Norrington v QBE Insurance (Australia) Ltd

1. [1]

   The plaintiff Donna-Leigh Norrington was involved in a motor vehicle accident on 10 June 2014 (“the accident”), as a result of which she claims to have incurred injuries to her cervical and lumbar spine, her left and right shoulders, and her right hand. The first defendant QBE Insurance (Australia) Ltd (“the insurer”) is the CTP insurer of the vehicle at fault. Because there was a dispute as to whether her degree of permanent impairment exceeded 10% (for the purposes of (NSW) Motor Accidents Compensation Act 1999 (“MACA”), s 58(1)(d)), the insurer applied for an assessment, and the matter was referred to the State Insurance Regulatory Authority (“SIRA”) Medical Assessment Service (“MAS”). On 31 July 2019, the plaintiff was assessed by Assessor Crowle, who on 18 August 2019 issued a certificate determining that the plaintiff had suffered soft tissue injury to the cervical spine, lumbar spine, and left shoulder, which were causally related to the accident but had since resolved; that the plaintiff’s soft tissue injury to the right shoulder and right hand were not causally related to the accident; and that the plaintiff’s whole person impairment which was causally related to injuries sustained in the accident was 0%.

2. [2]

   On 1 October 2019 the plaintiff applied for a review of the assessment, to which the insurer responded, opposing the application, on 31 October 2019. On 20 November 2019, a Proper Officer for the MAS accepted the application and referred the matter to the MAS Review Panel. On 17 August 2020, the plaintiff was examined by the Review Panel, comprising Assessors Gibson, Gray, and Crane. On 21 August, the Review Panel issued a certificate to the effect that the plaintiff’s right shoulder, left shoulder, and right hand soft tissue injuries were not causally related to the accident; and that while her soft tissue injuries to the cervical and lumbar spine were related to the accident, they had resolved; with the consequence that there was a whole person impairment of 0% causally related to injuries sustained in the accident.

3. [3]

   By summons filed on 12 November 2020 (and amended at the outset of the hearing, as result of legislative amendments which commenced with effect from 1 March 2021, to nominate the Personal Injuries Commission as the entity to which the matter would be remitted), the plaintiff claims orders in the nature of certiorari and mandamus, and alternatively declaratory relief, in respect of the decision of the Review Panel. The plaintiff contends that the decision involved jurisdictional error and/or error of law on the face of the record, and in particular:

   1. (1)

      jurisdictional error in that with respect to the assessment of the left shoulder injury and its causation, the panel impermissibly treated the absence of a report of such injury in the contemporaneous medical records as determinative;

   2. (2)

      constructive failure to exercise jurisdiction (and/or denial of procedural fairness) by failing to respond to a substantial and clearly articulated argument advanced on behalf of the plaintiff with respect to the left shoulder injury and its causation;

   3. (3)

      failure to give proper reasons for the decision in relation to the left shoulder injury; and

   4. (4)

      making findings as to the nature and severity of the collision without evidence.

4. [4]

   By its amended response, the insurer denies that there was any such jurisdictional error, denial of procedural fairness, or other error of law; contends that the decision was open to the Review Panel on the material before it; and contends that any error was not jurisdictional as it did not affect the decision, or alternatively that relief should be declined on the basis that the error was not material.

The statutory provisions

1. [5]

   MACA, s 58(1)(d), provides that Part 3.4 applies to a disagreement between a claimant and an insurer about whether the degree of permanent impairment of the injured person as a result of the injury caused by the motor accident is greater than 10%. Section 61(2) provides that the certificate of a medical assessor to whom a medical dispute is referred is conclusive as to the matters certified. Section 61(9) requires the certificate to set out the assessor’s reasons for any findings as to any matters certified in respect of which the certificate is conclusive evidence.

2. [6]

   Section 63(1) provides that a party to a medical dispute may apply for an assessment to be referred to a review panel. Former sub-s (3) provided that any such application was to be referred to a review panel, but only if the proper officer was satisfied that there was reasonable cause to suspect that the assessment was incorrect in a material respect. [1] By current sub-s (3), a review panel is constituted by three assessors, being two medical assessors and one member of the Commission. Subsection (3A) provides:

3. [7]

   By sub-s (4), “[t]he review panel may confirm the certificate of assessment of the single medical assessor, or revoke that certificate and issue a new certificate as to the matters concerned.” Subsection (6) provides that s 61 applies to any new certificate issued under s 63.

