Insurance Aust v Milton

1. [1]

   The first defendant to these proceedings, Trent Milton, suffered severe injuries in a motor cycle accident on 5 March 2011. The plaintiff, Insurance Australia Limited trading as NRMA Insurance (“NRMA”), is the insurer of the at fault vehicle. It has admitted liability for Mr Milton’s claim for damages.

2. [2]

   In circumstances which I will describe, NRMA applied to have Mr Milton included in the scheme for providing care and support for persons injured in motor accidents established by the Motor Accidents (Lifetime Care and Support) Act 2006 (the scheme and the “LCS Act” respectively). If Mr Milton was admitted into the scheme then he would be precluded from claiming damages in respect of his treatment and care needs from NRMA (Motor Accidents Compensation Act 1999; s 141A(1)).

3. [3]

   Mr Milton strongly objected to being included in the scheme. Ultimately, the third defendant, a Review Panel acting under s 15 of the LCS Act, determined that Mr Milton was not eligible for entry. Neither the Review Panel nor the second defendant, the Lifetime Care and Support Authority of New South Wales (the “Authority”), took an active role in these proceedings.

4. [4]

   NRMA invokes this Court’s supervisory jurisdiction confirmed by s 69 of the Supreme Court Act 1970 to seek judicial review of the Review Panel’s determination and an associated Functional Independence Measurement assessment (“FIM assessment”) on the basis that they were affected by an error of law on the face of the record or a jurisdictional error.

5. [5]

   NRMA contended that the Review Panel erred in apparently requiring that Mr Milton’s brain injury be the sole or main cause of his impaired functioning before he was eligible for participation in the scheme. The NRMA also contended that the Review Panel’s reasons for its determination (and the FIM Assessment) were inadequate. In particular the NRMA contended that the members of the Review Panel failed to address and resolve various inconsistencies in the assessment of Mr Milton contained in the medical reports placed before them and failed to address the effect on Mr Milton’s credibility of his unwillingness to join the scheme.

6. [6]

   For the reasons set out below I reject these contentions. In summary, any error on the part of the Review Panel in stating or applying the appropriate test for the connection between his brain injury and his impaired functioning was immaterial to its decision. Otherwise, the Review Panel set out the “actual path of reasoning” to its decision (Wingfoot Australia Pty Ltd v Kocak [2013] HCA 43; 252 CLR 480 at [55]; “Wingfoot”). The path it adopted revealed an approach that was consistent with its obligations, specifically its obligation to form its own opinion concerning Mr Milton’s level of functioning.

7. [7]

   To explain these conclusions it is first necessary to briefly describe the operation of the LCS Act before outlining the background to the review panel’s decision.

The scheme

1. [8]

   The operation of the statutory scheme provided for by LCS Act is set out in Daly v Thiering [2013] HCA 45; 249 CLR 381 at [4] to [13] (“Daly”). Further, in Daly at [14] the High Court adopted the following statement by Garling J at first instance (Thiering v Daly [2011] NSWSC 1345; 83 NSWLR 498 at [85]) concerning the principal features and objectives of the scheme (and s 130A of the Motor Accidents Compensation Act 1999) namely:

2. [9]

   In addition, the following aspects of the scheme should be noted.

3. [10]

   First, an application for a person to become a participant in the scheme is to be made to the Authority and can only be made on behalf of the person injured or by the insurer of a claim made by the person in respect of the injury (LCS Act; s 8(1)). An application by an insurer does not require the person’s consent (LCS Act; s 8(2)).

4. [11]

   Second, eligibility for participation in the scheme is governed by s 7. It provides:

5. [12]

   Third, as is evident from s 7, the LCS Act makes provision for the specification of the “LTCS Guidelines” (the “Guidelines”). The authority to make the Guidelines is confirmed by s 58. Subsection 58(5) effectively treats the Guidelines as statutory rules for the purposes of the Interpretation Act 1987. One subject matter for the LTCS Guidelines is eligibility for inclusion in the scheme (LCS Act, s 7(1)). Further, s 19(1) provides that the Guidelines may relate to the “procedures for the referral of disputes for determination or review of determinations and the procedure for determination”. The content of the Guidelines is addressed below.

