IAG Ltd t/as NRMA Insurance v Abiad

1. [1]

   HIS HONOUR: By summons filed on 23 March 2018, IAG Ltd t/a NRMA Insurance seeks the following relevant orders:

   1. (1)

      An order in the nature of certiorari or, alternatively, a declaration setting aside or declaring invalid the decisions of the fourth defendant, Richard Buckley, in his capacity as a claims assessor of the State Insurance Regulatory Authority of New South Wales (SIRA), the third defendant, dated 7 February 2018, in respect of the first defendant, and 8 February 2018 in respect of the second defendant to refuse the plaintiff’s applications for an exemption (“the decisions”) made pursuant to s 92(1)(b) of the Motor Accidents Compensation Act 1999 (“the Act”).

   2. (2)

      An order in the nature of prohibition or, alternatively, an injunction preventing the defendants or any of their officers, servants or agents from acting on or taking any further step in reliance on the decisions.

   3. (3)

      An order in the nature of mandamus, remitting the matters to the third defendant for allocation of a different claims assessor to re-determine the plaintiff’s exemption applications according to law.

2. [2]

   The grounds upon which the plaintiff claims to be entitled to relief are in summary as follows.

3. [3]

   The first and second defendants were injured in a motor vehicle accident that occurred on 24 February 2014 and they each lodged a claim for personal injury damages against the plaintiff with the third defendant. The first and second defendants are husband and wife. Their personal injury damages claims came to be heard before a claims assessor, appointed by the third defendant pursuant to s 99 of the Motor Accidents Compensation Act 1999. Evidence in one case was to be evidence in the other.

4. [4]

   In the course of the proceedings before the third defendant, the plaintiff made a number of formal applications, both oral and written, seeking an exemption of the first and second defendants’ personal injury damages claims from being assessed by SIRA pursuant to Part 4.4 and Chapter 5 of the Act. The applications were all made pursuant to s 92(1)(b) of the Act and upon the basis that the plaintiff had notified the first and second defendants of an allegation that they had made a false or misleading statement in a material particular in relation to the injuries, loss or damage it was alleged they had sustained in the accident.

5. [5]

   A claims assessor, the fourth defendant, determined the applications on 7 February 2018, in respect of the first defendant, and 8 February 2018 in respect of the second defendant. The exemption applications were all refused. Written reasons were provided. The claims assessor determined that the matters were suitable for assessment at the Claims Assessment and Resolution Service (“CARS”), a unit of the third defendant established by s 98 of the Act.

6. [6]

   The plaintiff contends that there are a number of jurisdictional errors and/or errors of law on the face of the record that occurred in the making of the decisions within the meaning of s 69 of the Supreme Court Act 1970. Alternatively, the plaintiff alleges that the claims assessor constructively failed to exercise his statutory power in making the decisions.

7. [7]

   As to the first defendant, the claims assessor’s reasons expressly incorporated the reasons for decision as to earlier exemption applications that were made by the plaintiff in the proceedings dated 1 May 2017, 5 September 2017 and (part of) 12 December 2017. As for the second defendant, the claims assessor’s reasons expressly incorporated the reasons for decision as to earlier exemption applications that were made by the plaintiff in the proceedings dated 6 or 7 February 2018 (in the first defendant’s matter), in part, and dated 1 May 2017, 5 September 2017 and (part of) 12 December 2017.

8. [8]

   With respect to the decisions relating to both the first and defendant, the plaintiff identified two alleged errors.

9. [9]

   The claims assessor misunderstood or misconstrued the scope and nature of his power pursuant to s 92(1)(b) of the Act and incorrectly applied that power to the applications. He approached the question to be determined on the basis that the alleged false or misleading statements had to be “evaluated” in the context of all the material provided by the defendants and as to the seriousness of the alleged statements. The plaintiff contends that this approach was wrong in law. It was not the correct legal approach. Accordingly, the decisions are invalid.

