(4) the circumstance that assessments on liability are said to be not binding on any party: s 95(1).

77 All of these considerations suggest that the intention of the legislature was that claimants could, as a last resort, have recourse to the courts to determine their rights; that claimants should generally not be shut out of an arguable claim before the courts by reason of a s 96(1)(a) assessment; and accordingly that there could be a reasonable decision in this case to grant the certificate.

78 In my opinion, the error of law by Ms Cassidy is sufficient to justify a review under s 69 of the Supreme Court Act 1970; and the appropriate remedy is to quash her decision and remit it to her for further consideration.

Conclusion

79 For those reasons, in my opinion, the following orders should be made:

(1) Leave to appeal granted to the applicant.

(2) Notice of Appeal to be filed within fourteen days.

(3) Appeal allowed and orders below set aside.

(4) Order in the nature of certiorari setting aside and quashing the decision of Ms Cassidy dated 14 August 2009 in CARS matter No 2009/12/1656, and setting aside the certificate of Ms Cassidy of the same date.

(5) An order in the nature of mandamus that the Motor Accidents Authority of New South Wales exercise its power in that CARS matter according to law.

(6) Order that NRMA pay the applicant's costs of the proceedings below.

(7) Order that NRMA pay the applicant's costs of the appeal.

(8) NRMA's application for leave to cross-appeal dismissed.

80 HANDLEY AJA: I agree with Hodgson JA.

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Decision last updated: 27 June 2011