FEDERAL COURT OF AUSTRALIA

 

Australian Automotive Repairers' Association (Political Action Committee) Inc v Insurance Australia Limited (formerly NRMA Insurance Limited)

(No 6)[2004] FCA 700

TRADE PRACTICES – exclusive dealing – Trade Practices Act 1974 (Cth) s 47(7) – motor vehicle insurance policy gives insurer right to decide to ‘repair’ damaged vehicle or to pay cost of repairing it to insured – insurer establishes ‘Preferred Smash Repairer’ (‘PSR’) scheme – relationship between PSR and insurer (such as ‘self-assessment’) is such that, generally speaking (but not always), insurer assesses insured’s claim and authorises repairs more expeditiously in case of PSR than in case of any other repairer – insureds make claim over telephone to insurer’s ‘Teleclaims Centre’ – Teleclaims Consultants recommend PSRs as against other repairers, telling insureds that assessment of claim and authorisation of repairs will be achieved sooner if insured agrees that PSR effect the repairs – if not, insurer will pay cost of repairs to insured, and it will be a matter for insured to engage a repairer to repair vehicle -– whether insurer is refusing to provide a service to insured for reason that insured does not agree to acquire services (repairs) from PSR – whether insured acquires services from PSR - whether timely assessment of claims and timely authorisation to proceed with repairs are ‘services’ – whether there is a refusal to supply – whether any refusal of supply by insurer is ‘for the reason that’ insured will not agree to acquire services (repairs) from PSR.

WORDS AND PHRASES – ‘acquire’ – ‘accept’ - ‘for the reason that’ – ‘services’ – ‘refuses’

Trade Practices Act 1974 (Cth) ss  4(1), 4(2)(c), 47(7)

Castlemaine Tooheys v Williams & Hodgson Transport Pty Ltd (1986) 162 CLR 395 applied

Paul Dainty Corporation Pty Ltd v National Tennis Centre Trust (1990) 94 ALR 225 followed

Australian Competition & Consumer Commission v IMB Group Pty Ltd (in liq) [2002] FCA 402 followed

Visy Paper Pty Ltd v Australian Competition & Consumer Commission [2003] HCA 59 referred to

Merchants’ Association of New Zealand Inc v The King (1913) 32 NZLR 1233 followed

Mikasa (NSW) Pty Ltd v Festival Stores (1972) 127 CLR 617 followed

AUSTRALIAN AUTOMOTIVE REPAIRERS' ASSOCIATION (POLITICAL ACTION COMMITTEE) INC v INSURANCE AUSTRALIA LIMITED (FORMERLY NRMA INSURANCE LIMITED)

 

N953 of 2002

LINDGREN J

2 JUNE 2004

SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 953 OF 2002

 

BETWEEN:	AUSTRALIAN AUTOMOTIVE REPAIRERS' ASSOCIATION (POLITICAL ACTION COMMITTEE) INC APPLICANT
AND:	INSURANCE AUSTRALIA LIMITED (FORMERLY NRMA INSURANCE LIMITED) (ACN 000 016 722) RESPONDENT
JUDGE:	LINDGREN J
DATE OF ORDER:	2 JUNE 2004
WHERE MADE:	SYDNEY

 

 

THE COURT ORDERS THAT:

 

1.                  The motion brought by the applicant by notice of motion filed on 3 February 2004 be dismissed.

2.                  The application be dismissed.

3.                  The applicant pay the respondent’s costs of the proceeding, including the costs of the motion.

 

 

 

 

 

 

 

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 953 OF 2002

 

BETWEEN:	AUSTRALIAN AUTOMOTIVE REPAIRERS' ASSOCIATION (POLITICAL ACTION COMMITTEE) INC APPLICANT
AND:	INSURANCE AUSTRALIA LIMITED (FORMERLY NRMA INSURANCE LIMITED) (ACN 000 016 722) RESPONDENT

 

JUDGE:	LINDGREN J
DATE:	2 JUNE 2004
PLACE:	SYDNEY

REASONS FOR JUDGMENT (No 6)

(Final Hearing)

introduction

1                     The applicant, Australian Automotive Repairers’ Association (Political Action Committee) Inc (‘AARA’) is an incorporated association of motor vehicle repairers.  The respondent, Insurance Australia Limited (‘IAL’), is an insurer, better known by its former name, ‘NRMA Insurance Limited’.  I will call the respondent ‘NRMA Insurance’, notwithstanding its recent change of name. 

2                     AARA alleges that NRMA Insurance has been engaging in the practice of exclusive dealing in contravention of s 47(1) of the Trade Practices Act 1974 (Cth) (‘the Act’), and threatens to continue, unless restrained, to engage in that practice.  AARA’s complaint is in respect of NRMA Insurance’s ‘Preferred Smash Repairer’ (‘PSR’) scheme. 

