CERTIFICATE OF DETERMINATION OF MEMBER  	
	
Citation:	Georges v AAI Limited t/as GIO [2024] NSWPIC 60	
		
Claimant:	John Georges	
		
insurer:	GIO	
		
Member:	David Ford	
		
DATE OF DECISION:	14 February 2024	
		
CATCHWORDS:	MOTOR ACCIDENTS - Motor Accidents Compensation Act 1999; recommendation; application for damages assessment lodged with the Commission in 2022; insurer previously wholly admitted liability in 2017; insurer seeks a discretionary exemption under section 92(1)(b) on the grounds the claimant has made multiple misleading statements with respect to injuries, loss and damage sustained as result of the accident; insurer requires material witnesses who cannot be compelled to give oral evidence; highly complex issues in the facts and assessment of damages; whether matter should be exempted on discretionary grounds; rule 99(3)(a) of the Personal Injury Commission Rules 2021; Rifai v QBE Insurance (Australia) Limited; Held – matter be exempted; recommendation subsequently approved by the Division Head, as the President’s delegate. 	

RECOMMENDATION – CLAIM NOT SUITABLE FOR ASSESSMENT
BACKGROUND

1.	The claimant was involved in a motor vehicle accident on 22 March 2017 and lodged an application for damages assessment with the Personal Injury Commission (the Commission ) on 18 November 2022. Previously the insurer had wholly admitted liability by notice dated 12 July 2017.
2.	The insurer has now referred the claim to the Commission seeking an exemption from assessment and submits the claim is unsuitable and should be exempted under section 92 (1) (b) of the Motor Accident Compensation Act 1999 on the following grounds
a.	The insurer alleges the claimant has made multiple misleading statements with respect to injuries, loss and damage sustained as a result of the accident. 
b.	The insurer must file a subpoena to produce following ASIC’s refusal to comply with the Direction to Produce under section 49 of the Personal Injury Commission Act 2020
c.	The insurer requires material witnesses who cannot be compelled to give oral evidence under the Personal Injury Commission Act 2020 and Personal Injury Commission Rules 2021 and
d.	The above grounds established highly complex issues in the facts and assessment of damages which is unsuitable for the Commission.
3.	The insurer further submits the following, commencing at paragraph 39 of their submissions dated 13 December 2023
39. The insurer is entitled to further forensic inquiries to verify the allegation that injuries caused by the accident resulted in Bondi Beverages failure. It is critical for the insurer to fully investigate the circumstances in which the shareholder dispute arose on 8 May 2017 and the subsequent Supreme Court proceedings.
40. This can only be achieved through subpoenas to compel the attendance of the former secretary and former directors. The oral evidence available from these individuals will have direct bearing on the economic loss claim. In applications for exemption based on false or misleading statements, the relevant inquiry is whether the allegations are suitable for PIC assessment. The member is not to consider the strength of the allegation itself (IAG Ltd t/as NRMA Insurance v Abiad (2018) NSWSC 1422).
41. In Abiad, the Supreme Court's reasoning a paragraph 77 relevantly provided
“It is not the role of the claims assessor to second guess an insurer’s allegation the claimant has made a false or misleading claim. Section 92 (1) (b) and clause 14.16.11 implicitly recognises the fact that in an appropriate case an insurer’s claim 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.
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.
42. In summary, the insurer submits the claimant made misleading statements by failing to disclose the reasons and evidence related to Bondi Beverages failure. The contents of the misleading statements are directly relevant to the quantification of economic loss sustained as a result of the accident.
4.	I note the submission made by the insurer regarding complexity of the matter commencing at paragraph 77 of their submissions.
“There are multiple elements of this claim that render it unusually complex and unsuitable for PIC. The insurer refers to the following factors.
a.	The crux of the claim for economic loss rests on the claimant's account of the shareholders meeting on 8 May 2017 but the insurer cannot properly respond to this unverified allegation as the claimant expressly refused and/ or withheld evidence.
b.	The Supreme Court proceedings that involve Bondi Beverages addressed the issue of the company’s failure, in which over 30 affidavits were served between the parties.
c.	There is evidence of contradictions between the claimant’s affidavit evidence filed in the Supreme Court and his evidence in this claim.
d.	The economic loss claim does not involve a standard loss of opportunity claim for the failure Bondi Beverages but instead requires an assessment of the claim with regard to all the facts and evidence that emerged on the Supreme Court proceedings.
e.	 The quantification of financial loss must apportion between the accident and any other factors that contributed to the failure of Bondi Beverages (the conduct of Mr Damcevski being one factor the claimant attested to the Supreme Court proceedings)
f.	The insurer has alleged misleading statements will be made in the claimant’s particulars with respect to economic loss.
