Member — Belinda Cassidy
Dated 14 December 2022
In this matter, Greg Walsh acted for James Hulse in respect of a decision made by NRMA Insurance denying liability on the basis that the Claimant had been charged with and had been convicted of a serious driving offence connected with the accident. The Claimant sought an internal review and on 13 September 2022, NRMA issued its internal review decision affirming the original decision to deny liability.
The Claimant referred the dispute to the Personal Injury Commission and the proceedings were allocated to Member, Belinda Cassidy.
On 11th September 2020, the Claimant was riding his motorcycle on Shaw Street in Kingsgrove. He came to the intersection at Berith Street, where the driver of a Toyota Sedan, turned right across his path and a collision occurred. The Claimant sustained injuries to his wrists, penis, testicles, hips and lower back. A claim was made on 23 December 2020 and NRMA accepted liability for the statutory benefits claim. On 2 September 2022, a further liability announcement was sent denying liability on the basis that the Claimant had been charged and convicted with a serious driving offence connected with the accident. The Claimant made a claim for statutory benefits under part 3 of the Motor Accidents Iniuries Act (2017), which comprised of weekly income support benefits in accordance with division 3.3 of the Act, and treatment and care benefits in accordance with division 3.4 of the Act.
There are a number of limits to the benefits of Part 3 such as ss 3.1 1 and 3.28, if a claimant is wholly or mostly at fault, no benefits are payable after the first 26 weeks following the accident. As the claimant was not wholly or mostly at fault, and received serious injuries, these sections will not be applicable to him and his claim.
Under s 3.37 of the Act, benefits are restricted if a person is charged with, or convicted, of a ‘serious driving offence’ that is ‘related to a motor accident,’ where no statutory benefits are payable.
Evidence relied upon
The police report referred to 7.72g of cannabis located in the Claimants’ jacket pockets. The Claimant had consumed ‘Wild Turkey (alcohol) and cannabis’, and an alcohol sample was taken. The blood alcohol result was negative. The insurers internal review decision referred to evidence that was not before the Assessor. The Claimants lawyer, Greg Walsh, did not challenge this evidence. The blood tested positive for amphetamine, methylamphetamine and cannabis. The Claimant’s police statement confirmed he had consumed a small quantity of illicit drugs the night before the accident.
Greg Walsh provided the Member with a copy of the Court result on 8 November 2022. The order of the Magistrate in the Court result document was ‘the offender… is found guilty without proceeding to conviction the matter is dismissed pursuant to s 10.1(1)(a) of the Crimes (Sentencing and Procedure) Act 1999‘. The Claimants first submissions asserted that the claimant was not convicted of a serious driving offence and no charges pending therefore, s 3.37(1) does not apply at all. According to the insurer, if a claimant is charged with a serious driving offence, then no statutory benefits are payable. If a claimant is convicted of a serious driving offence, there are no statutory benefits payable. The first submissions on behalf of the Claimant referred to the Court making a conditional release order under ss 9(1)(b) and 10(1)(b) of the CSP Act. However, under s 3.37(4), there are no proceedings pending because the charges have been dismissed ‘without proceeding to conviction’. In the context of the two decisions of ANN v AQQ, as referred to in the review proceedings of Abberton, the issue of causal relationship was not required to be determined and that there is no binding authority in the operation of s 3.37(1) whether a causal connection is required between the serious driving offence and the accident. It was further submitted on behalf of the Claimant by Greg Walsh that s 3.37(1) in context of ss 3.37(2), 3.38(2)(a) and 3.38(6) requires a causal connection between the serious driving offence and the motor accident before the Claimant is disentitled to statutory benefits.
Findings of Member Cassidy
Member Cassidy made a finding that the offence of possession of an illicit substance, cannabis, was not a serious driving offence because it is not a driving offence. The Claimant had a small quantity of an illegal drug for personal use, which is a charge that does not fall within any sections of the Road Transport Act 2013 identified in s 3.37(5).