3                     The particular form of exclusive dealing in which AARA alleges that NRMA Insurance engages, is that described in s 47(7) of the Act, which is as follows:

‘(7)      A corporation … engages in the practice of exclusive dealing if the corporation refuses:

(a)               to supply goods or services to a person;

(b)               to supply goods or services at a particular price to a person; or

(c)               to give or allow a discount, allowance, rebate or credit in relation to the supply of goods or services to a person;

for the reason that the person or, if the person is a body corporate, a body corporate related to that body corporate has not acquired, or has not agreed to acquire, goods or services of a particular kind or description directly or indirectly from another person.’

AARA alleges that NRMA Insurance refuses to supply certain services to its insureds who claim against it under their motor vehicle insurance policies in respect of damage to their motor vehicles requiring repair, for the reason that those insureds have not agreed to acquire services (repairs) from a repairer who has been classified by NRMA Insurance as a PSR.

4                     AARA relies on the definition of ‘acquire’ in s 4(1) of the Act to include, in relation to services, ‘accept’. AARA also relies on the extended concept of ‘refusing to do an act’ which is provided for in s 4(2)(c), which provides that in the Act:

‘a reference to refusing to do an act includes a reference to:

(i)                 Refraining (otherwise than inadvertently) from doing the act; or

(ii)              making it known that that act will not be done’. (my emphasis)

5                     According to AARA’s second further amended Statement of Claim filed on 5 February 2004 (‘the Pleading’) it is the following services which, allegedly, NRMA Insurance refuses to supply to its insureds:

(i)                 timely assessment of the insured’s claim;

(ii)               timely authorisation to proceed with repairs;

(iii)             the opportunity to secure the benefit of an early release of the insured’s motor vehicle as a result of (i) or (ii) above;

(iv)             authorisation to proceed with repairs;

(v)               payment of towing expenses;

(vi)             payment of the expense of towing to the premises of a repairer, who is not a PSR,  who is to effect the repairs.

6                     During the hearing, AARA made it plain that it wished to allege that NRMA Insurance refused to supply these services even if it in fact did so.  All that mattered, according to AARA, in view of the extended definition of ‘refuse’ referred to at [4] above, was that NRMA Insurance made it known to its insureds that it would not supply a service if the insured did not agree to acquire the repairs from a PSR.

7                     There is no substantial dispute as to the facts: the main issue in the case is whether the PSR scheme falls within s 47(7) of the Act. 

Background Facts

Schemes

8                     The PSR scheme is described in a lengthy and detailed affidavit of Paul Edward Pemberton and in documents which were tendered in evidence.  Mr Pemberton is employed by Insurance Manufacturers of Australia Pty Ltd (‘IMA’).  IMA is a joint venture company owned by NRMA Insurance and RACV Insurance Limited.  Mr Pemberton is the manager of the Claims and Assessing segment of IMA.

9                     Since at least early 2000, NRMA Insurance has engaged IMA to provide, among other things, claims management services with respect to claims lodged under motor vehicle policies issued by NRMA Insurance.  Under the engagement, IMA provides to it a ‘teleclaims’ service, assesses claims, and manages the claim settlement process. 

10                  Most, if not all, of the features of the PSR scheme as described by Mr Pemberton were not the subject of challenge.  Unless I indicate otherwise, I accept, and make findings in accordance with, Mr Pemberton’s description of the PSR scheme in his affidavit and oral testimony referred to below.  It is convenient to note here that it seemed to me that all witnesses attempted to give their best recollection of events, and, unless a different intention appears, I accept their evidence as summarised below.

11                  Prior to 1998, NRMA Insurance maintained a list of ‘Known Repairers’.  These were repairers NRMA Insurance authorised to undertake for it repairs of its insureds’ vehicles.  The Known Repairers invoiced NRMA Insurance and were paid by NRMA Insurance.  If an insured elected to have the vehicle repaired by a repairer other than a Known Repairer, NRMA Insurance would pay the insured a sum it assessed to be the reasonable cost of the repairs.  In those circumstances, it was a matter for the insured to engage and pay a repairer, and any dispute over the repairs was one between the insured and that repairer.

12                  In 1998 NRMA Insurance developed and trialled a new scheme known as ‘Competitive Partnering’, which was introduced throughout New South Wales in 1999.  NRMA Insurance agreed to appoint selected Known Repairers as ‘Partnered Repairers’ (sometimes called ‘Competitive Partners’) and to refer work to them.  In return, these Partnered Repairers were required by NRMA Insurance to maintain their facilities and standards of service at an agreed level and to ensure that quotes which they provided to NRMA Insurance were ‘competitive’. 

13                  The Competitive Partnering scheme was reviewed in 2000.  As a result, the PSR scheme was developed.  NRMA Insurance was to appoint from the pool of Partnered Repairers a smaller group – the PSRs.

