Hayek v Trujillo [2007] NSWCA 139 (18 June 2007)

Last Updated: 20 June 2007

NEW SOUTH WALES COURT OF APPEAL

CITATION: Hayek v Trujillo [2007] NSWCA 139


FILE NUMBER(S):
40774/05

HEARING DATE(S): 4 June 2007

JUDGMENT DATE: 18 June 2007

PARTIES:
Jenny Hayek - Appellant
Guadalupe Rojas Trujillo - Respondent

JUDGMENT OF: Mason P Ipp JA McColl JA

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 1743/05

LOWER COURT JUDICIAL OFFICER: Naughton DCJ

LOWER COURT DATE OF DECISION: 31 August 2005


COUNSEL:
PCB Semmler QC / RI Goodridge - Appellant
K Rewell SC - Respondent

SOLICITORS:
Firths Compensation Lawyers - Appellant
TL Lawyers - Respondent

CATCHWORDS:
STATUTORY INTERPRETATION – Motor Accidents Compensation Act 1999 (NSW), ss 73, 94, 96 and 108 – whether, by s 73(3), the respondent lost the right to challenge the appellant’s claim on the ground of delay – whether the trial judge was entitled to dismiss the proceedings under s 73(4) – whether, in the alternative, by reason of the application of s 96(4), the respondent lost the right to challenge the appellant’s claim on the ground of delay – whether the appellant’s statement of claim was filed in breach of s 108(1) – whether a certificate relating to the assessment of a dispute issued under s 96 was a certificate in respect of a claim under s 94

LEGISLATION CITED:
Motor Accidents Compensation Act 1999 (NSW), ss 6, 72, 73, 80, 81, 82, 83, 84, 85, 92, 94, 96, 108, 222
Workers Compensation Act 1987 (NSW), s 151C

CASES CITED:
Berowra Holdings Pty Ltd v Gordon [2006] HCA 32; (2006) 225 CLR 364
Dollak v Schilpzand (Unreported, District Court of New South Wales, Delaney DCJ, 2 September 2005)
Poles v Broadbent (Unreported, District Court of New South Wales, Garling DCJ, 17 December 2004)

DECISION:
Appeal dismissed with costs.


JUDGMENT:

IN THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

40774/05

MASON P

IPP JA

McCOLL JA

Monday 18 June 2007

Jenny Hayek v Guadalupe Rojas Trujillo

Judgment

1 MASON P: I agree with Ipp JA.

2 IPP JA:

The appellant’s claim and the hearing of the respondent’s notice of motion

3 On 9 May 2005, the appellant commenced proceedings in the District Court for damages for personal injuries. Her claim arose out of a motor accident. The statement of claim alleged “these proceedings are commenced pursuant to a certificate under s 96(1)(a) of the [Motor Accidents Compensation Act 1999 (NSW)] and issued in accordance with s 94 of the Act (as it applies by s 96(3)) dated 9 March 2005.”

4 The respondent thereupon applied by notice of motion to the District Court for an order that “[the appellant’s] Statement of Claim be dismissed pursuant to s 73(4) of the Motor Accidents Compensation Act 1999 (NSW)”.

5 Section 73(4) of the Act provides:

“(4) A court must dismiss proceedings commenced in respect of a late claim if the court is satisfied that the claimant does not have a full and satisfactory explanation for the delay in making the claim.”

6 The order sought in the notice of motion suggested, by its terms, that the respondent was contending that the appellant did not have a full and satisfactory explanation for a delay in making her claim.

7 There was, in fact, a delay on the part of the appellant in making her claim. Section 72(1) provides that a claim must be made within six months after the date of the accident. The motor accident in which the appellant was injured occurred on 1 May 2001. She made her claim on 23 June 2003, long after the requisite six-month period.

8 Nevertheless, as Naughton DCJ (the judge who heard the matter) pointed out, in the proceedings before him the respondent adverted only to material relevant to whether or not his insurer had, within the two-month period laid down by s 73(3)(a), asked the appellant “to provide a full and satisfactory explanation for the delay in making the claim”. Moreover, the appellant relied only on affidavits directed to the same point, namely, whether – by reason of s 73(3)(a) – the respondent or his insurer had lost their right to challenge the appellant’s claim on the grounds of delay.