The other charge concerned driving with an illicit substance. A serious driving offence includes a ‘major offence’ under the Road Transport Act 2013. Section 4(d) of that Act defines a ‘major offence’ as including events under ss 111 and 112. Section 111 relates to having a prescribed illicit drug present in a blood or urine test while driving a vehicle. Section 112 concerns the ‘use or attempted use of a vehicle under the influence of alcohol or any other drug’. The Claimant was charged under s 111(1)(a). There was no issue by Greg Walsh as to whether this was a ‘serious driving offence’. Member Cassidy referred to the insurers submissions that s 3.37(1) should be interpreted as referring to the historical factor of a charge made regard as to whether the charge is dropped or pursued, or whether the charge is proven or not. Member Cassidy went on to find that an actual conviction is required in the test proposed under s 3.37(1). In such circumstances, member Cassidy found that the Claimant is entitled to the continued payment of statutory benefits.
Claimant — Katie Roberts
Applicant — the insurer PRC Matter Number WM 10541033/22
Medical assessment conducted by Philip Truskett
Date of original certificate 13 September 2022 President’s delegate — Rachel Bittliff
Date of decision 13 December 2022
In this matter, Dr Katie Roberts suffered serious injuries to her left knee on 1 July 2015.
On 13 September 2022, Assessor Philip Truskett found her left knee bone graft, as recommended by Dr Berton, related to the injury caused by the accident and was reasonable and necessary considering the circumstances. The insurer, NRMA, sought to have Assessor Truskett’s assessment reviewed on the basis that it was incorrect in material respect. Greg Walsh represented the Claimant and did not agree that a review was warranted in the matter and addresses the issues raised by the applicant. Section 63 of the Motor Accidents Act 1988 provides that if the president is satisfied that there is a reasonable cause to suspect that the medical assessment was incorrect in material respect, the review application will be referred to a Review Panel. The insurer lodged an application under s 133A of the Personal Injury Commission Rules 2021.
Assessor Trsukett’s certificate was issued to the parties on 22 September 2022. In accordance with s 63(7) of the Act, the parties had 28 days from 22 September 2022 to make an application for a Panel Review of Assessor Truskett’s assessment. The final date to make the application was therefore, 20 October 2022. The insurer made its application on 21 October 2022.
The President’s delegate, Rachel Bittliff, determined that the loss of the right to make the application, does not work demonstrable and a substantial injustice. The delegate referred to Rae v Nominal Defendant  NSWSC 1612 which at , the court observed the medical assessor was not obligated under the Motor Accidents Compensation Act 1999 or Medical Assessment (Guidelines) to refer to every report before him. Rather, he was obligated to explain his path of reasoning in sufficient detail to determine whether he fell into error.
The delegate made a finding that Assessor Truskett was not obligated to discuss each document, but was required to consider them. As such the delegate was not satisfied that there is a reasonable cause to suspect that the medical assessment was incorrect and the material respect on the basis that Assessor Truskett did not have regard to relevant material at the time of the assessment.
In this matter, Greg Walsh acted on a pro bono basis for Simone Harris, the Second Respondent.
An application was made by the Applicants for judicial review of a decision of Legal Complaints Review Officer (‘LCRO’) asserting that there was a slip in a decision of the Law Society Standards Committee which should have been corrected by the LCRO.
The Second Respondent’s late father, Mr Harris, assisted his daughter in respect of a costs dispute with the Applicants. That dispute was the subject of a referral to a Costs Assessor in respect of twenty bills which totalled $52,958.50. The Assessor in his report included GST (the GST error). He recommended that the total fee was fair and reasonable for the work performed.
On 25 May 2021, the LCRO sent the Assessor’s report to the Applicants with a notice of hearing, setting the matter down on 7 July 2021. Submissions were provided. The Applicants did not notice the GST error in the Assessor’s report. The Applicants contended that this was an oversight on their behalf.