4. [8]

   By s 131, “[n]o damages may be awarded for non-economic loss unless the degree of permanent impairment of the injured person as a result of the injury caused by the motor accident is greater than 10%.” Section 132(1) provides that if there is a dispute in that respect, there is to be an assessment. As to that, s 133 provides:

Dr Cossetto’s report

1. [9]

   The plaintiff’s response to the application for assessment, dated 23 April 2019, was supported by a report dated 15 October 2018 of Dr Cossetto, orthopaedic surgeon, who had treated the plaintiff prior to the accident, and was again consulted by her some years after the accident. His report states that he first saw the plaintiff in 2007, for a right shoulder problem; at review on 19 December 2007, it was noted that she had also developed a burning-type discomfort in her left shoulder girdle, associated with pain on both sides of the neck radiating down, although on examination, “the left shoulder girdle also exhibited a good painless range of motion”. An MRI of her left shoulder, performed on 8 March 2008, showed partial thickness tearing of the supraspinatus tendon. On examination and questioning on 24 April 2008, it was apparent that she was being troubled by left shoulder medial periscapular discomfort which concurred with some palpable soft tissue crepitus present in that area with scapular motion. On examination of her left shoulder that day, she had a “full non-irritable range of motion of the glenohumeral joint and there was no tenderness in the left shoulder subacromial space”.

2. [10]

   Dr Cossetto next saw the plaintiff on 1 August 2018, over ten years later, and four years after the accident. She described having been involved in a motor vehicle accident in 2014 and having sustained injuries to her neck and left shoulder, with ongoing left shoulder girdle discomfort which had been managed conservatively with cortisone injections, but they had provided no relief. On examination, there was a painful abduction arc and positive impingement signs. She was referred for an MRI, which showed the presence of a rotator cuff tendinopathy. He diagnosed a left shoulder subacromial impingement, for which he recommended surgery. He reported:

3. [11]

   Accordingly, this report provided the following evidence:

   1. (1)

      expert opinion, supported by MRI, of the absence of a left shoulder subacromial impingement in 2008;

   2. (2)

      expert opinion, supported by MRI, of the presence of a left shoulder subacromial impingement in 2018; and

   3. (3)

      expert opinion that the left shoulder subacromial impingement seen in 2018 was a “post-traumatic left shoulder subacromial impingement syndrome”.

The first assessment

1. [12]

   Assessor Crowle recorded that the accident was apparently a high impact collision occurring on a section of road that had a 100km/h limit, with successive collisions, in the course of which the plaintiff reached out with her left arm to protect her daughter; the car was written off and police, ambulance, and SES attended.

2. [13]

   Assessor Crowle concluded that while the plaintiff attributed her left shoulder pain to the accident, she preferred the contemporaneous documentation. Later, the assessor observed:

3. [14]

   However, given that there was no treatment of the shoulder until the following year, she concluded that it had resolved.

The review application

1. [15]

   In support of the application for review, the plaintiff submitted that it was not open to the assessor to conclude that the injuries to the left shoulder had resolved, when the assessor had not asked the plaintiff relevant questions as to whether she had ongoing symptoms, and no proper history of the pre- and post-accident period had been obtained. Further, founded on Dr Cossetto’s report, it was argued that the assessor should have found that the plaintiff had a post-traumatic left shoulder subacromial impingement syndrome. The application was supported by a statement of the plaintiff dated 30 September 2019, in which she stated that the pain and significant restriction of movement in her left shoulder dated from the accident.

2. [16]

   The proper officer decided that there was reasonable cause to suspect that the medical assessment was incorrect in a material respect. The reasons for that conclusion included:

3. [17]

   The Review Panel decided that an examination of the plaintiff was required, and requested further information, and submissions on the following issues:

4. [18]

   In response, the plaintiff’s submissions addressed a number of issues, not all of which are relevant for present purposes, but they included:

   1. (1)

      that the panel members were not reconstruction or accident experts and should not be drawing conclusions from photographs of the accident;

   2. (2)

      as to the severity of the collision, attention was drawn to the history obtained by Assessor Crowle, as summarised above, including that it was in a 100km/h zone, there were two impacts because it was a multi-car collision, and that the plaintiff had instinctively reached out with her left arm to her daughter, who was sitting in the passenger’s seat adjacent to her;

   3. (3)

      that causation of the left shoulder injury was supported by the report of Dr Cossetto, as summarised above. In particular, it was emphasised that prior to the accident there were no signs of a left shoulder subacromial impingement. A supplementary report of Dr Cossetto was provided, in which he confirmed that there was no evidence that falls in 2014, 2016, and 2017, nor a subsequent motor vehicle accident in December 2017, led to any significant injury to the left shoulder girdle.