10. [10]

    The claims assessor in fact evaluated the alleged false or misleading statements and made factual findings and determinations about their seriousness in his decisions. Such findings were not open to him. Accordingly, the decisions are invalid.

11. [11]

    The plaintiff maintains that in these circumstances the decisions are invalid and should be set aside.

Guiding principles

1. [12]

   These proceedings invoke the Court’s judicial review (or supervisory) jurisdiction derived from s 69 of the Supreme Court Act which provides for the making of orders “in the nature of” the former prerogative writs, such as the former writ of certiorari. This jurisdiction is important as it enables the supervision of executive and administrative decision making in New South Wales. It is constitutionally recognised and protected by s 73 of the Commonwealth Constitution: see Kirk v Industrial Court of NSW (2010) 239 CLR 531; [2010] HCA 1 and the Hon JJ Spigelman AC, “The Centrality of Jurisdictional Error” (2010) 21 Public Law Review 77.

2. [13]

   All that is required for the plaintiff to establish a judicial review case and enliven the Court’s power to issue remedies is for the Court to find an error of law on the face of the record, being the written reasons: see Supreme Court Act, s 69(3), (4). Errors of law on the face of the record need not be errors going to jurisdiction: Garcia v Motor Accidents Authority of NSW (2009) 54 MVR 102; [2009] NSWSC 1056 at [21]–[24]; see also Kirk at [66]–[70] and [78]–[90].

Procedural history

1. [14]

   The motor vehicle accident occurred on 24 February 2014. The first defendant was driving with his wife, the second defendant, as his passenger. A driver insured by the plaintiff collided with their vehicle.

2. [15]

   On 17 September 2014, the plaintiff admitted liability for the claims.

3. [16]

   On 22 January 2016, the second defendant applied for CARS assessment and the first defendant did so on 15 June 2016. The third defendant appointed Mr Watts as the claims assessor for both matters.

4. [17]

   At preliminary conferences on 12 August 2016 and 26 October 2016, the parties agreed that both matters should be heard together, with evidence in one to be evidence in the other. They agreed that the matters were appropriate for CARS assessment. The matters were given a hearing date of 7 February 2017.

5. [18]

   On 6 February 2017, in breach of earlier directions, the plaintiff served surveillance material, most of which it had possessed for several months.

6. [19]

   At the assessment hearing on the following day, the first defendant withdrew his claim for domestic assistance provided by the second defendant, thereby reducing his claim from $185,049 to $24,746, now limited to a claim for past and future medical expenses plus regulated costs. Mr Watts declined to allow reliance on the lately served surveillance material. The plaintiff then indicated for the first time that it wished to make an exemption application under s 92(1)(b) of the Act. This was the first exemption application. This meant the assessment hearing could not proceed.

7. [20]

   In written submissions, the plaintiff argued that the matters were unsuitable for CARS assessment because the first and second defendants had allegedly made false or misleading statements in connection with their claims. By decisions dated 1 May 2017, Mr Watts refused the exemption application and held that the claims were suitable for CARS assessment.

8. [21]

   On 10 May 2017, the plaintiff wrote to Mr Watts alleging jurisdictional error and requesting him to “reconsider” his exemption determination. This was the second exemption application. On 5 June 2017, the third defendant reallocated the claims to Mr Buckley as Mr Watts had become unavailable. Mr Watts did not determine the second exemption application.

9. [22]

   By written submissions dated 16 June 2017, the plaintiff applied for Mr Buckley to consider the exemption issue “afresh”. This is the third exemption application. By decisions dated 5 September 2017, Mr Buckley refused the third exemption application for each claim.

10. [23]

    At preliminary conferences on 20 September 2017, the parties again agreed that the matters were ready for hearing. They were allocated a hearing date of 11 December 2017. At the commencement of this hearing, the plaintiff re-agitated its exemption application on the same grounds covered by the decisions dated 5 September 2017. This is the fourth exemption application. It was rejected for the same reasons.