14                  Following an assessment of repairers in the period October 2000 to June 2001, NRMA Insurance identified those Partnered Repairers it regarded as appropriate for PSR status by reference to various criteria, including cost, quality of repairs, relationship with NRMA Insurance, ‘strategic need’ and ‘potential’.  That status was conferred upon the making of a National Preferred Smash Repairer Agreement (‘PSR Agreement’) between NRMA Insurance and the PSR.  The first of the PSR Agreements was made in late 2000.  Accordingly, at that time (late 2000) there were PSRs, other Partnered Repairers remaining from the Competitive Partnering scheme, other Known Repairers remaining from the Known Repairers scheme, and, of course, repairers who had not been part of any scheme.

15                  In November 2001 NRMA Insurance proposed to create a new category of repairer known as ‘Associate Smash Repairers’ (‘ASRs’).  The remaining Partnered Repairers and Known Repairers were invited to become ASRs.  To accept the offer, a repairer was required to enter into an ‘Associate Smash Repairer Service Level Agreement’ (‘ASR Agreement’).  In late January 2002, NRMA Insurance forwarded copies of that form of agreement to the remaining Partnered Repairers and Known Repairers.  The result achieved was that from 1 March 2002 there were only two categories of repairer ‘recognised’ by NRMA Insurance – PSRs and ASRs.

16                  Smash repairers with whom NRMA Insurance has no established business relationship, that is to say, who have not entered into either a PSR Agreement or an ASR Agreement, are referred to by NRMA Insurance as ‘Non-Accredited Repairers’ (‘NARs’).  Prior to about June 2003 they were referred to as ‘Unauthorised Repairers’.

17                  NRMA Insurance provides its insureds with a standard form of written ‘Lifetime Guarantee’ in respect of ‘the quality of workmanship and repairs’ of PSRs and ASRs.  Upon completion of the repairs, the PSR or ASR signs the form of Lifetime Guarantee on behalf of NRMA Insurance and gives the signed form to the insured.  Where NRMA Insurance has occasion to honour the Lifetime Guarantee, it usually seeks to recover the cost of doing so from the PSR or ASR, but sometimes fails in the attempt, as where, for example, the PSR or ASR has ceased to carry on business.

18                  NRMA Insurance does not normally engage NARs to effect repairs.  If an insured decides to have an NAR effect the repairs, NRMA Insurance does not engage the NAR to do so, but pays the insured (not the NAR) a ‘cash settlement amount’, being an amount which is the amount NRMA Insurance assesses as ‘the fair and reasonable cost of repairing the vehicle’.

19                  Paragraphs 66 to 70 of Mr Pemberton’s affidavit are as follows:

’66       To determine the fair and reasonable cost of repairing the vehicle, NRMA Insurance needs to inspect the vehicle prior to the commencement of any repair work.  This is effected in any of the following ways.

(a)   An NRMA Insurance assessor inspecting the vehicle at the premises of the Non-Accredited Repairer.  In some rare cases, NRMA Insurance may refuse to inspect the vehicle at the Non-Accredited Repairer’s premises.  This may occur, for example, where NRMA Insurance is of the view that its assessor may experience threatening, intimidating or otherwise unacceptable behaviour if the assessor visits the premises of a particular Non-Accredited Repairer, or if the state of the repairer’s premises is such that NRMA Insurance concludes there is an unacceptable occupational health and safety risk for its assessor associated with conducting an inspection at the repairer’s premises.

(b)   An NRMA Insurance assessor inspecting the vehicle at a location other than the premises of the Non-Accredited Repairer, such as the home or work premises of the insured.

(c)    NRMA Insurance directing the insured to take the vehicle to the premises of a PSR or ASR so that the PSR or ASR can prepare, for NRMA Insurance, a quote for the repair of the vehicle.  If the vehicle requires towing, NRMA Insurance arranges for the vehicle to be towed from and to the Non-Accredited Repairer’s premises.  The cost of the towing is borne by NRMA Insurance.

67.       It is not unusual for the insured or the Non-Accredited Repairer to organise a second quote on the vehicle from a second repairer or a third party vehicle assessor, and forward that quote to NRMA Insurance.

68.       After inspecting the vehicle, or obtaining a quote on the vehicle from a PSR or ASR, or considering the second quote provided by the insured, or a combination of the foregoing, the NRMA Insurance assessor determines the Cash Settlement Amount.  The assessor then discusses with the insured the amount that NRMA Insurance will pay as the fair and reasonable cost of repair, and usually reiterates NRMA Insurance’s recommendation that the vehicle be repaired by a PSR.

