Supreme Court New South Wales Medium Neutral Citation: Allianz Australia Insurance Ltd v Gonzalez (No 2) [2013] NSWSC 544 Hearing dates: 5 December 2012 Decision date: 16 May 2013 Before: Adams J Decision: The first defendant is to pay the plaintiff's costs of and incidental to the summons including this costs determination. Catchwords: Costs - s 6 Suitors' Fund Act 1951 - concerning whether covers judicial proceedings in decisions of medical assessors or Medical Review Panels under Motor Accidents Compensation Act 1999. Legislation Cited: Civil Procedure Act 2005 Motor Accidents Compensation Act 1999 Suitors' Fund Act 1951. Uniform Civil Procedure Rules 2005 Cases Cited: Ackling v QBE Insurance (Australia) Limited and Anor [2009] NSWSC 881 Allianz Australia Insurance Ltd v Roger Ward & Ors [2010] NSWSC 720 Australian Postal Commission v Dao & Anor (No 2) (1986) 6 NSWLR 497 GIO General Limited v Smith & ors (No 2) [2011] NSWSC 998 QBE Insurance (Australia) Ltd v Henderson [2012] NSWSC 1607 Category: Costs Parties: Allianz Australia Insurance Ltd (plaintiff) Carmen Gonzalez (first defendant) Representation: Counsel: K P Rewell SC (plaintiff) P S Jones (first defendant) Solicitors: McCourts Solicitors (plaintiff) Colin Daley Quinn (first defendant) File Number(s): 2012/172585 Decision under appeal Date of Decision: 2012-03-12 00:00:00 Judgment 1In this matter I gave judgment for the plaintiff, Allianz Australia Insurance Ltd, granting relief in respect of a decision given against it in favour of the first defendant, Carmen Gonzalez, by the Review Panel established under the Motor Accidents Compensation Act 1999. Ms Gonzalez claimed to have suffered physical and psychiatric injuries as a result of a motor vehicle accident on 23 September 2008. I held that, contrary to the decisions of the Medical Assessor and the Medical Review Panel, the psychiatric injury was not caused by the accident. It followed that those decisions were affected by jurisdictional error and were therefore quashed. 2I directed the parties to make written submissions on the question of costs. In the result, Allianz submits that Ms Gonzalez should pay its costs of the proceedings, in accordance with the usual rule. It is submitted for Ms Gonzalez that the appropriate order is that each party should pay their own costs or, alternatively, that she should have a certificate under the Suitors' Fund Act 1951. 3Orders for costs are discretionary (s 98 Civil Procedure Act 2005) and ordinarily follow the event (Part 42 Uniform Civil Procedure Rules 2005). 4It was contended that Ms Gonzalez was nominated as a defendant in these proceedings, through "no fault of ... [her] own" and the errors of the Medical Assessor and the Medical Review Panel, in applying the wrong test of causation, did not result from any "input" of hers. It is submitted that the same order should be made as that of Johnson J in Ackling v QBE Insurance (Australia) Limited and Anor [2009] NSWSC 881, namely each party should pay their own costs. It is submitted that Ms Gonzalez was "but an innocent party caught up in a bureaucratic process, in which she in reality had little control and was blameless" and therefore should not be "punished" because a variation in the medical assessment was necessary. 5This submission is patently without merit. Ackling was a very different case to this, amongst other things because in that case the plaintiff failed on the issues which called for determination by the Court. Here the plaintiff succeeded on those issues. So far from Ms Gonzalez having been, as it were, a passive party, the fact is that she made a claim in respect of her psychiatric injury, persisted in it when Allianz sought a review and, when Allianz brought proceedings in this Court, contested its entitlement to relief. Nor can an order for costs against her be regarded in any sense as a punishment. 6I now turn to the question whether a certificate should be granted under the Suitors' Fund Act 1951. Such a certificate is limited to appeals from the decision of a "court", which is defined as including "such tribunals or other bodies as are prescribed". However, this should not be read to mean that only appeals from courts, strictly so called, and prescribed tribunals or bodies are covered. In Australian Postal Commission v Dao & Anor (No 2) (1986) 6 NSWLR 497 it was held that an appeal from the Equal Opportunity Tribunal was covered by the Act, although the Tribunal had not been prescribed. Kirby P said (at 513 - 514) - It would seem unlikely, given the history and purpose of the Suitors' Fund Act 1951, the increase since its enactment in the number and kind of statutory