AAI Limited trading as GIO v Evic & Ors

On 20 February 2024, the plaintiff filed a Summons seeking a declaration declaring invalid the decision and certificate of the second defendant (a Member of the Personal Injury Commission (PIC)) dated 22 November 2023 in respect of an application by the first defendant (the claimant at PIC, Mr Evic) for statutory benefits under the Motor Accident Injuries Act 2017 (NSW) (the Act). The grounds of the Summons concern the proper construction of ss 3.11 and 3.28 of the Act. Those provisions relevantly limit the statutory benefits to which a person is entitled in respect of motor accidents “caused wholly or mostly by the fault of the person”.

The first defendant and the second defendant have filed submitting appearances. The third defendant, the President of PIC, has indicated that he will not participate in the proceedings as he considers it inappropriate to participate as an active contradictor, having regard to the principles in R v Australian Broadcasting Tribunal; ex parte Hardiman (1980) 144 CLR 13; [1980] HCA 13. In that case the High Court said at [35] that: “if a tribunal becomes a protagonist…there is the risk that by so doing it endangers the impartiality which it is expected to maintain in subsequent proceedings which take place if and when relief is granted.” Thus, the proceedings as presently constituted, are bereft of a contradictor.

By his notice of motion filed on 28 March 2024, the Attorney General for New South Wales seeks to be joined as the fourth defendant pursuant to r 6.24(1) of the Uniform Civil Procedure Rules 2005 (UCPR). In the alternative, the Attorney General seeks leave to appear as amicus curiae. He seeks to be joined on the basis that the Court requires an active contradictor, in circumstances where none of the other defendants will play an active role.

In the decision the subject of these proceedings, the second defendant incorporated her reasoning in another decision given on the same date, Samer Fatoula v GIO t/as AAMI (PIC no. M10559214/23). She held that an owner driver injured in a single vehicle motor accident cannot be “at fault” for the purposes of the Act, and consequently, that such accidents cannot be “caused wholly or mostly by the fault” of such a driver for the purposes of ss 3.11 and 3.28 of the Act. The plaintiff, by its Summons, contends that the Act, on its proper construction, does not preclude a finding of fault in respect of a person injured in a single vehicle accident, that the question of whether the accident was caused mostly by the fault of the injured person should be determined by reference to the contributory negligence of the injured person and that the contributory negligence of the injured person is to be determined, for the purposes of ss 3.11 and 3.28 of the Act, by inquiring how far the injured person has strayed from the standard of care that he or she is required to observe in the interests of his or her own safety.

It appears that other Members of the PIC have taken other approaches to the construction of the relevant provisions. In particular, other decisions have found that if there is any fault by a claimant who is the owner and driver in a single vehicle accident, then the claimant must be wholly at fault for the accident as there is no one else who could be at fault. In yet other decisions of PIC, Members have found that it is appropriate to determine the question of “fault” in single vehicle accidents in accordance with the principles set out in Axiak v Ingram (2012) 82 NSWLR; [2012] NSWCA 311, where the Court of Appeal held that in the case of a claimant involved in an accident where there was no fault on the part of anyone but the claimant, it was appropriate to deal with the question of apportionment of contributory negligence by considering how far the claimant had departed from the standard of care he or she is required to observe in the interests of his or her own safety. It is this latter approach that will be advanced by the plaintiff at the hearing of the Summons.

The plaintiff submits that this matter is a convenient vehicle to decide the correct legal approach to what is conceded by all to be a difficult question of statutory construction. It submits that it is a question of importance, as under the statutory scheme provided for in Part 3 of the Act, claimants who are wholly or mostly at fault for motor accidents do not receive the same duration of statutory benefits as those who are not wholly or mostly at fault. It is also relevant to the amount of statutory benefits payable to a claimant partially at fault, as statutory benefits are to be reduced by the percentage of contributory negligence. I do not doubt that the subject matter of the Summons concerns a matter of some importance, and depending on what will occur at the hearing of the Summons, it may be that the matter will find its way to the Court of Appeal so that the issue can be authoritatively decided.

As the matter concerns a question of statutory construction, and the first defendant has filed a submitting appearance, the plaintiff quite properly has not sought to quash the second defendant’s decision so that the first defendant’s rights will be unaffected, and it seeks only declaratory relief. That the plaintiff seeks only such relief is a position contemplated by s 75 of the Supreme Court Act 1970 (NSW), which provides:-

As the Court will surely benefit from the participation of a contradictor, in my opinion the Attorney General should either be joined to the proceedings as a defendant or be granted leave to appear as amicus curiae.