69.       If, following the discussion with the assessor referred to in the previous paragraph, the insured still elects to have the vehicle repaired by a Non-Accredited Repairer, then NRMA Insurance pays the Cash Settlement Amount to the insured.  The insured is not obliged to apply these monies to the repair of the vehicle, but usually does as a failure to return the vehicle to a state of good repair entitles NRMA Insurance to cancel the insurance policy.  NRMA Insurance does not authorise the quote of the Non-Accredited Repairer or otherwise engage the Non-Accredited Repairer to undertake the repair work for or on behalf of NRMA Insurance.  NRMA Insurance does not pay any amount to the Non-Accredited Repairer.

70.       In unusual circumstances, NRMA Insurance may authorise repair work by a Non-Accredited Repairer and thereby become responsible to the insured for repair of the vehicle.  An example of circumstances in which NRMA Insurance may be prepared to authorise the work of a Non-Accredited Repairer is when an event (such as a violent hailstorm) causes widespread damage and results in so many claims under NRMA Insurance policies that all the work cannot be expeditiously handled through the PSR and ASR networks.  Rather than deny a customer the benefit of having NRMA Insurance engage the repairer and so take responsibility for the repair work, if there is no PSR or ASR able to undertake the work within a reasonable timeframe, NRMA Insurance may authorise a Non-Accredited Repairer to perform the work.  In such a case, NRMA Insurance engages the repairer and pays the repairer directly, rather than cash settling  [paying] the insured.’

20                  There are four methods which NRMA Insurance uses to assess quotes for repairs:

·        Field assessment;

·        ‘Line by line’ assessing;

·        ‘Fast-track’ assessing;

·        Self assessing.

Field assessment involves a physical examination of the vehicle by the assessor.  It is the method which allows the most detailed and informed review of a quote.  It was the main method of assessment used prior to the introduction by NRMA Insurance of its ‘Online Repair Management’ (‘ORM’) system in 2000.

21                  The ORM system involves the submission of quotes, digital images of damaged vehicles and other information to NRMA Insurance via the internet.  The ORM system eliminates the delay associated with field assessment.  All PSRs and about 70% of ASRs participate in the ORM system.  Accordingly, in the cases of all PSRs and about 70% of ASRs, there is no delay in assessment of the claim and authorisation to proceed with repairs that is attributable to any necessity of field assessment.

22                  Both line by line assessing and fast-track assessing involve the ORM system and take place at the assessor’s desk at the NRMA Insurance assessing centre.  The latter does not entail a detailed review of every item on the quote, whereas the former does.  Although line by line assessing itself takes, on average, only about 15 minutes, the quote may be in a queue – it is not ‘fast-tracked’.  When it will be reached depends on the length of the queue.  Mr Pemberton said that on average it should, and probably does, take about a day for an individual quote to be reached.  He said that he did not ‘have the statistic in [his] head’, but agreed with the cross-examiner that it would not take one or two weeks to be reached.

23                  In relation to ‘self assessing’ Mr Pemberton states:

‘PSRs with whom NRMA Insurance has a very strong business relationship and who have a proven record of providing competitive quotes may be appointed to “self-assessing” status.  NRMA Insurance has policies regarding which repairers are eligible to be considered for self-assessing status, with the final decision whether to appoint a repairer to self-assessing status at the discretion of the local NRMA Insurance assessing centre management.  The appointment to self-assessing status reflects a decision by NRMA Insurance, through its local managers, that it can rely upon the repairer to submit a competitive quote.

Under the self-assessing process, a repairer is still required to prepare and submit a quote to NRMA Insurance.  The repairer, however, is authorised by NRMA Insurance to commence repairing the vehicle prior to receiving an authorisation of the quote from NRMA Insurance.  The quote must, however, be authorised by NRMA Insurance before NRMA Insurance will accept an invoice from the repairer for the work.  Which assessment method (fast-track or line-by-line) is used to review a quote from a self assessing repairer is at the discretion of the relevant NRMA Insurance assessing centre.  In the ordinary course, a quote from a self-assessing repairer is assessed under the fast-track method.’

24                  Repairers whose quotes are dealt with by fast-track assessing are predominantly PSRs, but some of them are ASRs.  The criterion for ‘fast-track’ assessment is ‘performance’ (see [26] to [28] below).  Ordinarily, under the fast-track method, a quote is approved within a matter of hours from its receipt by NRMA Insurance.

25                   It is clear from the above account, that the timeliness of assessment and of authorisation depends on many considerations.  As a broad generalisation only, a quote is likely to be assessed and commencement of repairs authorised earlier in the case of PSRs than in the case of ASRs, but this is definitely not always true.  A major consideration is whether the particular ASR is, as all PSRs are, on the ORM system.  But most ASRs are also on the ORM system.  Another is whether the PSR or ASR enjoys the benefit of fast-track assessing.

26                  Clause 11 of the PSR Agreement requires NRMA Insurance and the PSR to negotiate and enter into a ‘Repairer Performance Plan’, specifying the PSR’s goals, how its performance by reference to those goals is to be measured, and the steps to be taken by the PSR to achieve the goals.  Clause 11 of the ASR Agreement provides that if requested by NRMA Insurance, the ASR must do likewise.  As at December 2003, approximately 30% of ASRs had entered into performance plans. 