tribunals and the relationship established between the Tribunal and the Supreme Court, that appeals should lie on questions of law but not attract the protection of the Suitors' Fund Act because the Tribunal is not a court. It is true that specific statutory provision is not made, as it was in the case of the Workers' Compensation Commission, to deem the Tribunal to be a court. It is equally true that it would be desirable that a class of tribunals, intended to attract the beneficial provisions of the Suitors' Fund Act, should be expressly catalogued so that it is not necessary to determine whether they are in law a court or not. However that may be, there is no express provision. Instead, the Court must look to the nature of the body and in the context of the Suitors' Fund Act, seek to derive the legislative meaning. In the present case, the better view having regard to the nature and functions of the Tribunal is that it is a "court" for the Suitors' Fund Act purposes. ... McHugh J said (at 515 - 516) - The question has to be determined in the context and with regard to the purpose of the Act. The original purpose of the legislation was to protect the litigant against a successful appeal as the result of an error of law made by a court. An error of fact was not within the purview of the legislation. That is to say, the legislation was designed to protect the litigant against a judge's errors of law but not his or a jury's errors of fact. The introduction of s 6A and s 6B into the Act has extended the purposes of the Act. But provision of an indemnity for costs to a party who has lost an appeal for error of law still remains the chief purpose of the Act. Here we are concerned with a Tribunal presided over by a judge. The procedures of that Tribunal are in most respects identical with those of the ordinary courts of justice. An appeal on a question of law lies from the Tribunal's decision to the Supreme Court. The appeal in the present case was allowed because of a judge's error of law. Statutory interpretation may not be a creative art; but it has at least ceased to be a mechanical task. The Court's function is to give effect to the purpose of the Act. That function cannot be performed by isolating the word "court" and asking whether the constitution and procedures of the Tribunal come within the supposed essence of that term. English nouns do not have the fixed meaning of scientific symbols. Dictionaries and decisions on the word "court" in other contexts are guides not determinants. The meaning of a statutory word or phrase is best ascertained when considered in its context and with the author's purpose in using it in mind. In ordinary usage the word "court" has many meanings: they range from the group who form the retinue of a sovereign to an area used to play certain ball games. Legal usage also gives the word several meanings. Thus a "court" may refer to a body exercising judicial power as in the Constitution, Ch III, or to a body exercising non-judicial power such as the Coroners Court or to a court of petty sessions hearing committal proceedings. It may even refer to a body exercising judicial and arbitral powers such as the former Commonwealth Court of Conciliation and Arbitration or the Queensland Industrial Court. There is no a priori reason which prevents a body which determines rights and is presided over by a District Court judge from being a "court" even though it is not called a court and has lay members. Function and purpose, not labels, should be our guides. Remedial legislation should be given a beneficial construction. In accord with that philosophy, the Supreme Court has given a liberal construction to the word "appeal" in the Suitors' Fund Act. Thus an application for a writ of prohibition to correct an error of law in a court of petty sessions is an "appeal" for the purpose of the Act: Ex parte Parsons; Re Suitors' Fund Act (1952) 69 WN (NSW) 380. So is a case stated by a court of Quarter Sessions to the Court of Criminal Appeal on a question of law arising out of a conviction in a court of petty sessions (Ex parte Neville; Re Suitors' Fund Act 1951-1960 (1966) 85 WN (Pt 1) (NSW) 372) or a case stated by an arbitrator to the Supreme Court: Mir Bros Developments Pty Ltd v Atlantic Constructions Pty Ltd (1985) 1 NSWLR 491. Even a reference from the Prothonotary, exercising delegated jurisdiction, to a judge in chambers is an "appeal" for the purpose of the Suitors' Fund Act: Onions v Government Insurance Office of New South Wales (1956) 73 WN (NSW) 270. The word "court" should likewise be given a liberal and beneficial construction to accord with the purpose and policy of the