Claps v Insurance Australia Limited t/as NRMA Insurance

1. [1]

   HIS HONOUR: Michael Claps was involved in a motor vehicle accident on 22 December 2007. He made a claim on 9 April 2008 in respect of injuries sustained by him in the accident. Liability was admitted by the NRMA on 21 April 2008.

2. [2]

   A dispute arose as to the nature and extent of Mr Claps’ injuries. The NRMA therefore lodged an Application for Assessment of a Permanent Impairment Dispute with the Medical Assessment Service of the Motor Accidents Authority on 24 April 2009. The application sought an assessment of Mr Claps’ physical injuries to his left knee, cervical spine and left shoulder.

3. [3]

   Mr Claps filed a Reply to the Application five days later, in which he also sought to assess those injuries but in addition injuries to his right ankle, face, teeth and scarring, as well as psychological injuries.

4. [4]

   Mr Claps was assessed by Dr Nigel Marsh on 22 July 2009 for injuries to his cervical spine, left knee and scarring. Dr Marsh assessed Mr Claps’ Whole Person Impairment at 16 percent. The NRMA then filed an Application for Further Assessment of a Permanent Impairment Dispute with the Motor Accidents Authority on 29 July 2010 following Dr Marsh’s assessment. Mr Claps filed a Reply to the Application on 31 August 2010.

5. [5]

   The Motor Accidents Authority accepted the NRMA’s application, giving reasons for its decision in correspondence dated 22 September 2010. Mr Claps was then assessed by Dr Burns on 29 November 2010. Dr Burns assessed Mr Claps’ cervical spine, left shoulder and left knee injuries and arrived at a Whole Person Impairment assessment of six percent.

6. [6]

   Mr Claps subsequently filed an Application for Further Assessment of a Permanent Impairment Dispute with the Motor Accidents Authority following Dr Burns’ assessment. The injuries sought further to be assessed in that application were “traumatic brain injury involving frontal lobe damage” and “psychiatric injury”. The NRMA lodged a Reply to the Application on 10 October 2011. The Motor Accidents Authority accepted Mr Claps’ application, providing its reasons in correspondence dated 6 December 2011.

7. [7]

   Mr Claps was assessed by Dr O’Neill on 13 February 2012 for his traumatic brain injury involving frontal lobe damage. He was found to have a Whole Person Impairment with respect to that injury of zero percent. Mr Claps was also assessed by Dr Roberts on 28 March 2012 for his psychiatric injuries. Dr Roberts concluded that Mr Claps’ psychiatric injuries were not caused by the motor vehicle accident.

8. [8]

   Mr Claps then filed an Application for a Review of a Medical Assessment with the Motor Accidents Authority on 31 May 2012. Mr Claps sought to review Dr O’Neill’s assessment. Mr Claps also filed a second Application for Review of a Medical Assessment with the Motor Accidents Authority on 6 June 2012, seeking to review Dr Roberts’ assessment of his psychiatric injuries. The NRMA lodged a Reply to the Application with the Motor Accidents Authority on 12 July 2012.

9. [9]

   Mr Claps’ Applications for Review were dismissed by the Motor Accidents Authority in correspondence dated 19 July 2012. Reasons were annexed.

10. [10]

    On 10 February 2014 Mr Claps filed an Application for Further Assessment of Dr Roberts’ Certificate dated 4 April 2012. The injuries of which further assessment was sought were described as “psychological and/or psychiatric injury and/or sequelae”. The NRMA lodged a Reply to the Application with the Motor Accidents Authority dated 18 March 2014. On 27 March 2014 the Motor Accidents Authority asked for further materials to be provided by Mr Claps and the NRMA. Mr Claps provided further submissions dated 9 May 2014. The NRMA did so on 14 May 2014.

11. [11]

    In its response dated 11 June 2014, the Motor Accidents Authority accepted Mr Claps’ application in full and determined that it be referred for further assessment. Mr Claps was then assessed by Dr Kiernan on 11 August 2014. Dr Kiernan found that the traumatic brain injury involving frontal lobe damage to Mr Claps was caused by the motor vehicle accident but resulted in a Whole Person Impairment of zero percent.