On 30 May 2021, the Second Respondent made submissions by way of a one page letter from her father, the late Mr Harris, accepting the findings of the Assessor and as a gesture of good faith, paying a sum of NZ$30,000 leaving a balance of NZ$22,000 in the event that the findings of the Assessor were adopted.
On 17 August 2021, the Committee sent the Applicants it notice of determination which again referred to the figure of $52,958.50 including disbursements and GST. It resolved to accept the recommendation of the Assessor and decided to take no further action on the complaint.
In the letter of 30 May 2021, Mr Harris had made submissions in respect of various issues including abuse of process and issue of estoppel.
On 15 September 2021, the Professional Standards officer informed the Applicants that the Committee had sought clarification on the Assessor who agreed that he had made an error. The Second Respondent’s concern was not forthcoming to the correction of that error.
On 24 September 2021, the Applicants applied to the LCRO for a review of the Committee’s decision. On 14 January 2022, the LCRO issued a decision striking out the application as an “abuse of process”. A number of errors were contended on behalf of the Applicants and in respect of each they were successful in the judgment of Gordon J. Mr Walsh prepared submissions on behalf of the Second Respondent and these were filed and served though time constraints did not permit Mr Walsh to personally appear in the matter as there was not sufficient time for an application under the relevant legislation to be dealt with by the New Zealand Law Society to be admitted in New Zealand for the purposes of representing the Second Respondent in these proceedings.
The Court made orders that the Committee could not rectify the error and re-issued its decision and the s.161 certificate had the Second Respondent considered to the correction of the error. The tests applied by the LCRO were found to be in error and the application for judicial review was granted and the Committee’s decision of 17 August 2021 and s.161 certificate were admitted so the alleged tax invoices total $52,958.50 excluding GST and disbursements. It is apparent that in New Zealand, law practices charge a flat 15% interest for outstanding costs and disbursements. There is no requirement for disclosure as to an estimate of total costs as provided in the legislation throughout Australia, such as the Legal Profession Uniform Law (NSW) (‘LPUL’).
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New Zealand Herald – The three-year battle: Lawyers win fight for extra 15 per cent after fees mistake.
In this matter Greg Walsh acted for AB in a very important case against the Law Society of NSW.
AB at the time of instructing Mr Walsh was a Solicitor with Firm 1. Her supervising partner was CD. That supervising partner on 3 March 2016 requested that she pop in and see her and when AB did so a piece of paper was handed to AB consisting firstly of CD’s signature and that of EF, CD’s former partner and the father of a child XY. AB witnessed CD’s signature as a person over the age of 18 years and not related to CD. She neither witnessed it as a Solicitor or in her capacity as a Solicitor. CD then asked her can you witness EF’s signature as well. She did so. AB said to CD “Has EF been in to sign this?” CD said “Yes I met him this morning”. AB had no reason not to believe what her supervising partner told her and signed the documents.
The next day AB overheard a phone call made by CD with a person likely to have been EF. As a result of the matters that she heard in the call CD said to AB that he had received a call from the Passport Office about the Passport Application. AB became suspicious at that point that EF may not have signed the application because CD had said to EF on the phone that she was taking XY to New York.
Davies J set out in his judgement at paras [9-14] further evidence in respect of the circumstances of the execution of the Passport Application and the results of investigation conducted as to what had occurred in such circumstances.
On 1 September 2016 AB contacted the Law Society and was referred to the Senior Solicitors Scheme and thus represented by Greg Walsh. Mr Walsh obtained instructions from AB and on 17 November 2016 sent a letter to the Law Society making full disclosure of the matters on behalf of AB.