9 The reason for this approach on the part of the parties lay in the fact that, despite the terms of the notice of motion, at the inception of the hearing both accepted that the s 73(3)(a) issue was the sole question to be agitated.

10 Section 73(3)(a) provides:

“If, within 2 months after receiving a late claim for which no explanation for delay is provided, the insurer does not reject the claim or ask the claimant to provide a full and satisfactory explanation for the delay in making the claim, the insurer (and the person against whom the claim is made) lose the right to challenge the claim on the ground of delay.”

11 The appellant contended that, within the two-month period under s 73(3)(a), the appellant’s insurer had neither rejected her late claim nor asked her to provide a full and satisfactory explanation for the delay in making it. The appellant contended that these omissions meant that the respondent had lost the right to challenge her claim on the ground of delay.

12 At one point in the hearing, the judge invited counsel for the appellant to seek an adjournment if he wished to put on evidence about the lack of a satisfactory explanation for the delay, but the appellant did not seek to take advantage of this invitation.

13 The evidence before the judge revealed that, on 9 March 2005, a claims assessor had issued a certificate to the parties under the Act. This was the certificate referred to in the statement of claim as being one issued under s 96(1)(a) in accordance with s 94 (as it applies by s 96(3)). His Honour, of his own motion, raised the question whether this certificate was sufficient to establish compliance by the appellant with s 108(1) of the Act.

14 Section 108(1) is in the following terms:

“108 Claims assessment or exemption pre-condition for commencement of court proceedings

(1) A claimant is not entitled to commence court proceedings against another person in respect of a claim unless:

(a) the Principal Claims Assessor has issued a certificate in respect of the claim under section 92 (Claims exempt from assessment), or

(b) a claims assessor has issued a certificate in respect of the claim under section 94 (Assessment of claims).”

15 Section 92 (referred to in s 108(1)(a)) provides:

“92 Claims exempt from assessment

(1) A claim is exempt from assessment under this Part if:

(a) the claim is of a kind that is exempt under MAA Claims Assessment Guidelines or the regulations, or

(b) a claims assessor has made a preliminary assessment of the claim and has determined (with the approval of the Principal Claims Assessor) that it is not suitable for assessment under this Part.

(2) If a claim is exempt from assessment under this Part, the Principal Claims Assessor must, as soon as practicable, issue the insurer and claimant with a certificate to that effect (enabling court proceedings to be commenced in respect of the claim concerned).”

16 Section 94 (referred to in s 108(1)(b)) provides:

“94 Assessment of claims

(1) The claims assessor is, in respect of a claim referred to the assessor for assessment, to make an assessment of:

(a) the issue of liability for the claim (unless the insurer has accepted liability), and

(b) the amount of damages for that liability.

(2) Such an assessment is to be made having regard to such information as is conveniently available to the claims assessor, even if one or more of the parties to the assessment does not co-operate or ceases to co-operate.

(3) The assessment is to specify an amount of damages.

(4) The claims assessor must, as soon as practicable, after an assessment issue the insurer and claimant with a certificate as to the assessment.

(5) The claims assessor is to attach a brief statement to the certificate, setting out the assessor’s reasons for the assessment.

(6) If the Principal Claims Assessor is satisfied that a certificate as to an assessment or a statement attached to the certificate contains an obvious error, the Principal Claims Assessor may issue, or approve of the claims assessor issuing, a replacement certificate or statement to correct the error.”

17 Counsel for the respondent, with little conviction, at least impliedly put the argument that the appellant had not satisfied the section. The apparent reluctance of counsel to embrace the proposition suggested by the judge regarding s 108(1) stemmed from what seems to have been an initial acceptance by both counsel that the certificate that had been issued was a certificate under s 94.

18 The evidence relating to the issuing of the certificate in question was as follows.

19 The respondent’s insurer applied for an assessment of the dispute as to whether a late claim could be made in accordance with s 73. This was a dispute of the kind referred to in s 96(1)(a). The form by which the application was made was headed “Application for Special Assessment”. Underneath the heading appeared the words “This form is an application for a special assessment by an assessor ... to determine specified procedural disputes under s 96 of the Motor Accidents Compensation Act”.