12. [12]

    Mr Claps was subsequently assessed by Dr Synnott on 30 September 2014 for psychiatric injuries. Dr Synnott found that none of the injuries referred to him for assessment was related to the motor vehicle accident. Dr Synnott therefore did not provide a Whole Person Impairment assessment.

13. [13]

    On 13 November 2014 Mr Claps lodged an Application for a Review of Dr Synnott’s Certificate with the Motor Accidents Authority. The NRMA lodged a Reply to the Application with the Motor Accidents Authority on 17 December 2014. In its response dated 22 January 2015, the Motor Accidents Authority enclosed its reasons for accepting Mr Claps’ Review Application and referred the matter to a Medical Review Panel. The Review Panel provided its certificate dated 20 April 2015 by which it confirmed Dr Synnott’s assessment. That certificate of the Review Panel is the subject of these proceedings.

Grounds of review

1. [14]

   By his further amended summons filed in Court on 1 December 2015 Mr Claps seeks a declaration that the Review Panel’s certificate and statement of reasons is void and of no force or effect and an order that it be set aside. Mr Claps seeks an order remitting the matter to the Motor Accidents Authority (or what is now the State Insurance Regulatory Authority) for determination according to law.

2. [15]

   Four grounds are relied upon in support of those claims for relief. They purport to identify four errors as follows:

   1. (1)

      The Review Panel did not consider or deal with Mr Claps’ substantial case and argument on causation presented in the evidence, or his materials and submissions as to the cause of his psychiatric injury and in this way fell into error concerning a denial of procedural fairness of the type described in Rodger v De Gelder [2015] NSWCA 211.

   2. (2)

      The Review Panel did not provide reasons explaining why Mr Claps’ substantial case and argument on causation was rejected.

   3. (3)

      The Review Panel did not apply the correct test as to causation by failing to consider the notion of material contribution or otherwise apply the principles of s 5D of the Civil Liability Act 2002 or clauses 1.8 and 1.9 of the Motor Accidents Authority Guidelines for the Assessment of the Degree of Permanent Impairment.

   4. (4)

      The Review Panel did not determine what injury Mr Claps suffered and accordingly did not perform the statutory task under s 58(1)(d) of the Motor Accidents Compensation Act 1999.

3. [16]

   These grounds are considered in detail later in these reasons.

Legal principles

1. [17]

   It is convenient immediately to record the particular passages from Rodger v De Gelder to which my attention has been directed and which are said to support Mr Claps’ principal contentions. They are as follows:

2. [18]

   Mr Claps’ arguments draw heavily upon these passages in the circumstances that follow.

Evidentiary background

1. [19]

   Despite the indifferent history of Mr Claps’ various applications, the starting point for present purposes, or what Mr Robinson SC for the State Insurance Regulatory Authority metaphorically and variously described as the flag ship, the lynch pin or the spring board, is Mr Claps’ 10 February 2014 Application for Further Assessment of a Permanent Impairment Dispute. Mr Claps contends that from no later than that application, and the events and circumstances that it generated, he was making and articulating an argument that his psychological or psychiatric disorder was directly referable to or caused by a pathological reaction to his physical injuries. This notion achieves recognition from as early as 23 March 2009, when Dr Lok recorded that Mr Clap was “not coping with pain” and it remained in play on 9 April 2010 when Dr Lewington, a consultant physician and musculoskeletal specialist, reported that Mr Claps was “very disgruntled and obviously not coping with his pain.” Dr Lewington referred Mr Claps for pain management counselling.

2. [20]

   Mr Claps’ 10 February 2014 application is in evidence. It is comprehensive. It attached several medical reports and included the following submission:

3. [21]

   One of the attached reports was from Dr Sharpe, who conferred with Mr Gilbert of junior counsel for Mr Claps on 27 June 2013. He subsequently provided a report dated 14 August 2013 that included the following:

4. [22]

   Another of the attached reports was from Dr Keshava, who also reported on Mr Claps on 24 September 2013. That report included the following opinion:

5. [23]

   In addition to these medical opinions, Mr Claps provided the Motor Accidents Authority with statements from lay witnesses attesting to his condition. One of those statements was from Ahmet Shevket who said the following relevant things:

6. [24]

   Another statement was provided by Saadi Habbouchi. Part of that statement is in these terms:

7. [25]