Act. The correct approach is for the Court to ask itself whether, bearing in mind the general purpose of the Suitors' Fund Act, Parliament must be taken to have intended that the Tribunal should qualify as a court? I think that that question should be answered in the affirmative. Whether the Tribunal is a "court" for purposes other than the Act is beside the point. What matters for the purpose of the Suitors' Fund Act is that a body which determines rights and is presided over by a judge of the District Court has made an error of law which has been corrected on appeal to the Supreme Court of New South Wales. To grant a certificate, at the request of the respondents, is to promote the purpose of the Act. To hold that the Tribunal is a "court" for the purpose of the Act contradicts no express or implied provision of the Act. The Court should, therefore, declare that the respondents are entitled to a certificate under the Act. 7The question whether the Suitors' Fund Act applies to appeals from a Medical Assessor or Medical Review Panel has been considered, albeit briefly, in a number of judgments of this Court. In Ackling Johnson J said - [99] ... A certificate may be granted under s.6 Suitors' Fund Act 1951 with respect to an appeal against a decision of a court. The word "court" is defined in s.2(1) of that Act as including "such tribunals or other bodies as are prescribed". ... [A] Medical Assessor and Review Panel do not fall within this extended definition of "court" by prescription or otherwise. Although it has been said that the Suitors' Fund Act 1951 is beneficial legislation which should not be narrowly construed ... it does not seem to me that the Act is capable of extending to the present proceedings. Although it is not altogether clear, I would take it that his Honour did not consider that the bodies in question were not "courts" and, as they were not prescribed, the Act did not apply to appeals from their decisions. 8In Allianz Australia Insurance Ltd v Roger Ward & Ors [2010] NSWSC 720 Hidden J, referring to Australian Postal Commission v Dao (No 2) (supra) held, without further explanation, (at [82]) that a claims assessor exercising jurisdiction under the Motor Accidents Compensation Act was a "court" for the purposes of the Suitors' Fund Act. This conclusion was followed without discussion by Hoeben J (as his Honour then was) in GIO General Limited v Smith & ors (No 2) [2011] NSWSC 998. Neither of these decisions concerned the character of a medical assessor or the decision of a medical review panel. 9Lastly, in QBE Insurance (Australia) Ltd v Henderson [2012] NSWSC 1607 Rein J, referring to Allianz v Ward and GIO General Ltd v Smith, doubted that a medical assessor or panel could qualify as a court, even on a liberal interpretation of the kind adopted in Australian Postal Commission v Dao (No 2). However, his Honour did not need to determine the question as the issue before him concerned the status of a person exercising the power of referral for a further medical assessment under s 62 of the Motor Accidents Compensation Act which certainly was not that of a court. 10A medical assessor under the Motor Accidents Compensation Act has the task, pursuant to s 60 of determining a medical dispute. His or her decision is recorded in a "certificate" which "is conclusive evidence as to the matters certified in any court proceedings or in any assessment by a claims assessor in respect of the claim concerned": s 61(2). Section 63 provides for a review of the medical assessment by a panel of medical assessors, which can confirm the certificate or issue a new certificate. The status of a confirmed or new certificate is unchanged. 11Leaving aside the fact that the certificate determines medical questions - though also the issue of causation - and not rights, except derivatively, it is given by a doctor or, in the case of a review, by three doctors. In no sense do they act as judges. Nor are their certificates subject to review by way of appeal, however liberally that term might be interpreted. In my respectful view, it must follow that the present proceedings do not come within the provisions of s 6 of the Suitors' Fund Act. 12At all events, given the character of the errors which led to the orders in the primary proceedings and the course adopted by Ms Gonzalez with respect to her claims and in this Court, it would not be appropriate to grant a certificate. 13Accordingly, I order that Ms Gonzalez is to pay the costs of the proceedings in this Court to Allianz. I decline to grant a certificate under the Suitors' Fund Act 1951. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 11 November 2013