11. [24]

    On 11 December 2017, the first defendant’s claim was part-heard. His cross- examination, and thus the evidence, had all but completed. The matter was stood over to 12 February 2018. During lengthy cross-examination on the surveillance material, the first defendant said to the plaintiff’s counsel, “If you use the word liar to my wife I will make you the biggest liar ever”, which the plaintiff’s counsel took as a threat. This prompted an oral exemption application. This is the fifth exemption application. This application was based on the alleged threat. The application was refused. The second defendant’s claim was not reached and was also stood over to 12 February 2018.

12. [25]

    By written submissions dated 23 December 2017, the plaintiff made a further exemption application. This is the sixth exemption application. The plaintiff again relied on the alleged “threat” and asserted that cross-examination of the first defendant had “made good” the allegations of false and misleading statements. By the decisions dated 7 and 8 February 2018, Mr Buckley refused the sixth exemption application and again held that the claims were suitable for CARS assessment. His reasons for decision incorporated, by reference, Mr Watt’s reasons of 1 May 2017 and Mr Buckley’s reasons of 5 September 2017.

13. [26]

    On 8 February 2018, the plaintiff emailed Mr Buckley noting that it intended to seek judicial review of the decisions of 7 and 8 February 2018. In a separate email, the plaintiff requested that Mr Buckley recuse himself from considering the claims by reason of his “handling of the [alleged] threat”.

14. [27]

    On 9 February 2018, at the plaintiff’s request, Mr Buckley vacated the fixtures listed for 12 February 2018 pending the conclusion of the judicial review proceedings. By email on 12 February 2018, Mr Buckley refused the recusal application.

15. [28]

    In summary, despite twice agreeing that the claims were suitable and ready for assessment, the plaintiff resiled from that position and brought six materially identical exemption applications that twice required the assessment hearing to be vacated and which have now delayed the proceedings for 18 months. This occurred despite:

Plaintiff’s submissions

1. [29]

   The plaintiff submitted that the claims assessor misunderstood or misconstrued the scope and nature of his power pursuant to s 92(1)(b) of the Act and incorrectly applied that power to the applications. He approached the question to be determined on the basis that the alleged false or misleading statements had to be “evaluated” in the context of both the material provided by the first defendant and the seriousness of the alleged statements.

2. [30]

   The error is said to be found at paragraph 5 of the claims assessor’s decision dated 7 February 2018 in which he specifically incorporated the:

3. [31]

   More particularly, at paragraphs [35]–[42] of his Procedural Decision in relation to the first defendant dated 5 September 2017, the claims assessor specifically “evaluated” each of the false or misleading statements.

4. [32]

   In relation to the walking stick, the claims assessor found that the statement was not “false” because there was a significant temporal deficiency in the plaintiff’s labelling of the first defendant’s statement as false. With respect to the lawn mowing, the claims assessor found (although “without making a determinative statutory interpretation”) that an historical statement should relate to “the claim” which in his view is the claim being pursued by the first defendant. In relation to prior injuries and the claim form, the claims assessor found there was some substance to the plaintiff’s allegations but then found that the statement in question may or may not have been an error or an oversight. With respect to the loss of consciousness, the claims assessor found it conceivable that the statement in question could be false but that it equally could be true. Finally, in relation to driving and walking capacity, the claims assessor found that the surveillance and Facebook material were isolated short-time recordings of the first defendant’s activities which were not inconsistent with his statements, given the vagaries of estimations of time and distance.

5. [33]

   The plaintiff contended that such an approach was wrong in law and that there was a constructive failure on the part of the claims assessor to exercise his jurisdiction by erroneously proceeding to “evaluate” for himself each of the alleged false or misleading statements when determining the applications: see Allianz Australia Insurance Ltd v Tarabay at [65]–[67], Insurance Australia Ltd t/as NRMA Insurance v Banos (2013) 65 MVR 312; [2013] NSWSC 1519 at [35]–[43] and Insurance Australia Ltd t/as NRMA Insurance v Taylor (2017) 80 MVR 190; [2017] NSWSC 507 at [34].