27                  NRMA Insurance monitors the ‘performance’ of PSRs and ASRs.  As well as reviewing quotes as they are submitted, it monitors a PSR’s or ASR’s ‘average repair costs’.  According to Mr Pemberton, it also undertakes, from time to time, ‘Performance Investigations’ of individual PSRs or ASRs, in which it reviews any or all of:  ‘the cost of repair or the amount quoted’; ‘the quality of repair work’; and ‘the standard of service provided to NRMA Insurance customers’.  NRMA Insurance ranks PSRs as ‘gold’, ‘silver’, ‘bronze’ and ‘red’.  Repairers ranked gold or silver are considered the better performers and those ranked bronze and red are considered not to be performing to the expected standard.  Unless a bronze or red rated PSR improves its performance, NRMA Insurance will consider terminating the PSR Agreement with that repairer.  ASRs who have entered into a performance plan with NRMA Insurance are similarly ranked.  It follows that about 70% of ASRs are not in a position to attract the benefits of a gold or silver performance rating.  NRMA Insurance informs repairers of their rankings.  An ASR may be ‘promoted’ to the status of PSR.

28                  A practical consequence of the rankings is that NRMA Insurance gives priority to gold and silver PSRs over bronze and red PSRs in the allocation of work.  In addition, gold and silver ranked repairers receive the benefit of expeditious payment of their invoices.  According to Mr Pemberton, approved invoices of gold and silver PSRs and ASRs are paid within one day; bronze PSRs and ASRs are paid within 7 days; and red PSRs and ASRs are paid within 14 days.  ASRs who have not entered into a performance plan, and who therefore are not ranked, but who participate in the ORM system, are paid within 14 days.  In other cases, invoices are paid within 21 days.

29                  In relation to towing, Mr Pemberton stated in his affidavit:

‘When an insured vehicle is damaged and requires towing, and the policyholder is entitled to and does make a claim under the insurance policy, the usual practice of NRMA Insurance is to pay for the cost of towing the vehicle from the place of the accident to the repairer (except to the extent that the cost of the tow is unreasonable in the circumstances) whether that repairer be a PSR, an ASR or a Non-Accredited Repairer.  NRMA Insurance’s general policy and practice does not require the insured to agree to have the vehicle repaired by a PSR or ASR before it, NRMA Insurance, will pay for or indemnify the insured for the cost of towing.’

30                  Obviously, the focus of AARA’s attack is, as it must be, the scheme currently operating, which I have called the PSR scheme, and which might as well have been called the PSR/ASR scheme.  Shortcomings in the antecedent Competitive Partnering scheme, or the even earlier Known Repairer scheme, are not to the point unless they have been carried forward into the PSR scheme.

31                  NRMA Insurance led evidence from Peter Van Der Weide, a director of JPV Creative Custom Auto Repairs Pty Ltd (‘JPV’) which was previously a Competitive Partner, and is now a PSR, and a ‘Self-Assessing Repairer’.  Mr Van Der Weide testified as to the procedure followed by JPV in connection with its repair of vehicles insured by NRMA Insurance.  His testimony was generally in line with that of Mr Pemberton.  He states that JPV receives a notification from NRMA Insurance when NRMA Insurance allocates a vehicle to it for repair.  Since JPV participates in the ORM system, communication between JPV and NRMA Insurance is via the internet.  Since JPV is a Self-Assessing Repairer, once it receives the notification of allocation, it is authorised by NRMA Insurance to commence repairing the vehicle immediately, even before sending its quote to the insurer.  Indeed, Mr Van Der Weide states that by stretching and stripping the vehicle first, JPV is able to provide a better informed quote to NRMA Insurance.  In any event, JPV receives NRMA Insurance's response to its quote within 24 hours.

32                  Once the repairs are completed, JPV notifies the owner that the vehicle is ready for collection.  Generally speaking, JPV collects from the owner the amount of the excess payable under the policy, as advised to JPV by NRMA Insurance.  In the usual course, JPV retains that amount and NRMA Insurance deducts it from the amount it is to pay to JPV.

33                  When the owner collects the vehicle, JPV provides the owner with NRMA Insurance’s standard form of ‘Lifetime Guarantee’ in respect of the repairs.

34                  After the owner has collected the vehicle, JPV sends an invoice to NRMA Insurance (again, via the ORM system).  Since becoming a PSR, JPV has generally been either a gold or silver rated PSR.  However, it was recently downgraded to bronze.  The earlier downgrading from gold to silver and the present downgrading from silver to bronze were due to the fact that JPV’s ‘average repair cost’ had not been low enough to attract NRMA Insurance’s approval.  JPV receives payment from NRMA Insurance within 24 hours of sending its invoice.