6. [13]

   Fourth, the LCS Act provides a means for the assessment of disputes about, inter alia, a person’s eligibility to participate in the scheme. If there is a dispute as to whether a “motor accident injury” suffered by a person satisfies the eligibility criteria in the Guidelines then the dispute is to be referred to an “assessment panel” for determination (LCS Act, s 14(1)). An assessment panel is a panel of assessors convened under Div 1 of Part 3 (LCS Act, s 12). Such assessors are “medical practitioners and other suitably qualified persons” appointed by the Authority (LCS Act, s 13). The assessment panel is obliged to determine the dispute and “give a certificate as to its determination setting out the reasons for its determination” (LCS Act, s 14(3) and s 14(4)).

7. [14]

   Further, a determination of an assessment panel can be referred for review by a “Review Panel”, but only if one or more of the grounds specified in s 15(1)(a) to (d) are demonstrated, namely a change in the person’s condition, the availability of additional information, that the original determination was not made in accordance with the Guidelines or that the original determination was demonstrably incorrect in a material respect. If a matter is so referred, the Authority is required to convene a panel of three assessors to constitute the Review Panel. The Review Panel can confirm the determination of the assessment panel or it can revoke it and substitute its own determination and issue a certificate as to that determination (LCS Act, s 15(3) and (4)).

8. [15]

   Fifth, clause 2 of the Guidelines specifies the criteria that must be met by a relevant person for the purposes of s 7 of the LCS Act depending on the type of injury that has been suffered. Five types of injury are identified, namely spinal cord injury, brain injury, amputations, burns and permanent blindness. Clause 2 identifies the relevant criteria for brain injury as follows:

9. [16]

   Sixth, clause 3 of the Guidelines explains the concept of a FIM Assessment as follows:

10. [17]

    Seventh, although s 14(4) of the LCS Act imposes an obligation upon an assessment panel to set out the reasons for its determination, there is no equivalent obligation set out in s 15 for Review Panels. However, clause 17 of the Guidelines provides:

The NRMA’s application

1. [18]

   The injuries suffered by Mr Milton in his accident included a traumatic brain injury, severe injury to the right lower leg which resulted in a right sided trans-tibial amputation, fractures of the right radius and ulnar and a right radial nerve injury. According to the Review Panel, prior to the accident Mr Milton had been a keen cyclist, surfer and snow boarder. Between the ages of sixteen and thirty-two he lived overseas and at one time he worked as a snow boarding coach for the American Olympic team. Notwithstanding the severity of his injuries, Mr Milton maintained his devotion to sporting activities and exercise. He has become an elite para-snow boarder. He was a member of the Australian Paralympic team at the Winter Olympic Games in Sochi in 2014. According to the Review Panel, Mr Milton lives alone and self manages a complicated lifestyle “which involves spending half the year in Australia and the other half on European ski fields whilst engaging in training for the Paralympics”.

2. [19]

   Mr Milton was an interim participant in the scheme for the first two years after his accident. On 21 March 2013 the Authority issued a letter stating that Mr Milton was not eligible for lifetime participation in the scheme.

3. [20]

   On 18 September 2013, NRMA’s lawyers wrote to the Authority disputing the decision not to accept Mr Milton as a permanent participant in the scheme. They submitted that Mr Milton met the criteria for eligibility contending that he had a score of five or less on at least one of the items on the “FIM” due to his brain injury. To that end they enclosed a “FIM score sheet, brain injury” which had been completed by Dr Bowers on 12 September 2013. Dr Bowers identified two matters in respect of which he had a score of five or less, namely bladder management and bowel management. Dr Bowers gave Mr Milton a score of three. In relation to bladder management, Dr Bowers recorded that Mr Milton had stated that he had urinary and bowel incontinence “requiring frequent change of underwear”.

4. [21]

   The dispute generated by NRMA’s application was referred to an Assessment Panel pursuant to s 14(1) of the LCS Act. On 25 November 2013 the Assessment Panel issued a certificate which maintained the Authority’s decision that Mr Milton was not eligible to participate in the scheme. Critical to that conclusion was their observation that two assessors “both FIM credentialed examined Mr Milton at his home on 11 November 2013” and determined that “no domain had a score of 5 or less”. Contrary to Dr Bowers’ assessment, those assessors listed Mr Milton’s bladder management and bowel management as a “seven”. A score of seven corresponded to complete independence.