6. [34]

   In erroneously “evaluating” the statements for himself, the claims assessor allowed that evaluation to infect his decision-making by expressly finding, for example, that “the various inconsistencies and statements submitted by the [plaintiff]” were “at one end of the spectrum”: see Procedural Decision in relation to the first defendant dated 5 September 2017 at [48] and [50].

7. [35]

   The plaintiff maintained that these were impermissible and unlawful findings that were critical to the claims assessor’s consideration of the suitability of the claim for assessment within the CARS process. This was not the correct legal approach. Accordingly, the decision is invalid.

8. [36]

   The plaintiff again submitted that the claims assessor misunderstood or misconstrued the scope and nature of his power under s 92(1)(b) of the Act and that he incorrectly applied that power to the applications. He is said to have approached the question to be determined on the basis that the alleged false or misleading statements had to be “evaluated” and determined or partly determined in the context of both the material provided by the second defendant and the seriousness of the alleged statements.

9. [37]

   The error is said to be found at paragraph 5 of the claims assessor’s decision dated 8 February 2018 in which he specifically incorporated the:

10. [38]

    More particularly, at paragraphs [37]– [42] of his Procedural Decision in relation to the second defendant dated 5 September 2017, the claims assessor specifically “evaluated” each of the false or misleading statements. In relation to the lawn mowing, the claims assessor found that the second defendant’s statement was made in error and further that if she were intending to mislead in her witness statement, it was “falsity without guile”. The claims assessor went on to find that the error was logically plausible given that the second defendant was illiterate even in her own language. Concerning her pre-existing depression, the claims assessor specifically found that “it would be unsafe to conclude that the [second defendant] made a false or misleading statement”. With respect to previous back pain, the claims assessor found that the statement in question was simply made in error and was not misleading. Finally, in relation to her inability to walk to the shops, the claims assessor found that the statement in question was “not necessarily indicative of being considered ‘false or misleading’.”

11. [39]

    The plaintiff contended that this approach was wrong in law. There was a constructive failure on the part of the claims assessor to exercise his jurisdiction by erroneously proceeding to “evaluate” each of the alleged false or misleading statements when determining the applications. In doing so, the claims assessor then allowed that evaluation to infect his decision-making by expressly finding that “the various inconsistencies and statements submitted by the [plaintiff]” were “at one end of the spectrum”: see Procedural Decision in relation to the second defendant dated 5 September 2017 at [48] and [50]. The plaintiff submitted that, on any view, these unlawful findings were critical to the claims assessor’s consideration of the suitability of the claim for assessment within the CARS process. This is said to be an incorrect legal approach that invalidates the decision.

12. [40]

    The second error overlaps with the first. The claims assessor impermissibly "evaluated" the alleged false or misleading statements and made factual findings and determinations about their seriousness in his decisions in the manner set out above. Such findings were not open to him: Insurance Australia Ltd t/as NRMA Insurance v Taylor at [38].

The first and second defendants’ submissions

1. [41]

   The defendant’s drew attention to the following. On the one hand, in Insurance Australia Ltd t/as NRMA Insurance v Banos at [42], Campbell J said :

2. [42]

   On the other hand, an assessor must still “undertake some evaluation of the allegation of the making of a false and misleading statement in order to determine if the allegation is such that overall the claim is not suitable for a CARS assessment”: Insurance Australia Ltd t/as NRMA Insurance v Milton (2016) 78 MVR 391; [2016] NSWSC 1521 at [26]. In forming this “preliminary view”, the “seriousness of what has been alleged must be a consideration”: Insurance Australia Ltd t/as NRMA Insurance v Taylor at [38].

3. [43]

   According to the defendants, the claims assessor formed a preliminary view about the plaintiff’s allegations. However, contrary to the plaintiff’s contentions, he did not make concluded factual findings. For example, he said at [17], “I certainly have not made factual findings at this stage”. The defendant contends that as the reasons make plain, the claims assessor undertook a preliminary evaluation of the allegations, including their apparent strength and seriousness, in order to determine if the claims were suitable for a CARS assessment.