   On 27 March 2014 the Motor Accidents Authority wrote to Mr Claps’ solicitor. The letter was written in reference to Mr Claps’ application for further assessment. Part of that letter was in the following terms:

8. [26]

   That letter specifically called for additional submissions from the parties. Mr Claps’ solicitor provided his submissions by letter dated 9 May 2014. The submissions were very comprehensive and referred to all of the relevant evidence. It effectively concluded as follows:

9. [27]

   The Proper Officer considered the matter and thereafter on 11 June 2014 wrote to Mr Claps in these relevant terms:

10. [28]

    Relevantly for present purposes, Dr Synnott conducted a review and issued a certificate on 1 October 2014. He determined that:

11. [29]

    That conclusion prompted Mr Claps’ Application for a Review of the Medical Assessment on 13 November 2014. It was accompanied by an undated letter that referred to the following complaints:

12. [30]

    The Motor Accidents Authority agreed that the matter should be referred to a Review Panel. In coming to that conclusion it noted the following in its Statement of Reasons for Decision issued on 22 January 2015:

13. [31]

    The ultimate deliberations and conclusions of the Review Panel are the particular subject of these proceedings. The Review Panel Certificate is dated 20 April 2015. It is very lengthy. Some of what it contains needs to be recorded here:

Mr Claps’ submissions

1. [32]

   In the light of this background, Mr Claps made the following submissions.

2. [33]

   Mr Claps’ fundamental argument was that his psychiatric or psychological condition or disorder was a consequence of the pain suffered or experienced by him as a result of his physical injuries that were sustained in the motor vehicle accident. That included the development of his condition over time. Dr Jungfer provided an opinion to that effect. Mr Claps does not assert or continue to maintain that he sustained or suffers from any form of organic brain injury. On the contrary, Mr Claps’ symptoms and behaviour are related to a psychiatric condition secondary to physical injuries. This became clear when the additional information requested by and supplied to the Motor Accidents Authority was assembled. Mr Claps maintains that the Review Panel failed in various respects to come to terms with or to consider this fundamental characterisation of his claim.

3. [34]

   By particular reference to the Review Panel’s difficulty reaching a diagnosis, as earlier quoted, Mr Claps argued that the Review Panel had not correctly apprehended his case on causation. It was not even referred to by the Review Panel. There is no suggestion that the Review Panel appreciated that Mr Claps was contending that his psychiatric condition was a function of his reaction to his physical injuries. It was a necessary aspect of that case that it did not become apparent contemporaneously with the motor vehicle accident but developed over some years when it became manifest in about March 2009. In posing the questions to be answered, the Review Panel mentions three alternatives, being a psychotic illness such as schizophrenia, a possible head injury suffered in the motor accident or a degenerative brain condition such as frontotemporal dementia. It did not refer to or consider the fourth alternative of a pathological psychiatric response to pain caused by physical injury. This amounted to error.

4. [35]

   Mr Claps submitted that the Review Panel made an error of the type identified in Rodger v De Gelder at [88]–[96] and also at [84]–[87], referred to in the conclusions at [109] and [111]. This amounts to jurisdictional error. In Campbelltown City Council v Vegan [2006] NSWCA 284; (2006) 67 NSWLR 372 at [121]–[122], a similar matter is approached as an aspect of the obligation to give reasons.

5. [36]

   The statutory task to be performed under s 58(1)(d) of the Motor Accidents Compensation Act 1999 includes a medical determination and a non-medical determination: Rodger v De Gelder at [17] and [18]. However, for the reasons identified in that case at [91], a causation conclusion of the type in question is a non-medical determination. The distinction is discussed in Rodger v De Gelder at [97] and the process of reasoning error that is of particular significance in the present case is discussed at [108]–[109].

6. [37]

   This ground is related to the first: the Review Panel did not provide reasons why it rejected Mr Claps’ case on causation. Mr Claps argued that even though the Review Panel reasoning process relates to setting out its own conclusion, as discussed in Rodger v De Gelder at [108], there remains an additional obligation to deal with substantial arguments put forward by a party. In this case there are no reasons furnished in respect of this matter at all.