The Review Panel decision

1. [19]

   Part 1 of the Panel’s reasons, headed “Review Details”, included (as Part 1C) a list of “Documentation and Other Material Reviewed”. Part 2 identified the “Assessment under Review”, and “Disputes identified by the Parties”. Part 3 was headed “Matters Considered and Decided by the Panel”. In Part 3A, the Panel stated that they had “considered all of the available evidence and decided that a re-examination … was necessary in order to reach a decision, because there was concern expressed by the claimant that an adequate history had not been obtained from the claimant by the Assessor.” Then, in Part 3B of the reasons, headed “Additional Evidence”, under the subheading "Pre-Accident Medical History", reference is made to a previous right shoulder injury, but not at this point, though there is later, to any antecedent left shoulder problem. Under "History of the Accident", it is recorded that the plaintiff’s car was “rear-ended by another car”; that her car was “apparently not driveable after the accident and was written off”; that police, ambulance and emergency services attended; but that she said that she was not assessed by the ambulance and was taken home by a friend. There is no reference to the matters referred to in the supplementary submission about the severity of the accident and the fact that it involved two impacts apparently at high speed; nor to the plaintiff’s use of her left arm to protect her daughter.

2. [20]

   Under the subheading "History of Symptoms and Treatment Following the Motor Accident", the Panel attributes to the plaintiff the following recollection:

3. [21]

   The Panel then recorded:

4. [22]

   Under the subheading “Current Symptoms”, it was observed that “[t]he claimant noted that the main problem which she considered resulted from the accident was constant pain in the left shoulder.” The panel must have inquired about the absence of any contemporaneous record, as it noted:

5. [23]

   Under “Current and Proposed Treatment”, the Panel stated that orthopaedic surgeon Dr Cossetto:

6. [24]

   The reasons then deal with the clinical examination of the cervical spine, the lumbar spine, and the upper extremities, in which respect it was said that “[t]he left shoulder was showing some signs of impingement with tenderness anterolaterally”. There were four repetitions of measurements of the range of motion of each of the right and left shoulders, each in six planes. The panel observed that “[t]he restricted range of motion of the shoulders was inconsistent”, and that the plaintiff attributed the restricted movements to “shoulder discomfort, without neck complaints.”

7. [25]

   In Part 3C of the reasons, headed “Panel Deliberations”, the Panel dealt first with the "Cervical spine", and under the subheading "Causation", “noted there had been no immediate pain in the neck following the accident, with this not occurring until some 30-45 minutes later”, and stated "[i]t was considered from the description of the accident that the rear end collision was a low impact one, but may have caused some cervical spine soft tissue injury which would have been expected to resolve within a matter of days or weeks”. Under “Impairment”, it was stated “[h]aving considered the soft tissue injury would have resolved as noted above, the examination findings did indicate a DRE Category I which would have been 0% whole person impairment, had this been considered as an ongoing problem following the MVA”.

8. [26]

   Under the heading "Lumbar spine”, the panel was again of the opinion that "a simple rear-end collision may have caused a transient soft tissue injury to the lumbar spine”, which “would have been expected to have resolved within a matter of days or weeks”, and stated that “had there been an assessment of impairment on the clinical findings of DRE Category I which would have been 0% WPI.”

9. [27]

   Then, turning to the left shoulder, the Panel concluded (emphasis added):

10. [28]

    The Panel added (emphasis added):

Jurisdictional error

1. [29]

   The plaintiff’s principal contention in this Court was that the Review Panel committed jurisdictional error by treating the absence from the medical records of any complaint of a left shoulder injury for nine months after the accident as dispositive, thereby failing properly to discharge their statutory function to ascertain causation.