4. [44]

   With respect to the first defendant, the claims assessor reached the following preliminary views:

5. [45]

   With respect to the second defendant, the claims assessor reached the following preliminary views:

6. [46]

   In response to the plaintiff’s contentions in this respect, the defendants submitted that the claims assessor properly undertook only a preliminary evaluation of the statements, and did not make concluded factual findings.

Legislative framework

1. [47]

   The following provisions of the Act should be noted:

2. [48]

   The following clauses of the Claims Assessment Guidelines should also be noted:

3. [49]

   A convenient overview of the statutory compensation scheme under the Act is set out in Checchia v Insurance Australia Ltd t/as NRMA Insurance (2009) 54 MVR 55; [2009] NSWSC 1005 at [7]–[11]. The scheme of the Act is also described in great detail in relation to claims assessors in Insurance Australia Ltd t/as NRMA Insurance v Hutton-Potts (2010) 57 MVR 194; [2010] NSWSC 1446 at [13]–[29].

4. [50]

   Claims assessors are empowered by and are to have regard to the SIRA Claims Assessment Guidelines made under the Act.

The allegations

1. [51]

   As already noted, the plaintiff’s applications for exemption proceeded under s 92(1)(b) of the Act and cl 14.16.11 of the Claims Assessment Guidelines. The plaintiff contended that the matters ought to have been exempted on discretionary grounds. The basis for the applications was said to arise out of a series of false and misleading statements, within the meaning of s 117 of the Act, which the plaintiff alleges have been made by the first and second defendants in connection with material aspects of their claims. It becomes necessary to describe those allegations in terms. The following extracts are taken from the plaintiff’s submissions dated 17 February 2017 in support of the exemption applications made below.

2. [52]

   The following allegations relate to the first defendant:

3. [53]

   The following allegations relate to the second defendant:

The decisions

1. [54]

   The first decision contains the following reasons of the claims assessor, which it becomes necessary for present purposes to repeat:

2. [55]

   The second decision contains the following reasons of the claims assessor, which it is also necessary for present purposes to repeat:

Relevant judicial authorities

1. [56]

   In Insurance Australia Ltd t/as NRMA Insurance v Banos, the claimant was injured in a motor vehicle accident and sought compensation pursuant to the provisions of the Act. In making the application the claimant asserted that one of her principal injuries was an injury to her right hand which required surgery. She completed a claim form in which she stated that she had not had any other injury to her hand and that she had never made a claim for personal injury compensation. The insurer subsequently came into possession of material showing that the claimant had in fact made a claim for injury sustained in a motor vehicle accident in 2005 that had been assessed by a claims assessor. There was also evidence that she had suffered a fall in 2006 resulting in shoulder pain of which she was continuing to complain in 2009. There was also evidence that about two weeks before the subject accident, the claimant had consulted her general practitioner complaining of an inability to cope with the demands made upon her by her family, at which time she was prescribed anti-depressant medication. Finally, the insurer had covertly obtained footage which was said to demonstrate the claimant freely using her hand and arm.

2. [57]

   The insurer relevantly made an application pursuant to s 92(1)(b) for discretionary exemption from the statutory assessment process on the basis of the claimant having made false and misleading statements.

3. [58]

   At [37]–[39], Campbell J said this:

4. [59]

   His Honour continued at [43] in the following terms:

5. [60]

   In Insurance Australia Ltd t/as NRMA Insurance v Taylor, the claimant was injured in a motor vehicle accident and lodged a claim for compensation. The insurer made an application seeking an exemption from the statutory assessment process upon the basis that the claimant had made false and misleading statements in relation to his claim, and that difficulties were being experienced in obtaining relevant medical records in the absence of being able to issue a subpoena. The application was opposed and the assessor rejected it, concluding that the matter was suitable for assessment because the insurer had not alleged fraud. Moreover, in circumstances where the insurer’s complaint was that inaccurate histories had been given to doctors which may have an impact upon their opinions and conclusions, there was no reason why such histories could not be provided and sent to the relevant doctors for comment.