20 In response to the application, the assessor issued a certificate in the following terms:

“MOTOR ACCIDENTS AUTHORITY
CLAIMS ASSESSMENT AND RESOLUTION SERVICE
CERTIFICATE

As to the Assessment of a dispute in connection with a claim under Section 96(1)(a) of the Motor Accidents Compensation Act 1999 (“the Act”) and issued in accordance with section 94 of the Act (as it applies by section 96(3)) being

WHETHER A LATE CLAIM BY BE MADE IN ACCORDANCE WITH SECTION 73 OF THE ACT

This is to certify that the claim made by Jenny Hayek against Allianz Australia Insurance Ltd in respect of a motor vehicle accident on 10 March 2001 relating to CARS matter number 2004/15/3419JD was assessed by Assessor Peter Hunt.

The assessment was conducted on the papers.

The findings of this assessment are as follows:

* A late claim may not be made in accordance with section 73.

* No costs are assessed in favour of the claimant.

* Details of the assessment and reasons for this decision are attached to this Certificate.

Signed: (signature)
Name: Peter Hunt (CARS Assessor)
Date: 09 March 2005”

The judge’s findings

21 Naughton DCJ held that he was satisfied that the appellant did not have a full and satisfactory explanation for the delay in making the claim. As I have mentioned, the appellant led no evidence on this issue and the parties did not address it.

22 The judge rejected the appellant’s contention that, by reason of s 73(3)(a), the respondent had lost the right to challenge the appellant’s claim on the grounds of delay. He did so on two bases.

23 The first was his view that he was compelled by the terms of s 73(4) to dismiss the claim, irrespective of whether the respondent took the point or not.

24 The second was that the certificate that had been issued deprived the court of jurisdiction “to determine the point which both counsel wanted [him] to decide” (that is, whether the respondent, under s 73(3)(a), had lost the right to challenge the claim on the ground of delay). His Honour relied on s 96 in coming to this conclusion.

25 Section 96 provides:

“96 Special assessments of certain disputes in connection with claims

(1) This section applies to a dispute between a claimant and an insurer as to:

(a) whether a late claim may be made in accordance with section 73, or

(b) whether the claimant has a satisfactory explanation for non-compliance with section 70, or

(c) whether a claim may be rejected for non-compliance with section 74, or

(d) whether the insurer is entitled to delay the making of an offer of settlement under section 82 on the ground that any particulars about the claim are insufficient, or

(e) whether a payment is required to be made under section 83 (not being a medical dispute that may be referred to a medical assessor under Part 3.4).

(2) Any such dispute may be referred at any time to the Authority by the claimant or the insurer, or both, for assessment under this Part.

(3) Any such dispute is to be referred to a claims assessor, the dispute is to be assessed and a certificate is to be issued by the claims assessor in accordance with the relevant provisions of this Division relating to the assessment of claims. Division 3 applies to the assessment of the dispute in the same way as it applies to the assessment of a claim.

(4) An assessment of a dispute under this section is binding on the parties to the dispute to the extent that it relates to the duties of the parties with respect to the claim under Part 4.3.”

26 Naughton DCJ relied on s 96(4) in deciding that the assessor’s certificate deprived the court of jurisdiction to determine whether the respondent’s right to challenge the appellant’s claim on the ground of delay had been lost by virtue of s 73(3)(a). His Honour dealt with s 96(4) (and, in particular, that part of it which refers to “the duties of the parties with respect to the claim under Part 4.3”) in the following way:

“Part 4.2 (ss 70–79) of the Act is concerned with the making of claims and other preliminary matters. Part 4.3 (ss 80–87) is concerned with duties with respect to claims once they are accepted as valid. The effect of s 96(4) is to give the assessment of a dispute binding force as to whether or not the in futuro duties under Part 4.3 must or must not be fulfilled. If the assessment determines that the claim is valid then those duties must be fulfilled. If it does not then the claim is at an end. Part 4.2 is irrelevant to the operation or effect of s 96(4). Part 4.2 relates to matters which ante-date the operation of s 96(4). The operation of Part 4.2 has been exhausted by the time an assessment under s 96 is made. Therefore, there was no need to mention Part 4.2 in s 96(4). There was no purpose to be served by that. It would not be logical for the assessor’s decision under s 96 to be binding for ‘Part 4.3’ purposes if what had happened under ‘Part 4.2’ could be further questioned.