g.	The insurer has further alleged misleading statements have been made in relation to the claimant’s pre accident drug use in the permanent impairment dispute.
h.	There are demonstrable and significant credibility issues associated with the claimant as a witness which warrants cross examination on the alleged misleading statements.
i.	The claimant's credibility is an issue as to whether he previously disclosed drug use to Mr Svigir and will require oral evidence from Mr Svigir
j.	The credibility issues are further complicated by allegations of cognitive impairment involving memory loss which will require oral evidence from medical experts.
5.	I also note the further, following paragraphs.
78. The insurer has identified 4 individuals who are material witnesses for the above factual and quantum complexities treating psychologist Vlado Svigir the former of Bondi Beverages secretary and two former Bondi Beverage directors
79. However, the statutory regime will prevent the insurer from relying on oral evidence if the matter is heard as PIC assessment This restriction will obstruct the insurer’s ability to fully defend the allegations made.
80. Section 51(2) of the Personal Injury Commission Act 2020 prohibits a summons to attend from being issued to a third party for claims under the Motor Accident Division of PIC
81. Rule 34 the PIC rules provides an alternative avenue to submit oral evidence to the PIC. however, the prequisite is that the witness must be willing to at least attend PIC to provide oral evidence.
82. The insurer cannot rely on rule 34 to admit oral evidence to the PIC, all four witnesses have either not cooperated or expressly refused to be a witness
a. During a telephone conversation on 30 June 2023 (A19) Bobi Damcevski repeatedly told the insurer’s legal representative that he did not wish to be a witness in PIC proceedings.
b. Vlado Svigir refused to provide a treating report to the insurer’s legal representative without an executed authority from the claimant(A17). An authority was requested on 14 July 2023, but the claimant has failed to respond.
c. Antonius Bassil has also disregarded the insurer’s written correspondence on 12 July 2023 (A21)   This was forwarded after telephone conversation in which Mr Bassil asked for a written request for information (A20). There was no response to this request.
d. Elvis Damcevski refused to cooperate with the insurer’s legal representative. A file note dated 12 July 2023 (A22) observed that he terminated a telephone call from the insurer when it sought information with respect to his involvement in Bondi Beverages
83. The complexity of the claim is underscored by the need for evidence under oath, but these witnesses must be compelled by a subpoena to attend
84. The only avenue for the insurer is to have access to oral evidence is through discretionary exemption, to enable access to subpoenas to attend
85. The insurer expects it will also require oral evidence from an array of other entities involved in the Supreme Court proceedings and liquidation of Bondi Beverages. This will include relevant individuals from Archangel Wealth. Worrells and ASIC 
87. The complex nuances in the alleged facts, damages claimed, and the need for subpoenas to attend has clearly established criteria in Rule 99 (3) (a ) of the Personal Injury  Commission Rules. Based on this ground a discretionary exemption ought to be granted due to the complexity of the matter
6. In response the solicitor for the claimant relied upon submissions as set out in their Reply dated 19 January 2024 and in particular, I refer to the submissions under the heading “Complexity of the Matter “at paragraph 6.1
“The claimant refers to the insurer submissions at paragraph 78, 83-84 and notes that the four individuals are not required to provide oral evidence. Mr Svigir’s are not necessary because the allegations of cocaine use were addressed by Doctor Canaris psychiatrist, BD,ED,and TB’s evidence  are not also necessary as the insurer’s legal representatives are in possession of Mitry’ Lawyers file which includes sworn affidavits provided by the shareholders in the Company .The claimant  is not sure as to what is precisely restricting the insurer’s  ability to fully defend against his claim
7.	However, the submissions made by the solicitor for the claimant endeavour to persuade me to be satisfied this claim is capable of assessment in the Commission. This is the incorrect test. I refer to the decision of IAG limited trading as NRMA v Khaled (2019) NSWSC 320 regarding the proper interpretation of section 92(1) (b) of the Motor Accidents Compensation Act.
At paragraph 28 
“There is an obvious, and indeed material, difference between whether or not a matter can be dealt with in the CARS process (in the sense of being capable of being dealt with in that way) and whether it is not suitable to be dealt with in that way. In that sense, capability is not the same as suitability. The terms of section 92(1) (b) required the Assessor to consider and focus upon the latter question”.
Harrison AsJ found that the Claims Assessor applied the wrong twit test. The question that the Claims Assessor was required to ask herself was “whether she was satisfied that this claim was capable of assessment in CARS” ...
Relevant Legislation
8.	. Sub-section 7.34 (1)(a) provides that a claim is exempt from assessment under this Division the claim is of a kind specified in the regulations as a claim that is exempt from assessment under this Division. 