5. [22]

   On or about 30 May 2014 the NRMA applied for a review of the Assessment Panel’s determination pursuant to s 15 of the LCS Act. Accompanying that application was a report from Dr Bowers dated 22 May 2014. Based on his most recent examination of Mr Milton and a review of other reports Dr Bowers expressed uncertainty about the appropriate scores for Mr Milton. He stated that “due to varying complaints” he concluded that the score for bladder and bowel dysfunction “is either 3 or 7 for each item”. In relation to “social interaction” Dr Bowers assessed his score as “either 5 or 6” and, depending on whether he needed supervision, his score on memory and problem solving was 5 or 6.

6. [23]

   Based on this material, on or about 29 July 2015 an officer of the Authority determined that there was available additional relevant information that was capable of having an effect on the Assessment Panel’s determination (s 15(1)(b)). This was not the subject of any challenge in these proceedings. The Authority convened a Review Panel under s 15(3). The Review Panel was comprised of two experts in rehabilitation medicine and a urologist. As part of that review, the two rehabilitation specialists conducted a FIM assessment of Mr Milton between November 2014 and early January 2015. They recorded their assessment on a document entitled “FIM score sheet: Brain injury”. The outcome of their assessment was that Mr Milton did not score five or less in any of the relevant domains.

7. [24]

   In light of the NRMA’s contentions it is necessary to explain the structure of the “FIM score sheet” in more detail. The sheet is divided into four columns headed “Area”, “Score”, “Is Score due to the brain injury” and “Explain reasons for giving this score”. In the column headed “area” there are listed various functional aspects of the subject’s physical and mental condition grouped into five areas namely “self care”, “transfers”, “locomotion”, “communication” and “social cognition”. For example “bladder management” and “bowel management” fall within the self care section. The second column contains a score for each function. As noted a seven equates to full independence. The third column simply requires the completion of a box stating “yes” or “no” and the fourth column requires the inclusion of a short explanation. For those functions where a score of seven was provided the third column was left blank. Of the eighteen functions Mr Milton scored a seven on six of them. For the other twelve functions he scored a six. For ten of those functions the form listed a “no” for the question whether the score was “due to the brain injury”. For two of them the form listed a “yes” to that question namely “expression” and “memory”.

8. [25]

   On or about 27 January 2015 the Review Panel provided a certificate upholding the Assessment Panel’s determination (s 15(4)). The certificate included 27 pages of reasons. The FIM assessment was attached to those reasons.

9. [26]

   In its reasons the Review Panel noted that NRMA had lodged lengthy submissions which included complaints that Mr Milton “had provided an inconsistent history to Dr David Bowers in September 2013 compared with May 2014” and that Mr Milton “had deliberately underreported symptoms so that he could exit the Scheme”.

10. [27]

    The Review Panel noted the vast amount of material that had been provided to it stating that “all [review] panel members confirm they have received, read and considered” that documentation. The Review Panel discussed that material in considerable detail. They devoted a page to summarising Dr Bower’s reports. In relation to his bladder functioning the Review Panel’s reasons record that while he “may suffer from occasional urinary incontinence, the cause of this incontinence is categorically unrelated to traumatic brain injury” and added that the “occasional faecal incontinence referred to within the documentation was unrelated to the traumatic brain injury from the subject accident” and his brain injury was not of sufficient severity to cause faecal incontinence. The Review Panel continued:

11. [28]

    The Review Panel then stated:

12. [29]

    The Review Panel then reiterated the conclusions noted above in relation to Mr Milton’s bladder and bowel functioning and described the information it received from a friend of Mr Milton concerning his overall functioning. The Review Panel concluded as follows:

The Decisions Under Review

1. [30]

   As noted the NRMA challenges the validity of the decision of the Review Panel made under s 15 of the LCS Act. It also seeks to separately challenge the validity of the FIM assessment. In its written submissions it characterised the FIM assessment as the decision of Review Panel “purportedly made under clause 2.2” of the guidelines and s 7 of the LCS Act. The NRMA also sought leave to challenge the FIM decision outside the three month period provided for in Uniform Civil Procedure Rule 59.10(1). It contended that it was appropriate to not immediately challenge the FIM Assessment but instead await receipt of the Review Panel’s decision and that was challenged within the three month period. I accept that contention. The extension will be granted.