6. [61]

   The insurer sought judicial review of the assessor’s decision on the basis that she had misunderstood and misconstrued the provisions of s 92(1)(b) of the Act.

7. [62]

   Davies J quashed the assessor’s decision and remitted the matter to be dealt with according to law by a different assessor. At [33]–[36], his Honour said this:

8. [63]

   His Honour went on at [38] to say the following:

9. [64]

   His Honour’s conclusion is to be found at [40] in these terms:

10. [65]

    Although I was referred to other decisions by both sides, most of which are referred to in either Banos or Taylor, it is presently unnecessary to consider them.

Consideration

1. [66]

   Having regard to the skilful way in which this case was argued before me, the difference between the parties distilled to a question of whether or not the claims assessor did more than merely express a preliminary view about or upon the plaintiff’s allegations that the first and second defendants provided false and misleading particulars in relation to their claims. That in turn narrowed the inquiry to a semantic assessment of what the claims assessor had to say about those allegations.

2. [67]

   The plaintiff drew attention to the claims assessor’s statement at [37] of his reasons with respect to the first defendant’s walking stick references that there was, “in [his] view, a significant temporal deficiency in the insurer’s labelling of the claimant’s statements as false”. The plaintiff contended that this was no more and no less than a finding that the statement was not false: it was not preliminary in any acceptable sense of the term.

3. [68]

   Similarly, in reference to the lawn mowing issue at [38] of the claims assessor’s reasons with respect to the first defendant, where he indicated that the first defendant “may” have made a false or misleading statement. He continued, saying that “without making a determinative statutory interpretation it would seem that an historical statement should relate to ‘the claim’, which is in my view the claim being pursued by the claimant”. The plaintiff argued that these words indicate in effect that the claims assessor had erroneously dismissed the plaintiff’s allegation in a final, determinative sense.

4. [69]

   With respect to the prior injuries issue at [39] of the claims assessor’s reasons in relation to the first defendant, he asked rhetorically, “Was it an error was it an oversight as posited in the claimant submissions? Maybe both, maybe neither”. According to the plaintiff, when the claims assessor went on to say that “what is significant is that the insurer was aware of the basis of this allegation for some two years before it was subsequently made [thus amounting to] a factor which must be considered as to the falsity and particularly the ‘misleading’ character of the statements”, he was unambiguously not dealing with the plaintiff’s allegation in the context of s 92(1)(b) and cl 14.16.11 but was on the contrary expressing a final and ultimately dismissive view concerning it.

5. [70]

   So far as concerned the loss of consciousness issue, dealt with by the claims assessor at [40] of his reasons with respect to the first defendant, the plaintiff maintained that the words “it was certainly clear to both parties … [that] any head trauma was negligible and of no significance” was a clear rejection of the plaintiff’s allegation on this topic. The plaintiff submitted that in dealing with the allegation in this way, the claims assessor clearly dismissed it and thereby erroneously put it beyond the scope of his determination.

6. [71]

   Finally with respect to the first defendant, the plaintiff contended that the claims assessor’s disposal of the driving and walking capacity issue at [41] of his reasons, saying that the plaintiff’s conclusions derived “from the surveillance and Facebook material are isolated short time recordings of the claimant’s activities” and were “not inconsistent with the claimant’s statements”, was a somewhat peremptory dismissal of the plaintiff’s allegations. It was in effect a final finding dismissing the plaintiff’s allegations entirely.

7. [72]

   In general, the plaintiff maintained that, by reference to these excerpts, it was clear that the claims assessor had proceeded to assess whether the allegations were in fact false or misleading. This was an erroneous approach and amounted to jurisdictional error.