The applicant on the motion read the affidavit of Mr Christopher Frommer affirmed on 28 March 2024.

It is agreed between the parties that the Court has power to join the Attorney General to the proceedings. In particular, r 6.24 of the UCPR provides:-

My understanding of the submissions made by the parties is that there is no real dispute about the Attorney General being joined to the party as a defendant, in circumstances that if he appeared as amicus curiae he would not be permitted to lead evidence, or in the event that he was dissatisfied with the judgment of the Court, he would not be able to institute an appeal. In circumstances when each of those situations may eventuate, in my opinion the Attorney General ought to be joined as defendant to the proceedings, as he is a necessary party for the proper ventilation of the matters that the plaintiff seeks to raise in its Summons. I do not understand that decision to be controversial, in circumstances where the plaintiff indicated to the Attorney General on 22 March 2024 that it neither consented to nor opposed the order that the Attorney General be joined to the proceedings (subject to the question of costs). Further in my opinion, the Attorney General should bear his own costs of the motion, as he had to apply to the Court to be joined.

The real question for determination, is whether the Attorney General should be joined on the basis that he will have a right to seek costs from the plaintiff, or be liable for costs.

UCPR 6.32(1) provides:-

I consider that pursuant to this rule, the Court has power to permit the joinder of the Attorney General on terms, including that he not be permitted to seek his costs from the plaintiff or be liable for costs.

In exercising its discretion pursuant to the UCPR, the Court must give effect to the overriding purpose set out in s 56 of the Civil Procedure Act 2005 (NSW). The plaintiff submits that a just, quick and cheap determination supports its submission that if the Attorney General is joined, he should be subject to a condition that he pay his own costs, the emphasis being on the word “cheap”.

The plaintiff submits that the long-standing principle is that the Attorney General will not ordinarily be entitled to costs if it intervenes in proceedings and cites Attorney General (Qld) v Holland (1912) 15 CLR 46; [1912] HCA 26 (Holland), which was a matrimonial cause case in which the Attorney General had intervened: see also Button J in Buckley v Independent Liquor & Gaming Authority [2016] NSWSC 760 at [20].

In Holland, Griffith CJ said at 49:

In that case, in the context of 19th century legislation, Griffiths CJ found at [54], that there was no satisfactory ground for holding that the general rule was excluded, and at [55] that the Attorney General was not “joined” as party in the true sense of the word, but was coming in “to prevent a perversion of justice and in aid of the Court”. It was held that the Attorney General, intervening, was not entitled to receive or liable to pay costs (Griffith CJ at [55], Barton J at [61-62], Isaacs J contra). In the present case, the Attorney General is likewise not becoming a party in the sense that his rights will be affected, but rather is joining for the purpose of aiding the Court.

More recently, in Tonto Home Loans Australia Pty Ltd v Tavares; FirstMac Ltd v Di Benedetto; FirstMac Ltd v O’Donnell (No 2) [2012] NSWCA 129 (Tonto), Allsop P (Bathurst CJ and Campbell JA agreeing) said at [7] –[9]:-

In his submissions, the Attorney General says that he understands that the plaintiff is concerned that the proposed joinder may enable the Attorney General to claim costs in the event that the Summons is dismissed. He concedes that the exposure is not irrelevant, but submits that it should not weigh heavily against the joinder in view of the desirability of having him present as an active contradictor. It is further submitted that costs should be left to the discretion of the judge hearing the substantive proceedings, particularly in circumstances where the Attorney General may seek to dispute the utility of the relief sought, given that the statutory benefits in question are to be paid to the first defendant regardless of the outcome.

There is no doubt in my mind, in the instant circumstances, that the Attorney General’s joinder as an active contradictor, who will provide the Court with all available assistance on matters of fact and law, is desirable. It is not now known precisely what stance the Attorney General will take at hearing. It is entirely possible that he will at least partly support the construction of the Act contended for by the plaintiff. However, in my view, to paraphrase Allsop P in Tonto, notwithstanding the assistance that will be afforded by the participation of the Attorney General, the plaintiff in the event of its loss at hearing, ought not to pay the costs of the Attorney General who will be appearing in pursuance of the general good, the administration of justice and in pursuit of the proper operation of the motor accidents compensation legislation. In my opinion, as an intervenor, the Attorney should participate at his own cost. For the avoidance of doubt, each of the plaintiff and the proposed fourth defendant should bear their own costs of the proceedings going forward, subject to further order of the Court.

I make the following orders:-

The parties proposed the following additional Consent Orders, which I make:-