2. [31]

   Little attention was given in oral argument to whether certiorari or relief in the nature of certiorari would extend to a FIM assessment. The Guidelines contemplate and, to an extent, authorise the undertaking of a FIM assessment. Section 7 of the LCS Act gives the Guidelines a force of law equivalent to a regulation. In those circumstances the question of whether the FIM assessment was amenable to certiorari or relief in the nature of certiorari would turn upon whether it had a “discernible or apparent legal effect upon rights” in its own right (Hot Holdings Pty Ltd v Creasy [1996] HCA 44; 185 CLR 149, 159). Given that a FIM Assessment can be determinative of whether the criteria for brain injury are satisfied (and were in this case) then that may suffice. It is not necessary to consider this further because, as noted, the FIM Assessment was attached to and, on the view I take, formed part of, the Review Panel’s reasons for its determination. It was not disputed that those reasons form part of the “record” for the purposes of this application and that would extend to the FIM assessment (Supreme Court Act 1970, s 69(3)).

First Ground: alleged causation error

1. [32]

   NRMA’s first ground contends that the Review Panel committed an error of law on the face of the record or fell into jurisdictional error in the manner in which it addressed causation in the passages identified above at [28].

2. [33]

   Clause 2 of the Guidelines specifies three causation inquiries that must be undertaken in determining whether an adult suffering from a brain injury is eligible for participation in the scheme. The first is to determine whether a person had a brain injury “as a result of the motor accident”. The second is whether the brain injury was “caused” by the motor accident. The third is to determine whether the adult scored “5 or less on any of the items on the FIM … due to the brain injury”.

3. [34]

   There was no issue before the Review Panel that the first two of these matters were satisfied, namely that Mr Milton suffered a brain injury as a result of and caused by the motor accident. The Review Panel accepted that Mr Milton suffered a “severe traumatic brain injury” referable to the accident. However the passages objected to by NRMA concerned the third inquiry namely the connection between the brain injury and functional incapacity. In particular the NRMA contended that by inquiring whether the brain injury was either the “sole cause” or even the “main cause” of the incapacity the Review Panel adopted a test that was too strict. The NRMA contended that the Guidelines specify a test that equated to causation at common law and effectively required the brain injury to be “a contributing clause, which is more than negligible”. The written submissions, in support of this ground, referred to the Motor Accident Authority’s Permanent Impairment Guidelines at clauses 1.7 to 1.9 which recite that test and a number of decisions which referred to that test including that of Hidden J in Peet v NRMA Insurance Ltd [2015] NSWSC 558.

4. [35]

   Construed in context the phrases “as a result of” and “due to” most likely correspond with the common law concept of causation (Southern Cross Airline Holdings Ltd v Arthur Andersen & Co (a firm) [1998] ACL 325 FC 87; BC9800953; Nay v SAR & H [1937] CPD 363)). However, it is not necessary to consider this further. Senior Counsel for Mr Milton, Mr Rewell SC, submitted inter alia that, irrespective of whether or not the above passages reveal an erroneous approach to causation on the part of the Review Panel, they do not affect its decision. At the end of the passage in [29] the Review Panel expressed the critical conclusion that Mr Milton did not meet the criteria for eligibility because he “does not score 5 or below on any of the FIM items due to traumatic brain injury”. When that statement is read with the attached FIM assessment it reveals that Mr Milton did not score 5 or below in respect of any item of functional dependence at all irrespective of whether or not any impaired functioning was caused by or due to his brain injury.

5. [36]

   I have explained the structure and content of the FIM assessment sheet above (at [24]). The sheet required the assessors to first determine a score for Mr Milton’s level of functional dependence for each area and, if it was less than 7, then determine whether that was “due to the brain injury”. Thus the first task involved an assessment of Mr Milton’s level of functional impairment irrespective of whether it was “due to” (or caused by) brain injury or not. The outcome of all those assessments was that he did not score lower than a six. Of itself that was fatal to the contention that Mr Milton satisfied the eligibility criteria in the Guidelines. A decision is not liable to be set aside for error of law on the face of the record and nor is it affected by jurisdictional error unless the error is material to the outcome; that is “but for the error, the decision would have been, or might have been, different” (Australian Broadcasting Tribunal v Bond [1990] HCA 33; 170 CLR 321, 353 per Mason CJ; see also SZBYR v Minister for Immigration and Citizenship [2007] HCA 26; 235 ALR 609 at [29]). In this case, but for the alleged error, the decision would definitely not have been different.

6. [37]

   It follows that I reject ground 1 of the application.