The assessor’s certificate precluding the plaintiff’s late claim from being further pursued remains binding upon the plaintiff and the defendant.”

27 The judge reasoned as follows:

“It was common ground that no certificate of exemption had been issued under s 92 of the Act. Both counsel assumed that the certificate ... was issued ‘under’ s 94 and therefore fell within s 108(1)(b) of the Act. The assumption was incorrect. As ... the statement of claim correctly asserted, the certificate was ‘under section s 96(1)(a) of the Act’ and was issued ‘in accordance with s 94 of the Act.’

...

To be issued ‘in accordance with’ s 94 is not the same as being issued ‘under’ s 94. The issue of the certificate was authorised, and provided for, in s 96(3) of the Act, not s 94. The only relevance of s 94 is that it provided the detail and machinery, in subsections (2), (4), (5) and (6), as to what information was to be considered for the purposes of the content of the certificate, what the assessor had to do with the certificate, and what, after the assessment was made, the assessor had to do to convey his reasons for the assessment, and what could be done in case of obvious error. Those requirements, in s 94 of the Act, for the purposes of a certificate issued under that provision (as to (a) liability, and (b) damages), are simply incorporated by reference as a matter of convenience in s 96 for detail and machinery purposes of certificates which are issued under s 96 (which certificates, as the heading puts it, relate to ‘Special assessments of certain disputes in connection with claims.’)”

28 His Honour held that the certificate was not issued under s 94 and was not a certificate contemplated by s 108(1)(b) of the Act. His Honour concluded that, as no certificate had been issued under either ss 92 or 94, the appellant’s statement of claim was filed in breach of s 108. He said:

“The proceeding is therefore a nullity and must be dismissed for that reason also.”

29 Thus, Naughton DCJ dismissed the summons on the following grounds:

(a) the respondent had not lost his right to challenge the appellant’s claim on the grounds of delay;
(b) the appellant did not have a full and satisfactory explanation for her delay in making the claim; and

(c) the appellant had filed her statement of claim in breach of s 108.

30 The appellant appeals against his Honour’s decisions.

The s 73(3)(a) issue: whether the respondent had lost the right to challenge the claim on the ground of delay

31 The facts relating to the appellant’s argument based on s 73(3)(a) are the following. The respondent received the appellant’s claim on 4 July 2003. On 10 July 2003, the appellant’s solicitors wrote to the respondent’s insurer stating that the appellant had withdrawn their instructions and that they no longer acted for her. They set out the appellant’s last known address. The appellant received the letter of 10 July 2003 on 14 July 2003. Despite being advised that the solicitors in question no longer acted for the appellant, the insurer wrote to the solicitors on 17 July 2003 requiring the appellant to provide a full and satisfactory explanation for the delay. On 29 July 2003, the insurer wrote to the appellant direct at the address supplied by her former solicitors and asked her to contact them. On 14 August 2003, the insurer wrote to the appellant stating that, if they did not hear from her by 22 August 2003, “it will be taken that the matter is withdrawn”. On 10 September 2004, the insurer wrote to the appellant’s new solicitors and requested the appellant provide a full and satisfactory explanation for the delay. The insurer did not, within two months of receiving the appellant’s late claim, reject the claim.

32 I have noted that the insurer sought, by its letter of 17 July 2003 to the appellant’s former solicitors, to ask the appellant, within the stipulated period of two months, to provide a full and satisfactory explanation for the delay in making the claim. The solicitors in question, however, were – to the knowledge of the insurer – by then not acting for the appellant and had no authority to receive the letter on her behalf. Therefore, the insurer could not be said, thereby, to have asked the appellant for a full and satisfactory explanation.