7. [38]

   Mr Claps contended that a fair reading of the Review Panel’s deliberations indicates that it did not consider his case on causation. Alternatively, if it did, it furnished no reasons to demonstrate that it did. Reasons cannot be inferred or imputed. The proper approach has been discussed in Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259 at 271-2 as follows:

8. [39]

   In Sadsad v NRMA Insurance Ltd [2014] NSWSC 1219 at [47], Hamill J referred to these principles in the following terms:

9. [40]

   Mr Claps contended further that his causation argument also raised or involved questions of material contribution: even if Mr Claps had some pre-existing vulnerability, if his physical injuries sustained in the motor vehicle accident contributed to his psychiatric condition which became evident around March 2009, legal and factual causation are established.

10. [41]

    As discussed in Rodger v De Gelder at [18] and elsewhere, causation for the Review Panel involved both medical and non-medical questions. Mr Claps contended that the medical question in this case was, as exemplified in Rodger v De Gelder, whether medically it was possible for the causal connection to be established, whereas the non-medical causation question was whether it has been established in fact.

11. [42]

    Mr Claps complained that in this case the Review Panel failed to consider causation principles at all, and gave no consideration to the two stage process in the causation inquiry called for in clause 1.8 of the relevant guidelines. Material contribution received no attention from the Review Panel at all.

12. [43]

    Properly understood according to Mr Claps, the Review Panel did not actually reach a conclusion on diagnosing his condition. In accordance with the guidelines and under s 58(1)(d), questions of causation cannot be decided unless there is a diagnosis. Mr Claps submitted that the question of diagnosis is important because, in a conventional retrospective inquiry about cause and effect, the condition suffered will speak to whether the non-medical determination of causation has been satisfied.

13. [44]

    The error contended for is that the Review Panel should have reached a conclusion on a diagnosis but failed to do so.

The NRMA Insurance submissions

1. [45]

   The NRMA submitted that none of these grounds of review was made out.

2. [46]

   The first ground complains that the Review Panel did not correctly apprehend Mr Claps’ case on causation and did not deal or engage with a substantial argument based on the evidence. The NRMA submitted that the argument in question, that Mr Claps’ psychological or psychiatric presentation was a function of his response to his physical injuries, was never actually put before the Review Panel as an argument. By way of contrast, the NRMA contends that Mr Claps, with the benefit of hindsight, complains that the Review Panel should somehow have been able to divine his argument from a great quantity of material extending to hundreds of pages in all. The NRMA says that it is not clear even now what evidence Mr Claps suggests the Review Panel should have had regard to in order to piece together the argument in question.

3. [47]

   The NRMA contended that, in contrast to cases such as Allianz Australia Insurance Ltd v Cervantes [2012] NSWCA 244 and Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26; (2003) 77 ALJR 1088, Mr Claps never clearly articulated any argument of the type he now seeks to advance. The obligation referred to in Rodger v De Gelder and Dranichnikov does not therefore arise. In any event, as Basten JA discussed in Cervantes at [22]:

4. [48]

   Alternatively, even if Mr Claps did propound the argument in question, the NRMA submitted that the Review Panel gave explicit attention to it and to “most of the evidence that [Mr Claps] relies upon as supporting [his] ‘substantial case and argument on causation’.”

5. [49]

   Mr Claps’ second ground alleges a failure by the Review Panel to give reasons why his “substantial case and argument on causation” was rejected. The NRMA maintained that the reasons given by the Review Panel accorded with the duty imposed by law to give reasons. Moreover, even if the Review Panel’s decision could be considered to be erroneous for want of adequate reasons, it does not automatically follow as a matter of statutory construction that such error means that the decision is invalid or should be set aside. The NRMA argued that I would need to be satisfied that a proper construction of s 61 and s 63 of the Motor Accidents Compensation Act compelled such a conclusion: see Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355 at [92]–[93]; VAW (Kurri Kurri) Pty Ltd v Scientific Committee [2003] NSWCA 297; (2003) 58 NSWLR 631 at [91]–[116]; Kennedy v Australian Fisheries Management Authority [2009] FCA 1485; (2009) 182 FCR 411 at [55] – [75].

6. [50]

   In any event, it remains open on these authorities for Mr Claps to seek to compel the Review Panel to provide further reasons for its decision. That could have been done in the further amended summons filed by Mr Claps but was not: see Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Palme [2003] HCA 56; (2003) 216 CLR 212 at [57] and [141]; Sanhueza v AAMI Ltd [2010] NSWSC 774; (2010) 56 MVR 34.