8. [73]

   In relation to the second defendant, the plaintiff maintained that the claims assessor had made similar errors. For example, with respect to the lawn mowing issue referred to at [38] of his reasons, the claims assessor appears to have formed the view that the second defendant engaged at worst in what he described as “falsity without guile”. In expressly accepting the second defendant's submission that it was “logically plausible” that what she did was simply an error, the claims assessor has in fact proceeded to reject the plaintiff’s allegation. That is said by the plaintiff to be an impermissible approach amounting to error.

9. [74]

   So far as concerns the pre-existing depression issue, dealt with by the claims assessor at [39] of his reasons, the plaintiff relied upon his words “it would be unsafe to conclude that the claimant knowingly made a false or misleading statement” as clearly indicative of error. That is said to be so particularly having regard to the fact that the claims assessor accepted that the second defendant had made a statement to another assessor “that is not correct”. The plaintiff maintained that these words indicate that the claims assessor has erroneously proceeded to decide the issue, rather than simply to make a permissible preliminary assessment of it.

10. [75]

    As indicated, the defendants’ response has been to contend that the claims assessor in fact remained within the boundaries of what was permissible in the circumstances. This is said to be clear from both a fair reading of the language that he used as well as his reference in terms to the fact that his views were preliminary only.

11. [76]

    It is not the role of a claims assessor to second guess an insurer’s allegations that a claimant has made a false or misleading claim. Section 92(1)(b) and cl 14.16.11 implicitly recognise the fact that in an appropriate case an insurer’s claims ought to be tested in a courtroom and be exposed to the type of forensic examination that the assessment process, to some extent at least, cannot necessarily provide. Much has been written about this already and it is unnecessary to expand upon it here. The simple proposition is that a claims assessor’s task when an application has been made is to assess the allegation and whether it is not suitable for assessment under the relevant Part. The assessor’s role is not to determine the truth or even the strength of the insurer’s allegations.

12. [77]

    In my opinion, error is established in the present case either because there has been a constructive failure on the part of the assessor to exercise his jurisdiction or because he has not correctly dealt with the question that he ought to have asked. The question he was required to answer was whether the claims were not suitable for assessment on the basis that there was an allegation that the first or second defendants had made false or misleading statements in a material particular in relation to their injuries.

Discretionary considerations

1. [78]

   The first and second defendants submitted that any relief to which the plaintiff might otherwise be found to be entitled should be refused on discretionary grounds. They relied upon abuse of process, delay and futility.

2. [79]

   The defendants emphasised that repeated applications for interlocutory orders will constitute an abuse of process if they are “unjustifiably vexatious and oppressive”: D A Christie Pty Ltd v Baker [1996] 2 VR 582 at 603–4; Nominal Defendant v Manning (2000) 50 NSWLR 139; [2000] NSWCA 80. They submitted that the five exemption applications, brought on materially identical grounds, satisfy that description. In the result, the first defendant’s modest claim remains part-heard some 18 months after it was originally listed to be heard, and the second defendant’s claim has not been heard at all. There are significant costs implications in these circumstances, having regard to the statutory limitations upon recoverable costs under Chapter 6 of the Act and Schedule 1 to the Motor Accidents Compensation Regulation 2015.

3. [80]

   The defendants contended that granting the relief sought by the plaintiff would only further this oppression.

4. [81]

   The first and second defendants also submitted that the plaintiff’s entitlement to relief ought to be refused because of delay, arguing that an applicant for judicial review may be denied relief where there is unreasonable or unwarrantable delay in seeking a remedy: R v Australian Broadcasting Tribunal; Ex parte Fowler (1980) 31 ALR 565 at 568. Unreasonableness is assessed in all of the circumstances: R v Transport Regulation Board [1940] VLR 19 at 34.

5. [82]

   In the present case, the claims were lodged on 13 March 2015 and 13 July 2016. The plaintiff delayed until 7 February 2017, which was the first day set for the hearing, to bring the first exemption application. The defendants submitted that this was contrary to the intention of the Act that any redirection to the court system should occur “at an early time”: Insurance Australia Ltd t/as NRMA Insurance v Taylor at [32]; Insurance Australia Ltd t/as NRMA Insurance v Banos at [43(b)].