9.	Sub-section 7.34 (1)(b) provides that a claim is exempt from assessment under this Division if a preliminary assessment of the claim has determined (with the approval of the President) that the claim is not suitable for assessment under this Division.

10.	Rule 99 of the PIC Rules list the grounds for considering whether claim is not suitable for assessment as follows: 
99   Consideration of discretionary exemption from claims assessment
(1)  A claimant or insurer may apply for an exemption from assessment under section 92(1)(b) of the MAC Act or section 7.34(1)(b) of the MAI Act by lodging an application.
(2)  In determining whether a claim is not suitable for assessment for the purposes of section 92(1)(b) of the MAC Act or section 7.34(1)(b) of the MAI Act, the Commission must consider the objects of the PIC Act and the circumstances of the claim.
(3)  Without limiting the matters that may be considered, the Commission may consider the following—

(a)  whether the claim involves complex legal or factual issues, or complex issues in the assessment of the amount of the claim,
(b)  whether the claim involves issues of liability, including contributory negligence, fault or causation,
(c)  whether a claimant or witness, considered by the Commission to be a material witness, resides outside the State,
(d)  whether a claimant or insurer seeks to proceed against one or more non-CTP parties,
(e)  whether the insurer alleges that a person has made a false or misleading statement in a material particular in relation to the injuries, loss or damage sustained by the claimant in the accident giving rise to the claim.
11.	In this case a number of considerations listed in clause 99 are relevant.

12.	The first relevant consideration is under sub-clause 99(2) of the PIC Rules. When determining whether a claim is not suitable for assessment, the Commission must consider the objects of the PIC Act and the circumstances of the claim. Section 3 of the PIC Act which refers to the Objects of the MAI Act, enjoins the Commission to be:  accessible, professional and responsive to the needs of all of its users; encourages early dispute resolution; and resolves the real issues in proceedings justly, quickly, cost effectively and with as little formality as possible.

13.	In making my findings, I am also mindful of other relevant consideration listed in rule 99 including that the claim potentially involves:  

•	complex legal or factual issues; and 
•	whether a claimant or witness, considered by the Commission to be a material witness, resides outside the State. 

15. I recommend that this claim is exempt from assessment and is not suitable for assessment under the Division 7.6.
Determination 
16.	In making my preliminary assessment recommending that the matter be exempted from assessment, I have had regard to the following:

•	the objects of the PIC Act set out in section 3 which include the quick, cost effective, just, and informal resolution of disputes.

17.	I accept the submission made by the solicitor for the insurer that the circumstances contemplated under rules 99 (3) (a) of the Personal Injury Commission Rules 2021 are relevant to this dispute and indicate the factual issues and alleged damages are unsuitable for assessment in the Commission.

18.	Having made a preliminary assessment of the claim, I determined for the reasons set out above, that this claim is not suitable for assessment under section 92(1)(b) of the Motor Accidents Compensation Act 1999  and I recommend to the President that it be exempt from assessment.

19.	In accordance with 92(1)(b) of the Motor Accidents Compensation Act 1999, the Division Head (Motor Accident Division) as Delegate of the President, on 12 March 2024, approved Member David Ford’s recommendation that the claim is not suitable for assessment.