33 For a request for such an explanation to be made, the request must be communicated to the claimant or a person authorised on his or her behalf to receive such a request. It may be that s 222(1) of the Act (which deals with the way in which a notice or other document may be given or served under the Act on a person other than the Motor Accidents Authority or the Motor Accidents Council) applies to a request under s 73(3)(a). It is, however, unnecessary to resolve this question as there was no basis on which the insurer could have relied on s 222(1).

34 Mr Rewell SC, who appeared for the respondent, submitted that there was a conflict between s 73(3)(a) (which provides for the loss of the insurer’s right to challenge the claim on the ground of delay) and s 73(4) (which provides that a court “must” dismiss proceedings commenced in respect of a delayed claim if satisfied that the claimant does not have a full and satisfactory explanation for the delay in making the claim).

35 Any such conflict is resolved, however, if it is accepted that s 73(4) does not entitle a court of its own motion to dismiss the proceedings. On that basis, the court is entitled to make an order for dismissal under s 73(4) only if the insurer, or the person against whom the claim is made, is entitled to move – and moves – to dismiss the proceedings on that ground. If the insurer or that person has lost the right to challenge on the ground in question, neither can so move.

36 In effect, Mr Rewell’s argument raises the question whether a claimant’s failure to provide a full and satisfactory explanation for the delay in making the claim results in the proceedings being invalid, even if the insurer or the person against whom the claim is made has lost the right to challenge the claim on the ground of delay.

37 If the court were to be required by s 73(4) to dismiss the proceedings even if the point were not taken by the insurer or the person against whom the claim is made, s 73(3)(a) would have no work to do. This militates against Mr Rewell’s argument. But there are other factors that indicate that it cannot be upheld.

38 In Berowra Holdings Pty Ltd v Gordon [2006] HCA 32; (2006) 225 CLR 364, the High Court considered an argument that proceedings commenced in contravention of s 151C of the Workers Compensation Act 1987 (NSW) resulted in the invalidity of the proceedings for want of jurisdiction. A factor that strongly influenced the Court in concluding that the proceedings were not invalid was that the plaintiff’s right to claim was “sourced in common law” (at [23], 373). The same applies to the appellant’s cause of action in this case.

39 Gleeson CJ, Gummow, Hayne, Heydon and Crennan JJ said, in that case, at [14], 370 to [15], 371:

“Professor Jolowicz describes procedural law as creating choices or a sequence of choices in the sense that each procedural step taken by a litigant requires the other party or the court to take some action, so affecting the path which the proceedings take towards ultimate disposition. This is the case even where a procedural rule is expressed in mandatory form; if the party to whom it is addressed chooses to disregard it, the normal outcome is that a choice accrues to the other party either to do nothing or to seek an appropriate order from the court.

In the adversarial system of justice, choice rests primarily with the parties and it is generally the case that the court’s power of decision or order is exercised upon the application of a party.”

40 Their Honours said, further, at [33] to [36], 376:

“Section 151C should not be read as if the entitlement of a plaintiff to commence court proceedings after the passage of 6 months from the giving to the employer of notice of the injury was a pre-condition to the jurisdiction conferred upon the court to determine claims for work injury damages. The considerations adverted to earlier in these reasons all point against the employer’s construction of s 151C.

The better view is that the provision does not inevitably result in the invalidity of proceedings commenced in contravention of it, either for want of the court’s jurisdiction or because the court has no jurisdiction except to accede to a defendant’s application (whenever brought) to set aside the proceedings and to do so without regard to the procedural history and the relevant Rules of Court.

The construction advanced by counsel for the worker should be accepted. Section 151C does not extinguish rights or create new rights. Rather, it postpones the remedy for the common law right to initiate proceedings in a court of competent jurisdiction. The ‘right’ which s 151C does confer is conferred upon the defendant employer and must be raised in accordance with the procedural rules appurtenant to the particular court.