7. [51]

   The NRMA submitted with respect to the third ground that there were no elaborate findings on causation to be made. In basic terms the Review Panel determined, whether it be styled a medical question or a non-medical question, that it could not reach a medical diagnosis and that the first report that even suggested psychiatric symptoms was from a general practitioner in a diary note about depression in March 2009. The Review Panel determined that Mr Claps’ illness could not have been caused by the motor vehicle accident given the time that had elapsed between it and the first presentation of relevant complaints or symptoms.

8. [52]

   The NRMA submitted that that was a finding open to the Review Panel. It was similar to the finding made in Frost v Kourouche [2014] NSWCA 39; (2014) 86 NSWLR 214. In that case the Court of Appeal did not have difficulty with the inability of a panel to determine a diagnosis on a particular matter.

9. [53]

   The NRMA apprehends in this case that Mr Claps’ real complaint is that the Review Panel did not cite in terms the causation provisions of the Permanent Impairment Guidelines, the “but for” test or s 5D of the Civil Liability Act 2002. However, the NRMA submitted that the Review Panel was not obliged or required to do so. The Review Panel read the material that was placed before it. It medically examined Mr Claps. It wrote a lengthy determination setting out what it had done together with reasons for its conclusions.

10. [54]

    The NRMA submitted that the position is as discussed in Pham v NRMA Insurance Ltd [2015] NSWSC 1205; (2015) 72 MVR 272 at [47]:

11. [55]

    Finally, in answer to the proposition that the Review Panel erred in failing to determine what injury Mr Claps had suffered, the NRMA submitted that it was under no statutory obligation to do so. There is no provision in the Act that requires it. The ultimate finding in this case was that the Review Panel was unsure of what it was that Mr Claps may have been suffering from. It accepted that his complaints were genuine. It found that the motor vehicle accident did not cause the condition. That was all that the Review Panel was required to do under the statutory scheme in question: Frost v Kourouche.

12. [56]

    The NRMA disputed the proposition that “questions of causation cannot be decided unless there is a diagnosis.” The scheme of the Act does not require a diagnosis to be made when the expert medical practitioners cannot commit to a diagnosis based on the available medical evidence and its own medical examination of Mr Claps.

Consideration

1. [57]

   The question for determination is whether Mr Claps can establish a relevant error on the face of the record or jurisdictional error of sufficient severity to warrant quashing the decision of the Review Panel. These proceedings are therefore in the nature of judicial review, as distinct from an appeal: see Allianz Australia Insurance Ltd v Sprod [2011] NSWSC 1157; (2011) 59 MVR 250 at [57] – [59]; Allianz Australia Insurance Ltd v Sprod [2012] NSWCA 281; (2012) 81 NSWLR 626 at [14].

2. [58]

   The correct approach in Review Panel matters, as well as Medical Assessor matters who exercise the same powers in s 61 of the Motor Accidents Compensation Act, was discussed in Frost v Kourouche at [2] and [40] in the following terms:

3. [59]

   In my opinion, Mr Claps has not four discrete bases upon which to complain about the Review Panel’s conclusions, but only one. The structure of the latest version of his summons, with its somewhat prolix collocation of enumerated grounds for review, is perhaps an understandable function of the difficulties that flow from the Review Panel’s failure to respond to Mr Claps’ substantial argument, and the manner in which that particular failure suggests the existence of others.

4. [60]

   It is plain enough, from at least the 10 February 2014 application, and the material accompanying it, that Mr Claps was arguing that his significant psychiatric presentation was related to his response to pain. It is not in issue that Mr Claps sustained physical injuries that cause him pain. It does not appear to be controversial that he has some form of psychological or psychiatric pathology. It is also equally clear that his presentation could not be explained by the development of a psychotic illness such as schizophrenia, degenerative brain injury secondary to trauma or subcortical dementia. Mr Claps’ presentation is, on one view of the Review Panel’s opinion, an unexplained condition that is also unrelated to the motor vehicle accident.

5. [61]

   The Review Panel does not in my view at any stage come to terms or engage with what Mr Clap was propounding. The touchstone to that conclusion is to be found in the fact that the Review Panel embraced the late onset of the presenting symptoms as evidence of the absence of a causal connection. It was, on the contrary, the very essence of Mr Claps’ submission that his psychiatric or psychological pathology was reactive to the development and deterioration of his pain over time. In other words, the development of that pathology was inversely proportional to Mr Claps’ ability to cope with his pain.