2. [30]

   It is well established that jurisdictional error includes a constructive failure to exercise jurisdiction, which occurs when a decision-maker misunderstands the nature of its jurisdiction and, in consequence, applies a wrong test, misconceives its duty, fails to apply itself to the real question to be decided, or misunderstands the nature of the opinion it is to form. [2]

3. [31]

   In the context of medical assessment under MACA, there is now a substantial body of authority that a panel which decides the question of causation solely on the basis of the existence or otherwise of contemporaneous evidence of complaint of injury fails properly to address the questions posed by s 58(1), and that this is jurisdictional error. In AAI Ltd (t/as GIO (as agent for the Nominal Defendant)) v McGiffen, the Court of Appeal said (emphasis added): [3]

4. [32]

   The cases show that while the presence or absence of a contemporaneous record of a complaint is relevant in this context, it must not be treated as conclusive of the question of causation, not least because it is possible that causation may exist without a documented contemporaneous complaint. In Owen v Motor Accidents Authority (NSW), Campbell J said: [4]

5. [33]

   In Bugat v Fox (“Bugat”), R S Hulme AJ said: [5]

6. [34]

   In Robson v QBE Insurance (Australia) Ltd, Wright J said: [6]

7. [35]

   In that case, although the review panel referred to substantial other evidentiary material, this did not cure the problem that they treated the absence of documented contemporaneous complaint as decisive.

8. [36]

   In Fraser v AAI Ltd t/as GIO as agent for the Nominal Defendant, Campbell J said: [7]

9. [37]

   The insurer invoked decisions which expressed the view, acknowledged by R S Hulme AJ in the passage cited above from Bugat, that a panel's reasons should not be subjected to "minute and detailed textual criticism in the hope of finding something on which to base an argument". Thus, in Allianz Australia Insurance Limited v Motor Accidents Authority of NSW, Sully J said: [8]

10. [38]

    In Bradley v Insurance Australia Ltd (t/as NRMA Insurance) (“Bradley”), Adamson J provided a helpful description of the function of a review panel and comparison of what might be expected of such a panel as contrasted with a court considering a question of causation: [9]

11. [39]

    Bradley shows that an assessor, and a review panel, is entitled to give weight to contemporaneous records. On the particular facts, it was found – as explained in the passages cited above – that the panel had undertaken a careful process of reasoning which involved consideration of material other than the contemporaneous clinical notes. The decision does not detract from the proposition that it is erroneous to treat the absence of contemporaneous clinical record of a complaint as decisive.

12. [40]

    It is not in doubt that an assessor, and a review panel, is entitled, in deciding the question of causation, to consider, and to give weight to, contemporaneous medical records. The absence of any record of a complaint of particular symptoms following and accident might be a powerful indicator that a particular injury was not associated with the accident. On the other hand, it is not decisive: there are many reasons why a complaint might not be made, or recorded, promptly following an incident.

13. [41]

    Here, the question is whether the Review Panel (permissibly) gave weight to the absence of a contemporaneous record of left should injury, or (impermissibly) considered that the absence of such a record was of itself decisive and meant that the plaintiff’s claim could not succeed. I approach this on the basis that the latter conclusion is not lightly to be reached, and that the Panel’s reasons are not to be construed "minutely and finely with an eye keenly attuned to the perception of error", but are to be given what has been referred to as a "beneficial construction".

14. [42]

    The Panel’s reasons refer on four occasions to the absence of any clinical record of left shoulder symptoms. First, in response to the history obtained from Ms Norrington that “immediately after the accident, there was no complaint of any symptoms but some 30-45 minutes after the accident, Ms Norrington noted the onset of central low back pain and pain in the left shoulder, that she described as ‘agony’ in the left shoulder and low back”, the Panel proceeded to record that while there were GP records of a number of consultations following the accident noting problems with the neck and right shoulder, “it was not until March 2015 that there was a specific entry concerning a complaint of chronic left shoulder pain with reduced range of motion.” Further, the Panel noted that “Ms Norrington did not understand why there was no specific mention of problems with the agonising pain in left shoulder in the GP notes until some nine months after the accident.” Secondly, it offered as its reason for disagreeing with Dr Cossetto that “there was no documentation of left shoulder symptoms until March 2015, with pre-accident intermittent left shoulder symptoms." Thirdly, in finding that causation of the left shoulder injury was not established, the Panel observed that there was no documentary evidence of injury to the left shoulder from the medical records until nine months after the accident, adding (emphasis added) “[i]n the absence of confirmatory documentary evidence, the Panel was therefore unable to accept causation of injury to the left shoulder resulting from the accident”. Fourthly, in expressing its disagreement with the assessor’s acceptance that there had been a soft tissue injury to the left shoulder, the reason given was that (emphasis added) “the Panel considered the nine-month delay before any medical documentation concerning injury to the left shoulder appeared. This was therefore not causally related to the accident.”