Proceedings commenced by a worker in contravention of s 151C engage the jurisdiction and procedural rules of the court in question. Such proceedings are vulnerable to an application by the defendant to strike out the initiating process or to move for summary dismissal, but they are not a “nullity”. Once a plaintiff has commenced proceedings, s 151C must be understood in connection with the procedural structure for the conduct of litigation in that court, not in isolation from it. This is not to subjugate the statute to the Rules, but to recognise that the subject matter with which the statute deals is “rights” in the context of actual or apprehended litigation, and to understand the function of the Rules of Court and procedural law in facilitating adjudication of disputed claims.”

See also Kirby J at [84], 391 to [101], 394, especially at [95], 393.

41 Section 73(4) of the Motor Accidents Compensation Act is, in substance, a provision akin to s 151C of the Workers Compensation Act. The remarks of their Honours concerning the construction of s 151C apply equally, in my view, to s 73(4).

42 On the reasoning in Berowra Holdings Pty Ltd v Gordon, the fact that a court is satisfied that a claimant does not have a full and satisfactory explanation for a delay in making the claim does not go to the jurisdiction of the court or invalidate proceedings that have been commenced.

43 It follows, in my opinion, that if – by reason of s 73(3)(a) – the insurer or the person against whom the claim is made has lost the right to challenge the claim on the ground of delay, s 73(4) cannot be invoked.

44 In this case, the respondent’s insurer had lost the right to challenge the appellant’s claim on the ground of delay. Accordingly, the judge was not entitled to dismiss the proceedings under s 73(4).

The argument that s 73(3)(a) did not apply by reason of the application of s 96

45 Section 96(4) provides that an assessment of a dispute under s 96 is binding on the parties to the extent only that the dispute relates “to the duties of the parties with respect to the claim under Part 4.3”.

46 Part 4.3 contains provisions relating to various duties of insurers, namely, to try to resolve claims expeditiously (s 80), with respect to admissions or denials of liability (s 81), to make offers of settlement (s 82), to make hospital, medical and other payments (s 83) and with respect to rehabilitation of injured persons (s 84). Section 85 (which is also in Pt 4.3) imposes a duty on claimants to co-operate with other parties. Section 86 provides for compliance by a claimant with various requests to undergo medical examinations and certain kinds of assessments. Section 87 concerns the duty of an owner and driver to co-operate with the insurer.

47 Thus, the only duties of the parties, provided for under Pt 4.3, that are relevant to disputes under s 96, are disputes involving insurers as provided by s 96(1)(d) and (e). Accordingly, an assessment of a dispute under s 96 is binding on the parties only to the extent that it relates to the insurer’s duties under ss 96(1)(d) and (e).

48 Importantly, assessments of disputes under s 96(1)(a) as to whether or not a late claim may be made in accordance with s 73 (as well as assessments of disputes under ss 96(1)(b) and (c)) are not binding on the parties.

49 Assessments under ss 96(1)(a), (b) and (c) are not the only assessments of disputes under the Act that have no binding effect. Section 95(1) provides that an assessment under Pt 4.4 of the issue of liability for a claim is not binding on any party to the assessment. Section 95(2) provides that an assessment under Pt 4.4 of the amount of damages for liability under a claim is binding on the insurer (subject to certain conditions) but not on the claimant.

50 It follows that the assessor’s certificate that was issued to the appellant did not preclude the appellant’s claim “from being further pursued” and that certificate was not, and did not remain, “binding upon the plaintiff and the defendant”, as his Honour held. Moreover, it is not correct that:

“If the assessment determines that the claim is valid then those duties must be fulfilled. If it does not then the claim is at an end.”

An assessment under s 96 does not determine the validity of a claim.

51 The fact that Pt 4.2 is irrelevant to the operation or effect of s 96(4) says nothing about the effect of s 73(3)(a) on the right to challenge a claim on the ground of delay. A non-binding assessment under s 96(1)(a) to the effect that a late claim may not be made in accordance with s 73(4) cannot affect the loss of the right to challenge the claim on the ground of delay by reason of the operation of s 73(3)(a).

52 The operation of Pt 4.2 was not “exhausted by the time an assessment under s 96 is made”. Once the right to challenge has been lost by reason of the provisions of s 73(3)(a), it is lost forever.