6. [62]

   The NRMA has contended that this argument was neither clearly articulated in the first place nor substantial in the second place. I disagree. The submission in support of the 10 February 2014 application that “on the balance of probabilities, [Mr Claps’] current mental condition is most likely to be caused by a reaction and response to his injuries sustained in the motor vehicle accident” and that it was therefore a psychological or psychiatric injury is clear and unambiguous. It remained prominent from that time on. So much is clear from the terms of the submission contained in the 9 May 2014 letter that Mr Claps’ “current psychological and/or psychiatric condition has been, on the balance of probabilities, caused as a result of the motor vehicle accident and [his] difficulty in dealing and coping with his injuries and the effects of those injuries.”

7. [63]

   I appreciate and accept that the deliberations, reasoning processes and conclusions of a Review Panel are not to be examined in an overly technical or niggardly fashion in search of error where none exists. I am of the view in this case, however, that the Review Panel failed to consider the substance of Mr Claps’ application and probably failed to do so because it misunderstood or misapprehended what was involved. To adopt the terminology used in Rodger v De Gelder, the Review Panel’s reasons disclose that it did not engage with the evidence or submissions that the onset of the psychological or psychiatric symptoms corresponded to a time when Mr Claps was struggling to cope with his pain. As in that case, “this was a matter of importance which related to its determination of a non-medical factual question.” In so doing the Review Panel failed to respond to Mr Claps’ substantial argument based on evidence relied upon by him as to causation of his psychological or psychiatric condition.

8. [64]

   A consequence of this conclusion is that the Review Panel cannot be criticised for failing to give reasons. The document produced by the Review Panel is arguably replete with reasons explaining the determination at which it arrived. It does not contain reasons dealing with Mr Claps’ substantial argument because it is apparent that it did not apprehend the argument or engage with it in any sense at all. While it may be literally correct to say that the Review Panel did not furnish reasons of the type that Mr Claps was expecting, that is no more and no less than a function of its failure to respond to his substantial argument, rather than a separate and distinct error on its own.

9. [65]

   The same can be said of Mr Claps’ third ground for review. In one sense the Review Panel’s determination amounts to a conclusion that Mr Claps’ psychological or psychiatric condition was not caused by the motor vehicle accident. However, in presently relevant terms, that is not a conclusion or determination that flowed from a considered assessment of whether or not Mr Claps was unable to cope with the consequences of his pain. Even though the result for him is the same, the Review Panel did not embark upon any reasoned consideration of his argument, so that its causation findings and conclusions are effectively beside the point. It is not in these circumstances correct to say, as Mr Claps says, that the Review Panel failed to apply the correct test as to causation, because it never adverted to the proper context in which its causation deliberations should have been undertaken. That context was one in which the Review Panel should have dealt with Mr Claps’ substantial argument.

10. [66]

    The fourth ground of review is in my view also not made out. I consider that the NRMA’s submissions in this respect are correct. Section 58(1) of the Motor Accidents Compensation Act is in these terms:

11. [67]

    Mr Claps’ contention, that the Review Panel was obliged by s 58(1)(d) of the Act to determine what injury Mr Claps had suffered, is neither in terms nor by any obviously available method of reasoning supported by the words of the section.

Conclusions and orders

1. [68]

   It follows in my view that the Review Panel has failed to accord Mr Claps natural justice in the sense of procedural fairness, which is a recognised form of jurisdictional error. I therefore propose the following orders:

   1. (1)

      Substitute the State Insurance Regulatory Authority for the Motor Accidents Authority of New South Wales as the second defendant.

   2. (2)

      Declare that the Review Panel Certificate dated 20 April 2015 is void and of no force or effect.

   3. (3)

      Order that the Review Panel Certificate dated 20 April 2015 be set aside.

   4. (4)

      Remit the matter to a differently constituted Review Panel of the State Insurance Regulatory Authority for determination according to law.

   5. (5)

      Order Insurance Australia Ltd trading as NRMA Insurance to pay Mr Claps’ costs of and incidental to the summons.

   6. (6)

      Otherwise make no order as to costs.