15. [43]

    When read as a whole, these passages bespeak an approach in which the absence of a contemporaneous clinical record of left shoulder symptoms was treated as decisive. The passages italicised in the preceding paragraph explicitly say as much. By those passages, the Panel have stated that they regarded the perceived absence of a contemporaneous documented complaint as conclusive of the question of causation.

16. [44]

    Moreover, except for the perfunctory statement that they disagreed with Dr Cossetto’s opinion, because there “was no documentation of left shoulder symptoms until March 2015, with pre-accident intermittent left shoulder symptoms”, the Panel’s reasons contain no reference to the plaintiff’s submission, advanced by reference to Dr Cossetto’s report, that there was radiological evidence of a relevant change in her shoulder condition between 2008 and 2018, resulting in a diagnosis of post-traumatic left subacromial impingement syndrome. Although the Panel referred to “pre-accident intermittent left shoulder symptoms”, it did not advert to Dr Cossetto’s evidence that not only had these resolved before the accident, but that they were unrelated to the left subacromial impingement diagnosed on MRI post-accident. The plaintiff characterises this as a failure to address a substantial and clearly articulated argument advanced on her behalf, but it also illustrates and confirms a failure properly to conceive and address the question of causation, beyond whether there was a contemporaneous record of complaint.

17. [45]

    Save to the extent that they were incorporated under the description “6. Additional document/s accepted by MAS from Chadwick Lawyers dated 7 February 2020” in the list of “Documentation and Other Material Reviewed” at Part 1C, there is no reference to the plaintiff’s statement of 30 September 2019, in which she stated that the pain and significant restriction of movement in her left shoulder dated from the accident. Nor is there any statement to the effect that they disbelieved the plaintiff when she gave the Panel a history that she recalled pain in the shoulder 30-45 minutes after the accident. There is nothing to indicate that consideration was given to reasons why a complaint of pain in the shoulder might not have been documented until nine months after the accident. The consistent and repeated theme is that the passage of nine months after the accident before there was a documented report of left shoulder pain precluded a finding of causation.

18. [46]

    It might well be that a Review Panel, performing their task lawfully, could provide valid reasons for disagreeing with Dr Cossetto and for thinking that the changes apparent on MRI are unrelated to the accident, and for concluding that having regard to, inter alia, the absence of any recorded contemporaneous complaint, causation was not established. But all that appears in this case is that the passage of nine months after the accident before there was a documented complaint of left shoulder symptomatology was treated as conclusive of the question of causation. In substance, the Review Panel, addressed only whether there was contemporaneous documented complaint of injury to the left shoulder, and did not address the actual question posed by s 58(1)(d), namely what was the degree of the plaintiff’s permanent impairment as a result of the injury caused by the accident. The Panel did not consider whether, notwithstanding the absence of a reported complaint, the plaintiff might have incurred the left shoulder injury, as she claimed, in the accident. It thereby failed properly to exercise its jurisdiction.

Materiality

1. [47]

   The insurer submitted that if error were found, relief should nonetheless be refused, on the basis that it was not shown to be material, as the result would have been no different without the error. This submission derives from the proposition that jurisdictional error involves an error made “in a way that affects the exercise of power”. [10] Adapting the words of Edelman J in Hossain v Minister for Immigration and Border Protection, an error will not usually be material in this sense unless there is a possibility that it could have changed the result of the exercise of power; in other words, materiality will generally require that the error be such as to deprive a person of the possibility of a successful outcome, though there may be exceptions, including where a decision-maker fails to exercise jurisdiction to decide a question according to the applicable criterion. [11] In any case, it suffices that there be a possibility of a different outcome; the plaintiff does not need to establish that the outcome would have been different.

2. [48]

   In addition to the materiality argument, the insurer submitted that relief should be declined as a matter of discretion, because it would be futile.