Davies J thereafter sets out in some detail the extensive exchange of correspondence between Greg Walsh and the Law Society. Greg Walsh asserted that the Law Society had not afforded procedural fairness to his client and had not disclosed documentation consisting of two statutory declarations of CD to the Law Society. Mr Walsh on behalf of AB asserted that the full statutory declaration provided to the Law Society by CD be provided to him on behalf of AB. Justice Davies refers to Mr Walsh’s assertions in his judgement at paras [21-23]. On 6 July 2018 Ms Foord on behalf of the Law Society replied to Mr Walsh stating “You have been provided with everything that is relevant to the Society ‘s investigation of the complaint about AB. Those parts of CD ‘s statutory declaration that do not relate to your client or to the complaint about her will not be provided to you”.
At para  Justice Davies made this finding “In fact, the Law Society’s statement in that letter was untrue. Not only did the Law Society have the statutory declaration of CD from which it had quoted, but it had another statutory declaration, made at an earlier time, with answers to questions which had been asked of CD by the Law Society. That only became clear when Mr Walsh saw the report from the Bar Association mentioned earlier. That statutory declaration was not made available until a subpoena and a notice to produce was issued to the Law Society shortly before the present hearing. The other statutory declaration has never been made available to the plaintiff”.
Justice Davies set out in his judgement at [25-26] the result of the investigation made by The NSW Bar Association to grant AB a Practising Certificate as a Barrister. Mr Walsh on her behalf had made full disclosure about the complaint to the Law Society. The Bar Association had been abled by way of notice issued to the Law Society to obtain the relevant statutory declaration.
At  His Honour notes that on 12 September 2017 Mr Walsh wrote to the Law Society indicating that he had now learnt that there were in fact two Statutory Declarations. The First Statutory Declaration of CD contained significant admissions which are directly relevant to the allegations of Professional Misconduct against AB. At  the Law Society did not reply. Greg Walsh wrote again on 16 October 2017. In that letter he asserted “…[l]t is submitted that the decision to conceal from AB and myself as her solicitor the contents of the First Statutory Declaration of CD provided to the Law Society on 21 April 2017 is utterly contrary to the obligations of procedural fairness/natural justice. …”.
Ms Foord on behalf of the Law Society responded in a letter of 24 October 2017 again asserting that everything relevant had been provided to Mr Walsh on behalf of AB.
At  Justice Davies made this finding “It was again not true that all relevant material had been provided to AB. The Law Society had still not made available the statutory declaration from CD in its possession. The letter of 20 June 2017 which first disclosed the existence of a statutory declaration by CD did not mention the date of that statutory declaration. It could not, therefore, be inferred from the references in the letter of 24 October 2017 that what was being spoken of was a second statutory declaration by CD”.
On 1 February 2018 the Law Society resolved to refer that AB to the Administrative Tribunal
Occupational Division on the basis that she had falsely witnessed the signature of EF on a
Passport Application of about 3 March 2016. It provided reasons for its decision which were then set out by His Honour at .
Throughout the ordeal suffered by AB, Mr Walsh had obtained reports from her treating psychiatrist Dr David Sturrock. These set out the tragic circumstances in which she suffered from a major depressive illness: shock, depressed mood, nightmares, insomnia, anxiety, panic attacks, tearfulness, nausea, dry mouth and poor concentration and suicidal ideation. The response by the Law Society to such overwhelming evidence was simply to assert that it in no way was responsible having regard to its conduct in delaying the investigation and concealing evidence that was clearly relevant to the allegations made against AB. Tragically, AB attempted to take her own life on three separate occasions.
Justice Davies ultimately held for the reasons set out in his judgement that the Law Society had failed to accord procedural fairness to her and further had failed to provide adequate reasons in both the decisions of 14 December 2017 and I February 2018 meaning the decisions could not stand. His Honour further found that the reasons for the decision of I February 2018 disclosed jurisdictional error.
The Law Society then despite His Honour reserving his decision resolved to commence proceedings in the tribunal and did so on 1 August 2018. His Honour made an order in the nature of certiorari quashing the decisions of the Law Society made on 14 December 2017 and 1 February 2018.
