All It Takes Is a Charge: Insurance Australia Limited (trading as NRMA) James Hulse [2024] NSWSC 142

In Brief

• Under s 3.37 of the Motor Accident Injuries Act 2017 (MAIA), a claimant may be disentitled to statutory benefits for all time when they are charged at one point in time for a serious driving offence and the disentitlement is not terminated pursuant to s 3.37(2).
• Dismissal of the charge pursuant to s 10(1)(a) of the Crimes (Sentencing Procedure) Act 1999 (the CSP Act) does not terminate the disentitlement.

Facts

In Insurance Australia Ltd (trading as NRMA) v James Hulse [2024] NSWSC 142, the matter before the Supreme Court was the insurer’s application for judicial review of a PIC Member’s decision regarding the claimant’s entitlement to statutory benefits.

The claimant was seriously injured in a motor vehicle accident. The insurer admitted liability. However, the claimant was charged with an offence of having a prescribed illicit drug or drugs while driving a motor vehicle. The Local Court found the claimant guilty but granted his application pursuant to s 10(1)(a) of the CSP Act, thereby dismissing the charge instead of proceeding to conviction.

The Member interpreted s 3.37(2) as showing that the historical fact of a charge does not necessarily deprive an injured person of their statutory benefits, and s 3.37 (4) as showing the reference to charge to mean the existence of proceedings which deal with the charge, not the historical fact of the charge.

The Member, therefore, interpreted s 3.37(1) to mean that the historical fact of a charge alone does not determine entitlement to statutory benefits, instead, proceedings regarding the charge must be pending for the injured person to be disentitled to statutory benefits.

The Member also interpreted the effect of a s10(1)(a) order dismissing the charge to be “as if there had never been a charge at all other than the ‘historical fact’ of a charge being laid”.

The Member concluded that the Claimant continued to be entitled to statutory benefits because they had not been charged or convicted.

The insurer sought judicial review of the Member’s decision.

Supreme Court Reasons

Associate Justice Harrison construed s 3.37(1) to require that the person has been charged in the past, not that the person remains charged.

Her Honour rejected the claimant’s interpretation, for the following reasons:

1. The claimant’s interpretation of s 3.37(1) was that disentitlement terminates as soon as charges are no longer pending. This effect was said to be secured by the first limb of s 3.37(4).
2. This interpretation renders s 3.37(2), which sets out events that terminate disentitlement, otiose.
3. This interpretation of the first limb of s 3.37(4) is inconsistent with the second limb of 3.37(4), which states that disentitlement is triggered after the charges were first made.

Her Honour addressed the claimant’s other arguments as follows:

1. The claimant’s argument based on the concept of a spent conviction in the Criminal Records Act 1991 (NSW) is mis-directed. The provisions of the Criminal Records Act 1991 (NSW) have no relevance to the construction of the words “has been charged” in s 3.37(1) of the MAI Act. Rather, the ordinary English meaning of “convicted” in the context is to be adopted.
2. The words in the first limb of s 3.37(4) have work to do: they fix the time of the disentitlement.
3. The words “or convicted” in s 3.37 also have work to do: they provide an alternative point of time at which benefits cease to be payable in circumstances where the time at which a person is charged is not known.
4. If s 3.37(2) had been intended to include other events that lift the disentitlement, they would have been listed in the section.
5. The fact that disentitlement under s 3.37(1) may continue permanently is not illogical, although it may be considered harsh.

Associate Justice Harrison clarified that an order under s 10(1)(a) of the CSP Act does not remove the existence of the charge. The charge gave the Court the jurisdiction to make the order and is not “voided” by the order.

Her Honour found that the Member fell into error in holding that while the first defendant was charged with a serious driving offence, “there are no longer proceedings pending against him and therefore the first option in s 3.37(1) is not met”.

The Member’s decision was set aside, and the proceedings were remitted to the PIC.

Key Learnings

The decision in Insurance Australia Limited (trading as NRMA) James Hulse [2024] NSWSC 142 confirms that:

• • All that is required for disentitlement under s 3.37(1) of the MAI Act is that the injured person has been charged with a serious driving offence.
  • The disentitlement terminates only if the circumstances under s 3.37(2) of the MAI Act are met because the claimant is acquitted or the proceedings are discontinued.
  • An order under s 10(1)(a) of the CSP Act does not remove the existence of the charge and does not satisfy s 3.37(2) of the MAI Act.