35                  Mr Van Der Weide regards JPV as providing its repair services to NRMA Insurance.  Nonetheless, for reasons he gives, he says that JPV has an interest in ensuring that the insured is satisfied with the repairs.  He considers that the PSR scheme has had ‘a big effect’ on the way JPV works.  It has influenced JPV to strive for greater efficiency in ‘producing high quality repairs at lower costs and shorter turn around times’. 

36                  Mr Van Der Weide states that NRMA Insurance has conducted business training courses for PSRs in which he has participated.  He states that JPV runs its business more efficiently than it did prior to the introduction of the PSR scheme; that its average cost of repairs is lower; and that it has preserved its profit margin by reducing costs and increasing the volume of repair work it undertakes.

37                  AARA led evidence from two ASRs: George Elmassion of JS Craig Panel Beating (NSW) Pty Ltd (‘JS Craig’), and Jerry Yahya of J.S.Y (Aust) Pty Limited trading as ‘Vision Auto Smash Repairs’.

38                  Mr Elmassion gave evidence of conversations he had with Teleclaims Consultants on or about 16 October 2001, 1 February 2002, 14 March 2002 and 18 March 2002, in relation to particular insureds and their vehicles.  The evidence was directed to proving that NRMA Insurance told insureds that in the case of ASRs, but not PSRs, there was a delay in assessing a claim (and therefore in commencement of repairs) and that no NRMA Insurance ‘Lifetime Guarantee’ was available in respect of repairs carried out by ASRs.

39                  As an ASR, JS Craig was in fact required by NRMA Insurance to deliver its form of Lifetime Guarantee in respect of JS Craig’s repair work.  Mr Elmassion said he had a quantity of the forms of Lifetime Guarantee which he signed on behalf of NRMA Insurance and issued to insureds.  In the Pleading, there is no reference to a Lifetime Guarantee point.  (AARA’s statement of claim had been the subject of several strike out motions and associated amendments, and at trial AARA sought leave to amend it again to refer to the supply of the Lifetime Guarantee as a further service which NRMA Insurance refused to supply.  I refused leave for reasons which I gave at the time.) Accordingly, I will ignore Mr Elmassion’s complaint that NRMA Insurance wrongly told insureds that if JS Craig did the repairs, they would not receive a Lifetime Guarantee.

40                  Mr Elmassion said that from October 1998 to 1 March 2002, JS Craig was a ‘Competitive Partner’, and on the latter date, which was the date of commencement of the ASR program, became an ASR.  He said that shortly afterwards, on 5 June 2002, JS Craig entered into an ‘Online Repair Management Agreement’ with NRMA Insurance, and that by participating in the ORM system, JS Craig obtained prompt approvals of quotes from NRMA Insurance’s assessors.

41                  Mr Elmassion also complained that NRMA Insurance delays paying ASRs for repairs for 28 days after payment is authorised.  The complaint of delay in payment, to which other evidence led also related, did not feature in the Pleading either, and I will ignore it.

42                  Mr Yahya, like Mr Elmassion, attended a meeting of ASRs at the Hurstville office of NRMA Insurance in early 2003.  The meeting was addressed by Theo Pittas of IMA.  According to both Mr Elmassion and Mr Yahya, Mr Pittas told the ASRs present that one advantage of becoming a PSR was that their payments would not be delayed, and that in fact they would be paid within 24 hours or so rather than having to wait 28 days as an ASR had to do.  They said that Mr Pittas also said that if the ASRs become PSRs, NRMA Insurance would be able to ‘direct more work’ to them, and would be able to inform insureds that, as PSRs, they would be in a position to commence repairs within 24 hours of a claim being made by the insured.

43                  Mr Pittas gave evidence.  Since 1999 he has been the Motor Assessing Manager for ‘the Metro-South region’ of metropolitan Sydney.  He had commenced employment with NRMA Insurance in 1986 as a loss assessor, and in about 1994 had been promoted to the position of Assistant Manager.

44                  Mr Pittas said that he held three meetings with ASRs over 18 and 19 February 2003 (he annexed to his affidavit the relevant pages from his diary) at 5/9 Woodville Street, Hurstville.  The meetings covered the same subject matter, but different ASRs were invited to attend the respective meetings. 

45                  Mr Pittas said he did not recall attending any meeting with ASRs in May 2003, and his diary did not record any meeting with them in that month.  In cross-examination, Mr Elmassion and Mr Yahya conceded that the meeting to which they had referred in their affidavits as taking place in May 2003, may have been held earlier in that year, perhaps as early as February 2003.  I accept, on the evidence, that the meeting or meetings to which they referred was or were held in February 2003.