This judgement of Justice Davies is a fundamental one in respect of the proper manner in which the Law Society of NSW ought to have investigated the allegations of Professional Misconduct against AB. She, somewhat remarkably, is still alive to continue assisting the community as a member of the NSW Bar Association.
The appellant made three complaints about his Honour’s Murray direction to the jury. First, that a Murray direction should have also been given in respect of count 1. Secondly, that the failure to give a direction in respect of count 1 may have confused the jury, in circumstances where the Crown case depended almost entirely upon the evidence of the complainant. Thirdly, that his Honour erred in informing the jury that the direction was required at law, and not because of any view about the evidence held by the trial judge. Finally, the appellant submitted that the jury should have been directed that the relationship evidence needed to be proven beyond reasonable doubt.
In this matter Greg Walsh acted for AW and others in respect of an application for costs arising from an action for malicious prosecution, wrongful arrest and false imprisonment. Bell J had entered verdicts in favour of the second and third plaintiffs in AW & Ors v State of New South Wales  NSWSC 543.
The application for costs was complicated having regard to the fact that the first plaintiff was unsuccessful in his claim based upon malicious prosecution.
The State of New South Wales submitted that the second and third plaintiffs ought not to obtain an order costs. It was contended that the proceedings fell within the jurisdictional limit of the District Court and that the plaintiffs had not established that there was sufficient reasons for commencing or continuing them in the Supreme Court. The Uniform Civil Procedure Rules 2005 did not contain a similar provision to the part 52A r33 of the Supreme Court Rules.
Bell J considered that this was an important discretionary matter to be taken into account and her Honour held that there was sufficient reason for commencing and continuing the claims in the Supreme Court. The allegations made in support of the claims were of a most serious character and each was entitled to seek vindication in the Supreme Court: Toomey v John Fairfax & Sons Ltd (1985) 1 NSWLR 291; Vignoli v Sydney Harbour Casino Pty Ltd  NSWSC 1227.
Bell J ultimately ordered that the first plaintiff was to pay 20% of the defendants costs of the proceedings not previously dealt with. The defendant was to pay the second and third plaintiffs their costs of the proceedings, not otherwise dealt with.
In this matter Greg Walsh represented Dr Rapson and his wife in respect of an action for a permanent stay of proceedings arising from the charging of Dr Rapson and his wife in respect of an incident in respect of a dressage horse, such charges having been initiated by a police officer and others alleging that they had ill-treated the dressage horse just prior to it having completed in a dressage event at Sutherland. Hamilton J found for the plaintiff and declared that the charges and the criminal proceedings were an abuse of process and stayed the proceedings.
Greg Walsh also represented plaintiffs in respect of obtaining orders for prohibition arising from a Magistrate’s refusal to disqualify himself for bias.
In this matter Greg Walsh represented the successful plaintiff’s in respect of a variation order made by Hamilton J permanently staying the proceedings so as to enable the proceedings in the Local Court to be withdrawn and dismissed. Such an application arose from a refusal on the part of the Magistrate at Sutherland to in fact dismiss the criminal charges in respect of the plaintiffs.
In this matter Greg Walsh represented Mr Pelechowski arising from his conviction and sentence for contempt by the New South Wales Court of Criminal Appeal. Mr Walsh appeared on a pro bono basis and obtained bail from Gummow J in the High Court of Australia. Mr Walsh also appeared in the successful appeal which raised important issues as to the power of the District Court Judge to make a Mareeba Order. The High Court held that that judge did not have the power to make the order that gave rise to the contempt proceedings in the Court of Appeal.
In this matter Greg Walsh represented the plaintiff in an application to the Supreme Court seeking relief arising from a decision by a Magistrate that he had no power to award costs arising from the dismissal of charges at a committal hearing. The Magistrate had ruled that he was functus offico at the time that the application for costs was made. Hidden J held that this was not the case and that the Magistrate had the power to award costs.