53 In my opinion, s 96(4) had no bearing on the loss of the respondent’s right to challenge the claim on the ground of delay and his Honour erred in finding that, by reason of s 96(4), the respondent had not lost that right.

The finding that the appellant did not have a full and satisfactory explanation for her delay in making the claim

54 There is a basic difficulty in his Honour’s dismissal of the proceedings on the ground that the appellant did not provide a full and satisfactory explanation for her delay in making the claim. That is the fact that the respondent did not argue that the proceedings should be dismissed for that reason. In any event, as I have held, the respondent lost the right to challenge the claim on the ground of delay. In my opinion, the finding that the appellant did not have a full and satisfactory explanation for her delay in making her claim was irrelevant and should not have been made.

The argument that the appellant withdrew her claim

55 Mr Rewell sought to make some point of the statement made by the insurer in its letter of 14 August 2003 that, if the appellant did not communicate with the insurer by 22 August 2003, “it will be taken that the matter is withdrawn”. The argument so advanced is without substance. The insurer was not entitled, unilaterally, to impose a condition of this kind. The failure of the appellant to respond by the date given did not mean that she had withdrawn her claim.

Did the appellant comply with s 108(1)?

56 Mr Semmler QC, who, together with Mr Goodridge, appeared for the appellant, drew attention to that part of s 96(3) that, in effect, requires a certificate relating to the assessment of a dispute under s 96 to be issued “in accordance with the relevant provisions of this Division relating to the assessment of claims”.

57 The reference to “this Division” in s 96(3) is a reference to Div 2 of Pt 4.4 of the Act. The relevant provisions of Div 2 are contained in s 94. Section 94(4) provides that, as soon as practicable, the assessor must, after an assessment, issue the insurer and the claimant with a certificate as to the assessment. Section 94(5) provides that the assessor is to attach a brief statement to the certificate, setting out the assessor’s reasons for the assessment. Section 94(6) provides for replacement certificates or statements to correct obvious errors. These provisions appear to be the “relevant provisions” contemplated by s 96(3). In other words, s 96(3) sets out the procedural machinery relating to the issuing of a s 96(3) certificate.

58 Mr Semmler submitted that, on this basis, the certificate was issued “under” s 94 and it was a certificate that duly complied with s 108(1)(b). He submitted: “[t]he certificate is issued under s 94 but it is an assessment under s 96”.

59 In construing s 108, due regard must be had to the nature of the pre-conditions required to be fulfilled before court proceedings in respect of a claim can be commenced. On a literal construction of the section, the pre-conditions are the issuing of a certificate under s 92 that the claim in question is exempt from assessment, or a certificate under s 94 that the claim has been assessed. These provisions reflect a statutory scheme whereby all claims, save those that are specifically held to be exempt from assessment under s 92, are to be assessed under s 94 before court proceedings can be commenced.

60 The notion that all claims must be assessed, save those that are expressly exempted, is consistent with the object of the Act set out in s 5(1)(b) which is “to encourage the early resolution of compensation claims”. I understand “early resolution” in this sense to mean resolution as soon as reasonably possible, and that, ordinarily, would mean prior to the commencement of court proceedings.

61 The construction advanced by the appellant is based on the proposition that a certificate concerning a dispute of the kind described in s 96(1) is to be regarded as a certificate issued in respect of a claim under s 94 because the procedural machinery relating to the issuing of a s 96 certificate is to be found in ss 94(4), (5) and (6). On this argument, the s 96 certificate is “a certificate in respect of the claim under s 94 (Assessment of claims)” within the meaning of s 108(1)(b).

62 If this argument were to be correct, a claimant would be entitled to commence court proceedings in respect of a claim without having to go through the assessment procedure set out in Div 2 of Pt 4.4. There is no reason in policy for such a construction.

63 Section 6(1) of the Act provides that “[I]n the interpretation of a provision of this Act ..., a construction that would promote the objects of this Act or the provision is to be preferred to a construction that would not promote those objects”. The appellant’s argument on this issue, in my view, is contrary to the objects and scheme of the legislation.

