When a solicitor's oversight constitutes an "exceptional circumstance"

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Last updated: 02 Jul, 2021
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Originally Published by Andrew Gorman and Ilkay Antepuzumu on Monday, August 20, 2018 9:14:03 AM

An insurer's solicitor neglects to file a MAS Review Application in time. The Claimant opposes the request for an extension on the grounds that mere oversight does not constitute an "exceptional circumstance". Was the Proper Officer right in granting the extension?



Author: Ilkay Antepuzumu
Judgment Date: 6 August 2018
Citation: Alam v Allianz Australia Insurance Limited [2018]
Jurisdiction: Common Law1

Principles

  • In the context of extension of time applications by parties to a medical dispute, the question as to whether circumstances are exceptional1 is one for the Proper Officer who is to construe the Medical Assessment Guidelines "fairly and according to the substantial merits of the application with as little formality and technicality as practicable and minimising the cost to the parties".3

  • "Exceptional Circumstances" ought not to be construed too narrowly so as to shut out a party from being entitled to have its application considered by the Proper Officer as gate-keeper, under s 63(3)4.

  • The only "test" to be applied is whether the Proper Officer "is satisfied that exceptional circumstances exist that justify the lodgement of a late application having regard to the submissions of the parties". Clause 16.5.3 of the Guidelines5 requires the Proper Officer to make an evaluative judgment on this matter.

  • There is no general rule of common law or principal of natural justice that requires reasons to be given for administrative decisions6 and clause 16.5 of the Medical Assessment Guidelines cannot be construed as applying beyond its terms.

Background


The claimant was involved in a motor vehicle accident and assessed as having 24% whole person impairment by a medical assessor7.

The insurer's solicitor was instructed to lodge an application for review pursuant to s 63 of the Motor Accidents Compensation Act, 1999, however as a result of the insurer's solicitor's oversight, the application was not lodged in time. The insurer's solicitor applied to the Proper Officer for an extension of time. Under clause 16.5.3 of the Medical Assessment Guidelines (the Guidelines) the Proper Officer may extend time if satisfied that exceptional circumstances exist.

The Proper Officer forwarded the insurer's solicitor's letter to the claimant's solicitor by email. The claimant's solicitor was away and had not set up an "out of office" response, nor arranged for his email to be monitored in his absence. The email was not the claimant's preferred form of communication.

The Proper Officer took the lack of reply from the claimant's solicitor as raising no opposition to the extension of time. The Proper Officer wrote to the parties confirming that she had not received a response from the claimant's solicitor and that she was prepared to accept on this occasion that exceptional circumstances existed in that the insurer's solicitor's oversight should not preclude the insurer from lodging a review application.

The claimant's solicitor submitted that an oversight could not amount to "exceptional circumstances" and that an extension of time was not warranted. He also took issue with the Proper Officer communicating via email when he had indicated that it was not his preferred form of communication.

The Proper Officer responded that she had often given extensions to claimant's representatives who had missed the review application deadlines, so as to not disadvantage the claimant. The same consideration had been given to the insurer.

The claimant's solicitor raised a number of grounds of review, including:

  1. The Proper Officer erred in her finding of "exceptional circumstances".

  2. The Proper Officer failed to provide reasons as to the test applied in her determination of "exceptional circumstances".

  3. The Proper Officer failed to accord procedural fairness as the Proper Officer did not take into account the Claimant's submissions in the application for an extension of time.

  4. The Proper Officer took into account an irrelevant consideration in that the absence of a reply from the Claimant's solicitor was evidence of no opposition to the application for an extension of time.

Decision


The Court held the fact that that the claimant’s solicitor had not provided a response by the deadline was not an irrelevant consideration. The Proper Officer failed to accord procedural fairness to the claimant when she made her initial decision without hearing from the claimant’s solicitor however she corrected this error (in accordance with the Bhardwaj8 principle) when she wrote to the parties subsequently -after considering the claimant’s solicitor’s submissions. The Court found that the only "test" to be applied is whether the Proper Officer "is satisfied that exceptional circumstances exist that justify the lodgement of a late application having regard to the submissions of the parties". Clause 16.5.3 of the Guidelines requires the Proper Officer to make an evaluative judgment on this issue. That evaluative judgment had been made when the Proper Officer considered the Claimant's submissions. The requirement to focus on the "substantial merits of the application" indicates that "exceptional circumstances" ought not be construed too narrowly.

Justice Adamson went on to observe that there is no general rule of common law or principal of natural justice that requires reasons to be given for administrative decisions9 and that clause 16.5 of the Guidelines cannot be construed as applying beyond its terms. The Summons was dismissed and the Claimant was ordered to pay the insurer's costs of the proceedings.

Why this Case Note is important


This case demonstrates that the Proper Officer has a wide discretion when determining "exceptional circumstances" for the purpose of clause 16.5.3 of the Guidelines. Exceptional circumstances may exist by mere oversight, however that cannot be assumed.

In order to lawfully exercise the discretion, the Proper Officer must take the submissions of the parties into consideration. Whilst it did not arise in the present case, prejudice suffered by a party as a result of the opposing party's oversight may constitute a reason for the Proper Officer to decline an application for extension.

 



1 Adamson J
2 clause 16.5.3 of the Medical Assessment Guidelines
3 clause 1.14.2 of the Medical Assessment Guidelines
4 The Motor Accidents Compensation Act 1999 (NSW)
5 The Medical Assessment Guidelines.
6 Public Service Board of New South Wales v Osmond (1986) 159 CLR 656; [1987] HCA 7
7 section 59 of the Motor Accidents Compensation Act 1999 (NSW)
8 Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597; [2002] HCA 11
9 Public Service Board of New South Wales v Osmond (1986) 159 CLR 656; [1987] HCA 7