Walpole v Insurance Australia Limited t/as NRMA Insurance

1. [1]

   HER HONOUR: This is a judgment on costs.

2. [2]

   This judicial review that had been listed for hearing came before me today. The parties had agreed that firstly, the decision of Proper Officer Dale Davis of the Medical Assessment Service of the second defendant, made on 28 September 2015 pursuant to s 62 of the Motor Accidents Compensation Act 1999 (NSW) (“the Act”), not to refer the plaintiff for further medical assessment be set aside; and secondly, the matter be remitted to the second defendant for reallocation of the matter to a different proper officer for determination according to law. For this Court to make the above consent order, I had to be satisfied that the proper officer had made a jurisdictional error or error of law that warranted remittal to the State Insurance Regulatory Authority.

3. [3]

   The plaintiff is Julie Walpole. The first defendant is Insurance Australia Limited t/as NRMA Insurance. The second defendant is the State Insurance Regulatory Authority (SIRA) who has filed a submitting appearance.

4. [4]

   On 26 May 2015, the plaintiff filed an application for Further Assessment of Permanent Impairment Dispute by the Medical Assessment Service in accordance with s 62(1)(a) of the Act and cl 14.1 of the Medical Assessment Guidelines of 1 October 2008, disputing the medical assessment of Assessor Assem on the grounds of the deterioration of the injuries and additional relevant information about the injuries.

5. [5]

   After hearing oral submissions this morning, I am satisfied that the proper officer had wrongly applied Henderson v QBE Insurance (Australia) Ltd (2013) 66 MVR 69 (“Henderson”); Singh v Motor Accidents Authority of NSW [2010] NSWSC 550; and Alvanja v NRMA Insurance Ltd (2010) 56 MVR 499. It would have been enough that I was satisfied that Henderson had been misapplied to exercise my discretion to set aside the decision of the proper officer. The misapplication of what was decided in Henderson is set out in [29] of the proper officer’s decision and repeated throughout his decision.

6. [6]

   Turning to the issue of costs, both parties seek their costs. Alternatively, the first defendant seeks that there be no order for the costs of today. The plaintiff relied on the affidavit of John Kwang-Sik Kim dated 31 May 2015. The first defendant relied on the affidavit of its solicitor, David Brozinski, dated 30 May 2016. Both parties filed written submission and made short oral submissions.

The law

1. [7]

   Uniform Civil Procedure Rules 2005 (NSW) r 42.1 reads:

2. [8]

   The applicable general law principles as to costs were stated by McHugh J in Oshlack v Richmond River Counsel (1998) 193 CLR 72 (in dissent but not on this point, see, eg, Kirby J at [134], point 4). McHugh J stated at [66]-[67]:

History of proceedings

1. [9]

   The short history of these proceedings is as follows. On 16 December 2015, the summons was filed. It set out the three errors in paragraph 5. The first two errors were as follows:

2. [10]

   The third error is not relevant for the present purposes.

3. [11]

   On 29 February 2016, the first defendant filed a reply. It reads:

4. [12]

   In other words, as at 29 February 2016, the first defendant was still contesting these proceedings.

5. [13]

   The solicitor for the first defendant submitted his firm informed the plaintiff of these errors on or about 2 February 2016 but that the plaintiff only sought to rectify the second error on 23 May 2016. The first two paragraphs of the reply refer to obvious errors made by the plaintiff in her summons. According to the solicitor for the first defendant, in addition to rectifying the error in the orders sought the plaintiff added a wholly new error of the proper officer (“the third error”) that had not been pleaded by the plaintiff prior to 23 May 2016. Today the plaintiff filed the amended summons.

6. [14]

   The amended summons included the third error which reads:

Consideration

1. [15]

   I agree that the additional ground is an expansion of and more specific than the first two issues raised in the original summons. However, as previously stated, I would have set the proper officer’s decision aside on the basis of the incorrect application of Henderson alone. That issue was set out in the original summons. The plaintiff has been obliged to undertake preparation for the hearing listed for today, including two volumes of material and submissions that it need not have done so, had the offer to settle taken place at an earlier time.

2. [16]

   It is my view in these circumstances that the appropriate order for costs is that the first defendant is to pay the plaintiff’s costs of the proceedings, including the costs of today.