3. [49]

   Underlying both these arguments was the proposition that, regardless of any error, the plaintiff could not surmount the 10% threshold. In this respect, it has been noted that on clinical examination by the Review Panel, repeated measurements of the plaintiff’s left shoulder range of motion were obtained. The various repetitions conducted by the Review Panel produced a range of upper extremity impairment of 15% to 23%, depending on which repetition is selected. That translates to a whole person impairment of 8% to 14%.

4. [50]

   The insurer submitted that:

   1. (1)

      when assessing the plaintiff’s whole person impairment, the Panel was required to have regard to the Motor Accident Permanent Impairment Guidelines (“PIGs”) [12] and the American Medical Association Guides to the Evaluation of Permanent Impairment (“AMA4”) [13] ;

   2. (2)

      the AMA4 guidelines provide that several repetitions may be performed to obtain reliable results, and that the full range of active motion takes precedence; and

   3. (3)

      adopting the most active measured range of motion in each plane, there was a total 15% upper extremity impairment, which equates to a 9% whole person impairment – below the 10% threshold.

5. [51]

   Clause 1.40 of the PIGs, entitled “Consistency”, provides:

6. [52]

   Clause 1.50, which appears under the heading “Assessment of the upper extremity”, provides:

7. [53]

   As has been noted, the Panel considered that the left shoulder measurements were inconsistent. In those circumstances, the effect of clauses 1.50.4 (read with clause 1.40) and 1.50.5 is that the measurements should not be relied on as a valid parameter, and an assessor should use discretion in considering what weight to give other available evidence to determine if an impairment is present. In this respect, in Brown v Insurance Australia Group Ltd t/as NRMA Insurance Ltd, Adamson J observed: [14]

8. [54]

   For the insurer, it was submitted that the range of motion measurements might still be used; but if so (as was accepted to be permissible, notwithstanding “inconsistency”, in Wellman v CIC Allianz Australia Insurance Ltd [15] ), that does not exclude the possibility that they would not.

9. [55]

   Moreover, the insurer’s submissions depended on the proposition that the most active measured range of motion in each plane would be adopted. However, and contrary to the insurer’s submission, the guidelines do not dictate that “the full range of active motion takes precedence”. The AMA4 guideline is relevantly as follows: [16]

10. [56]

    In that context, it is apparent that the direction that “the range of active motion takes precedence” is to distinguish it from passive motion. It is not a direction that the largest measurement should be adopted. Why one would necessarily adopt the largest measurement rather than, for example, an average of the four, was not explained. In my view, contrary to the insurer’s submissions, the range of measurements elicited in fact demonstrates that there is a possibility that the plaintiff’s upper extremity impairment could be assessed at a level which would translate to a whole person impairment in excess of 10%. Only by adopting the measurements towards the extreme of the range most adverse to the plaintiff would that not be so.

11. [57]

    Even if that were not so, it would not follow that there was no possibility of a different outcome. As Harrison J explained in McHenry v Insurance Australia Limited (t/as NRMA Insurance), it is not possible to say that the grant of relief would be a futility when causation of injury, and whether and if so to what extent the injury has caused permanent impairment, would be matters for fresh consideration, assessment, and determination by a differently constituted review panel: [17]

12. [58]

    It follows that in my judgment the error was material, in the sense that it deprived the plaintiff of the possibility of a successful outcome, and it is by no means apparent that the grant of relief would be futile.

Conclusion and Orders

1. [59]

   My conclusions may be summarised as follows:

2. [60]

   The Panel did not consider whether, notwithstanding the absence of a documented report, the plaintiff might have incurred the left shoulder injury, as she claimed, in the accident. It thereby failed properly to exercise its jurisdiction.

3. [61]

   The error was material in the sense that it deprived the plaintiff of the possibility of a successful outcome, and it is by no means apparent that the grant of relief would be futile.

4. [62]

   My orders are:

   1. (1)

      Order in the nature of certiorari removing into this Court and quashing the certificate issued by the third defendant constituting a Review Panel of the second defendant State Insurance Regulatory Authority, dated 21 August 2020;

   2. (2)

      Order in the nature of mandamus that the Personal Injuries Commission of New South Wales, as successor to the second defendant State Insurance Regulatory Authority, by a differently constituted review panel, consider and determine according to law the review of the assessor’s certificate of 18 August 2019; and

   3. (3)

      Order that the first defendant pay the plaintiff’s costs.