Ground 2: Alleged Failure to Set out Lawful Reasons

1. [38]

   Ground 2 of the application contends that the Review Panel failed to comply with so much of clause 17 of the Guidelines that required the inclusion of “written reasons” for the decision included in the certificate issued under s 15(3). A failure to provide such reasons constitutes an error of law on the face of the record (Wingfoot at [28]; Campbelltown City Council v Vegan [2006] NSWCA 284; 67 NSWLR 372 at [31], [33] and [130]; “Vegan”) although it has not yet been decided whether it amounts to a jurisdictional error (Wingfoot at [29]; Vegan at [130]; see also Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales v Secretary of the Treasury [2014] NSWCA 112 at [48] to [58]). This latter point is of potential significance in this case because NRMA seeks to demonstrate the inadequacy of the Review Panel’s reasons by reference to the contents of various materials that do not form part of the record such as medical reports (see Craig v State of South Australia [1995] HCA 58; 184 CLR 163; “Craig”). If a failure to provide proper reasons is not a jurisdictional error then no recourse can be had to that material (Craig at 176). I will assume in NRMA’s favour that a complaint of inadequate reasons does constitute a jurisdictional error so that recourse can be had to that material.

2. [39]

   In the written submissions supporting this ground it was contended that the Review Panel’s reasons were defective because they did not include:

3. [40]

   In support of these contentions the Court was provided with 14 pages of submissions that identified what were said to be inconsistencies in Mr Milton’s presentation and the various medical reports. These were divided into two categories namely the “Urological Issue” and the impact of Mr Milton’s brain injury on his cognitive functioning.

4. [41]

   In relation to the former category three broad complaints were made. The first is that there were differing assessments of Mr Milton’s urinary incontinence and bowel management function in the various medical reports before the Review Panel. These were said to be based on differing histories from Mr Milton. Second, it was submitted that the FIM assessment for these two items contained inconsistent statements by Mr Milton. The relevant part of the FIM Assessment concerning those issues stated as follows:

5. [42]

   The third complaint was that neither the Review Panel nor the members of it who conducted the FIM Assessment addressed or attempted to “deal with” the information that Mr Milton imparted to them regarding his knowledge of the FIM Assessment process. This information is recorded in the emphasised portion of the following passage from the FIM Assessment’s discussion of the score of 7 that Mr Milton received for “comprehension”:

6. [43]

   In relation to the impact on his cognitive functioning the NRMA’s submissions also referred to the contents of various medical reports that were before the Review Panel that were said to express doubts about his cognitive functioning including memory, cognitive fatigue, a tendency to verbosity, problem solving, inappropriate social responses and a difficulty in relaying a coherent personal history. Ultimately it was submitted that the Review Panel simply accepted Mr Milton’s assertions “without any critical evaluation of the reliability of the history provided” and that “no account appears to have been taken” of his concern to present himself in accordance with the FIM criteria as suggested by the above passage.

7. [44]

   These submissions involve two misconceptions. First they continually assert that the Review Panel erred by not considering or addressing some matter such as the supposed inconsistencies in the medical reports and Mr Milton’s statement that he had studied the requirements of FIM Assessments. If established, complaints of that kind do not reveal the Review Panel failed to provide proper reasons although they may reveal that it erred in law in some other respect. In Wingfoot at [55] the High Court described the obligation to provide reasons imposed upon a Medical Panel which was required under s 68(2) of the Accidents Compensation Act 1985 (Vic) to form “its opinion on a medical question referred to it” as follows:

8. [45]

   Second the NRMA’s submissions implicitly attribute to the Review Panel an adjudicative role which required it to address and resolve every disagreement between it and Mr Milton relevant to its application to have Mr Milton join the scheme. That was not the function of the Review Panel. Instead the nature of the function it performed was similar to that of the Medical Panel in Wingfoot which the High Court described as follows (at [47]):

9. [46]

   This passage is applicable to Review Panels acting under s 63 of the Motor Accidents Compensation Act 1999 (Rodger v De Gelder [2015] NSWCA 211 at [108] per Gleeson JA with whom Macfarlan and Leeming JJA agreed; Frost v Kourouche [2014] NSWCA 39; 86 NSWLR 214 at [2] per Basten JA). There is no relevant difference between their functions and the functions of a Review Panel constituted under the LCS Act.