46                  Mr Pittas agreed that Messrs Elmassion and Yahya attended one or other of the three meetings held on 18 and 19 February 2003.  He said he could not recall any discussion about the timeliness of payment to PSRs in contrast to ASRs, and said that if he had been asked about that matter he would have remembered it.  Mr Pittas attached to his affidavit copies of the agenda and of some slides he used at the meetings.  They are consistent with his evidence that the focus of attention was ‘the difference between average repair costs for PSRs and ASRs’.

47                  Mr Pittas said that if, contrary to his recollection, the subject of delay in payment to ASRs was raised, he would not have commented on the time it takes for an ASR to be paid because that is something outside his area of responsibility, and as a general practice he does not discuss such matters with repairers.  At another point in his cross-examination he agreed he told the ASRs that one of the advantages of becoming a PSR was that their payments would not be delayed.  The agenda and slides are not conclusive as to whether a discussion of timeliness of payment took place.  As already noted, timeliness of payment is irrelevant to any issue I have to decide in this case, and therefore I need not decide whether the recollection of Mr Elmassion and Mr Yahya on the one hand, or that of Mr Pittas on the other, is correct. 

48                  Mr Pittas denied saying that if the ASRs present became PSRs, NRMA Insurance:

·         would be able to direct more work to them; and

·         would be able to inform insureds that as PSRs they would be in a position to commence repairs within 24 hours of the claim being made.

49                  He agreed, however, that as a matter of fact, if ASRs became PSRs, NRMA Insurance would direct more work to them.  I need not decide whether Mr Pittas made either statement to the ASRs present at the meeting or meetings attended by Messrs Elmassion and Yahya – they are not rationally probative in relation to NRMA Insurance’s conduct directed towards its insureds who called the Teleclaims Centre – (see [73] to [86] below).

50                  Counsel for AARA sought to read an affidavit of Trish Berendsen-Simper, a ‘Marketing Strategy Executive’, as expressing expert testimony as to common corporate practice ‘throughout the call centre industry’ in relation to call centre consultants.  I ruled the whole of the substance of the affidavit inadmissible, and gave short ex tempore reasons for doing so, indicating that I would include those reasons, I trust more elegantly expressed, in these reasons for judgment. 

51                  Ms Berendsen-Simper’s affidavit was relied on to establish that:

(i)                  the Teleclaims Consultants probably departed from the standard script, and

(ii)                NRMA Insurance probably encouraged them to do so or approved of, or acquiesced in, their doing so.

52                  The evidence tendered was clearly inadmissible.  It suffices to say that the evidence of Ms Berendsen-Simper did not satisfy the relevance test established by the Evidence Act 1995 (Cth): it could not rationally affect the assessment of the probability of the existence of either of the two facts mentioned: see ss 55 and 56 of that Act.

53                  In any event, Ms Berendsen-Simper’s evidence is not persuasive and should be given no weight.  The critical question is whether the ‘call centre industry’ practice which she described was a feature of what happened in the particular case of NRMA Insurance and its Teleclaims Centre.  There is evidence in relation to adherence to, and departure from, the script by the Teleclaims Consultants.  There is also evidence as to the size of the bonuses they receive, according to how many of their callers agree to have repairs effected by PSRs.  The existence of this evidence demonstrates the superfluousness of Ms Berendsen-Simper’s testimony.

54                  AARA also led evidence from Ms Laura Gharibian, a former NRMA Insurance Teleclaims Consultant.  Her testimony was directed to establishing that NRMA Insurance, through its Teleclaims Consultants, encouraged as many callers as possible to agree that repairs be effected by a PSR.  In particular, she said she was criticised for not being assertive enough in her efforts to persuade callers to that end, and that she had never been told to inform callers that it was ultimately a matter of choice for them whether to opt for a PSR.  She agreed, however, that she was instructed to adhere to the script she was given and that she tried to do so. 

55                  Ms Gharibian had been employed as a Teleclaims Consultant from June 2001 to approximately February 2002 – prior to the introduction of the ASR category in March 2002.  She acknowledged that the script she was given was the version issued in May 2001 and that she had never seen even the next one issued (February 2002) (see [75] below).  The May 2001 script referred to the Competitive Partnering scheme (see [12] above).

56                  Ms Gharibian’s testimony is not relevant to the grounds on which I decide below that AARA’s application should be dismissed.

NRMA Insurance’s Motor Vehicle Insurance Policy

57                  There is in evidence, annexed to Mr Pemberton’s affidavit, an NRMA Insurance’s Motor Vehicle Insurance Policy booklet, edition 3 dated November 2001.  It was not in dispute that this booklet contained the relevant policy conditions.  It provides for ‘Comprehensive Insurance’, ‘Third Party Fire and Theft Insurance’ and ‘Third Party Property Damage Insurance’.  The insured was to elect the class of cover desired.