6. [83]

   The defendants submitted that the plaintiff should have sought judicial review by mid-2017 at the latest and at the very least should have done so following the 5 September 2017 determinations. Instead, the plaintiff persisted thereafter for many months making repeated applications based upon the same facts before finally seeking judicial review on 23 March 2018. The defendants maintained that these delays were unreasonable, well beyond the time prescribed by UCPR 59.10 and ought to disentitle the plaintiff to relief.

7. [84]

   The defendants argued that relief should also be refused where it is clear that the decision-maker will later validly decide against the applicant for exemption: Riverina Transport Pty Ltd v Victoria (1937) 57 CLR 327; [1937] HCA 33 at 342–343; QBE Insurance (Australia) Ltd v Motor Accidents Authority of NSW (2013) 63 MVR 470; [2013] NSWSC 549 at [83]–[86]. The defendants submitted that “no reasonable assessor would find that the first defendant’s part heard claim (which is essentially completed before the assessor) for medical expenses of $24,746 plus regulated costs should be removed from CARS (with all incurred costs thereby thrown away) and commenced afresh in the Local Court”. The defendants also submitted that “the second defendants claim is similarly unremarkable and could not justifiably be removed from CARS with all the wasted costs and delay this would now bring”. The defendants contended that “exemption from CARS would be manifestly inconsistent with the just and expeditious resolution of claims”.

Consideration

1. [85]

   Relief in the nature of certiorari and mandamus is discretionary. “[T]here is no closed category of cases in which such relief may be refused on discretionary grounds”: Sasterawan v Morris [2008] NSWCA 70 at [73]. Grounds for refusing relief include “if a more convenient and satisfactory remedy exists, if no useful result could ensue, if the party has been guilty of unwarrantable delay or if there has been bad faith on the part of the applicant, either in the transaction out of which the duty to be enforced arises or towards the court to which the application is made”: R v Commonwealth Court of Conciliation and Arbitration; Ex parte Ozone Theatres (Aust) Ltd (1949) 78 CLR 389; [1949] HCA 33 at 400.

2. [86]

   In my opinion, there is in the present case no basis upon which to refuse relief to the plaintiff on discretionary grounds. It is not in my view correct to say that another assessor would necessarily or inevitably reach the same conclusion as Mr Buckley in the present case. It is inappropriate to say more about that here.

3. [87]

   The delays have certainly been not inconsiderable. The multiplicity of exemption applications is indeed extraordinary in my experience. Fundamentally, however, in the course of his consideration of the plaintiff’s several exemption applications, the claims assessor repeated the errors which the plaintiff has successfully highlighted in this Court. It was in one sense procedurally prudent for the plaintiff to attempt to have the claims assessor reconsider his position, having regard to the type of error that the plaintiff was asserting he was making. The course of repeated applications adopted by the plaintiff may in hindsight appear to have been ill advised but the provision of a different result from the claims assessor was not to my mind a forlorn prospect. The plaintiff is in this sense as much a victim of delay as the defendants.

4. [88]

   I am equally not satisfied that the plaintiff has been engaged in any abuse of process. I did not understand the defendants to maintain this contention with particular enthusiasm in any event.

Orders

1. [89]

   Accordingly, I make the following orders:

   1. (1)

      An order in the nature of certiorari quashing the orders of the fourth defendant made on 7 and 8 February 2018.

   2. (2)

      An order in the nature of mandamus remitting the matters to the third defendant for allocation to a different claims assessor to determine the plaintiff’s exemption applications in accordance with law.

   3. (3)

      Reserve costs.

   4. (4)

      Direct the plaintiff and the first and second defendants within 21 days to provide my Associate with written submissions not exceeding three pages addressing the question of who should pay the costs of these proceedings.