10. [47]

    Once the true nature of the Review Panel’s function is understood then its “actual path of reasoning” is clear. In the passage extracted in [27] the Review Panel acknowledged and understood that there were differing medical opinions concerning Mr Milton’s level of functioning especially his bowel and bladder functioning. Consistent with the above passage from Wingfoot, the Review Panel determined to make its own assessment of his level of functioning. The Panel undertook that task by acknowledging Mr Milton’s stated unwillingness to join the scheme and his knowledge of the FIM Assessment criteria, but nevertheless the members of the Panel used their professional judgment to evaluate his level of functioning.

11. [48]

    This is further evident from considering its approach in relation to the two issues identified by the NRMA. In relation to his bladder and bowel functioning, as noted, the Review Panel addressed Dr Bower’s reports in detail. The Review Panel accepted that the difference in the results he obtained could not be explained “on a medical basis” (see [27]). The Review Panel considered that whatever difficulties he encountered were “categorically unrelated” to his brain injury. I have also set out the contents of the FIM Assessment on that topic. Otherwise I do not accept, as the NRMA contends, that there was any necessary inconsistency in the information conveyed to the FIM Assessors by Mr Milton (see [41]). There is nothing to suggest that the Review Panel considered that was the case.

12. [49]

    In relation to Mr Milton’s cognitive functioning, I have set out the discussion in the FIM Assessment concerning his comprehension (see [42]). The Review Panel’s discussion of his “expression”, “social interaction” and “problem solving” were equally lengthy. It is clear that in conducting the FIM assessment the authors used the opportunity to make detailed observations of his level of cognitive functioning. This is best illustrated by the matter raised by the NRMA concerning Mr Milton’s understanding of the purpose and details of a FIM assessment. While that is capable of raising a suggestion of him tailoring his responses, the fact that Mr Milton was able to obtain that level of understanding was suggestive of him possessing a significant level of cognitive functioning.

13. [50]

    In relation to the NRMA’s four complaints noted in [39] the Review Panel addressed and resolved the allegedly “inconsistent histories” by reviewing and observing Mr Milton and forming their own opinion. In relation to Mr Milton’s credibility and the weight to be given to his version, the Review Panel considered his account in light of the material they had concerning his level of functioning and having regard to their own expertise. The Review Panel specifically acknowledged and took account of the contention that Mr Milton deliberately tailored his evidence twice in its reasons (see [26] and [29]) and once in the FIM Assessment ([42]). Nevertheless, the Review Panel placed particular emphasis on his high level of independent living and their observations of his intellectual capacity when assessing his cognitive functioning.

14. [51]

    Finally, in submissions filed after the hearing, NRMA relied on the following passage from the judgment of Schmidt J in AAI Limited v Fitzpatrick [2015] NSWSC 1108 (“Fitzpatrick”) at ([50] to [51]) as indicative of the approach the Review Panel should have but failed to adopt:

15. [52]

    NRMA also sought to rely on a passage to similar effect from the judgment of Wilson J in AAI Limited v Ali [2015] NSWSC 1068 at [58] to [60].

16. [53]

    I do not accept these passages are of any assistance to the NRMA. These statements must be read in a manner consistent with the two principles from Wingfoot that I have noted above. Further, to adopt the phraseology of the above passage from Fitzpatrick, in this case the Review Panel did partake in an “active intellectual engagement” with the NRMA’s submission and considered the “competing views” they put forward. However that did not require it to undertake a detailed response to every asserted inconsistency to resolve exactly what the source of that inconsistency was, ie was it Mr Milton changing his version, or an inaccurate recording of his condition by the relevant Doctor? Instead the Review Panel “actively engaged” with the NRMA’s contention by determining Mr Milton’s level of functioning for itself. Its reasons record that it did that. They provided the “actual path of reasoning” (Wingfoot at [55]). That was sufficient.

17. [54]

    I reject ground 2.

Conclusion

1. [55]

   It follows that NRMA’s summons will be dismissed. I will order it to pay Mr Milton’s costs. If any party seeks to vary the costs order they can apply to vary it within the time provided for in Uniform Civil Procedure Rule (“UCPR”) 36.16(3A).

2. [56]

   Accordingly the Court orders that:

   1. (1)

      Pursuant to Uniform Civil Procedure Rule 59.10(2) the time in which the plaintiff may challenge the FIM Assessment dated 28 November 2014 be extended up to and including 23 April 2015.

   2. (2)

      The Summons be dismissed.

   3. (3)

      The Plaintiff pay the First Defendant’s costs of the proceedings; and

   4. (4)

      There be no order as to the Second and Third Defendants' costs of the proceedings.