64 Mr Semmler submitted that, unless a certificate relating to the assessment of a dispute under s 96(1), and issued in accordance with the machinery provided by s 94, is regarded as a certificate that satisfies s 108(1)(b), a party dissatisfied with the findings of the assessor reflected in such a certificate would have no right to take court proceedings to challenge the certificate in question. I accept that, were that to be correct, it would not be a desirable result.

65 For the reasons I have explained, however, an assessment of a dispute as to a matter set out in ss 96(1)(a), (b) and (c) is not binding on the parties as such an assessment does not relate to the duties of the parties under Pt 4.3 with respect to the claim.

66 The matters that are the subject of ss 96(1)(d) and (e) are tangential to the principal issues that would arise between the parties and do not raise matters of substance. The fact that those matters might be binding on the parties does not give rise to concern.

67 Thus, in my view, a claimant, who has received an unfavourable certificate under s 96(1)(a), is entitled, thereafter, so long as the claim is not exempt from assessment, to require the claims assessor to make an assessment of the issue of liability (unless the insurer has accepted liability – see s 94(1)(a)) and the amount of damages for that liability, and to issue a certificate as to the assessment under s 96(4). The claimant, thereafter, would be entitled to commence court proceedings (despite the unfavourable s 96 certificate). That is because that certificate is not binding on the parties. On that basis, a main plank of Mr Semmler’s argument disappears.

68 The assessor was asked to resolve a s 96(1)(a) issue and not a s 94 issue. He did not attempt to resolve a s 94 issue. I would add that the appellant did not argue before the assessor that the insurer had lost its right to challenge the claim on the ground of delay. For this reason, the assessor did not deal with this issue either.

69 A s 94 certificate, by s 94(1), concerns an assessment of the issue of liability for the claim (unless the insurer has accepted liability) and the amount of damages for that liability. Such an assessment must specify an amount of damages. The certificate issued to the appellant made no mention of these matters. This was hardly surprising because the assessment arose from an application by the insurer on CARS Form 5A, Application for Special Assessment, a form that described itself as:

“...an application for a special assessment by an assessor from the Claims Assessment and Resolution Service (CARS) to determine specified procedural disputes under section 96 of the Motor Accidents Compensation Act.”

The findings of the assessment recorded in the certificate were that “[a] late claim may not be made in accordance with section 73” and “[n]o costs are assessed in favour of the claimant”.

70 The certificate issued to the appellant unequivocally concerned only a dispute between a claimant and insurer as to whether a late claim may be made in accordance with s 73. The dispute is of the kind described in s 96(1)(a). Thus, although stated to be “issued in accordance with s 94 of the Act”, the certificate is plainly not a s 94 certificate. It is a s 96 certificate. Although the certificate was issued in accordance with the machinery provisions of s 94, it is not a certificate in respect of a claim under s 94 (assessment of claims) as s 108(1)(b) requires. Accordingly, the result in Dollak v Schilpzand (Unreported, District Court of New South Wales, Delaney DCJ, 2 September 2005), to which we were referred, is correct; contrast Poles v Broadbent (Unreported, District Court of New South Wales, Garling DCJ, 17 December 2004).

71 In the circumstances, I agree with Naughton DCJ that, because no certificate had been issued under either ss 92 or 94 of the Act, “the [appellant’s] statement of claim was filed in breach of s 108 of the Act”.

72 In the circumstances, while it was not open to the judge to dismiss the appellant’s statement of claim pursuant to s 73(4) of the Act, his Honour correctly dismissed the statement of claim by reason of the fact that the appellant had not complied with s 108(1). Nothing had been passed between the parties capable of amounting to a waiver or estoppel that might have precluded the appellant from obtaining summary dismissal for non-compliance with s 94.

Procedural fairness

73 Mr Semmler raised an argument based on an absence of procedural fairness in the way in which the s 108 argument had been raised before Naughton DCJ. In my view, there is some force in these arguments, but whatever procedural unfairness then arose, the situation has been cured by reason of the fact that, on appeal, the appellant has had every opportunity to argue the point and has taken advantage of that opportunity.

Conclusion

74 I would dismiss the appeal with costs.

75 McCOLL JA: I agree with Ipp JA.

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LAST UPDATED: 19 June 2007