58                  With respect to claims under a Comprehensive Insurance policy, it is stated (at page 14, with respect to claims for accidental or malicious damage, and at page 16 with respect to claims for storm, flood or fire damage):

‘If your vehicle suffers [“accidental or malicious damage” or “loss or damage as a result of storm, flood or fire”] we [NRMA Insurance] may decide to:

·        repair your vehicle

·        pay you the cost of repairing your vehicle, or

·        pay you the:

–  agreed value or

– market value,

depending on the cover shown on your current Certificate of Insurance.’

59                  The option of NRMA Insurance to repair or to pay the cost of repairing also appears with respect to claims under Third Party Fire and Theft Insurance (at pages 22 and 26 (Uninsured motorist damage)) and Third Party Property Damage Insurance (at page 26 (Uninsured motorist damage)).

60                  The policy gives NRMA Insurance a choice as to the manner of discharging its insuring obligation.  Relevantly (for convenience, I will not henceforth refer to payment of the agreed value or the market value), it may choose either to repair the vehicle or to pay to the insured the cost of repairing it.  If NRMA Insurance decides on the latter course, its obligation is performed once it pays: the actual carrying out of repairs is a matter for the insured.

61                  The policy provides that if NRMA Insurance agrees to pay a claim, it will also cover the reasonable cost of towing the insured’s vehicle from the scene of the incident to the nearest repairer recommended by NRMA Insurance or to a place of safety, and that if there is more than one tow, NRMA Insurance will decide which one is covered under the policy.  (Comprehensive Insurance at page 18; Third Party Fire and Theft Insurance at pages 23 and 27 (Uninsured motorist damage); Third Party Property Damage Insurance at page 27 (Uninsured motor damage)).

62                  The following provisions apply to all three forms of cover. 

63                  On page 9 of the policy is a section headed ‘Your co-operation is essential’, which includes the following:

‘The benefits of this Policy will depend on you or any person covered by this Policy giving us any information and help we require.  This includes giving us any statements or documents we consider relevant, or obtaining additional quotations for repairs if requested.’

64                  Under the heading ‘Claims’ in the booklet, the following passages appear:

‘How you must co-operate

In the event of a claim, your co-operation is essential.  Your obligation to co-operate is outlined in “Your co-operation is essential” on page 9.

You must help us even if we have paid your claim.’

and

 ‘If your vehicle can be repaired

If your vehicle can be repaired, we will advise you of a suitable repairer/s or repair centre.  If your vehicle is not driveable, we can arrange for it to be towed there.  You may choose to have your vehicle repaired at another repairer not nominated by us.  In this instance we decide whether we will:

·        pay you what it would have cost us to repair your vehicle at one of our nominated repairers

·        pay you the fair and reasonable cost to repair your vehicle at your nominated repairer, or

·        authorise the fair and reasonable cost of repairs at your nominated repairer.

Lifetime guarantee

If you use a repairer of our choice, the workmanship for the repairs to your vehicle will be guaranteed for the life of your vehicle.’

The PSR Agreement and the ASR Agreement

65                  A form of NRMA Insurance’s PSR Agreement is in evidence.  It provides for appointment by any ‘IAG Insurer’, an expression which is defined to include NRMA Insurance, of a person as a PSR.  By cl 1.1, relevantly, NRMA Insurance agrees to appoint the person as a PSR, and by cl 1.2, the person agrees to carry out smash repair work for NRMA Insurance ‘on its behalf’ in accordance with the terms of the PSR Agreement.  Clause 4.1 provides that NRMA Insurance may, from time to time, provide the PSR with an ‘Operations Manual’, or with written procedures or guidelines to be followed in the PSR’s dealing with ‘Customers’ when carrying out repairs for NRMA Insurance to ‘Customers’ vehicles’.  According to cl 58.1, the word ‘Customer’ means a person in respect of whose motor vehicle NRMA Insurance has asked the PSR to provide NRMA Insurance with a quote for smash repair work, or whose motor vehicle NRMA Insurance has authorised the PSR to repair for NRMA Insurance.

66                  Clause 6.3 of the PSR Agreement states:

‘Acceptance of a Quotation gives rise to a binding contract between [NRMA Insurance] and [the PSR] for the repair of the Customer’s vehicle on the terms of this PSR agreement and the Quotation.’

67                  Clause 8 provides for monitoring by NRMA Insurance in relation to each repair contract, of the PSR’s compliance with the terms of the PSR agreement, and of the PSR’s performance in the areas of cost, quality, customer service, and the following of NRMA Insurance’s set procedures.  Clause 9 provides for ‘performance investigations’.  If, for example, NRMA Insurance believes that a PSR has provided it with quotations, or invoiced it for costs, that are ‘uncompetitive’, or that the quality of repairs carried out do not meet the standards required under the PSR Agreement, or that the quality of service provided to Customers does not meet the standards so required, NRMA Insurance may conduct a review of the amounts which the PSR quotes or charges, or has quoted or charged, the quality of repairs the PSR carries out or has carried out, and the quality of service the PSR provides or has provided to Customers. 

68                  Clause 10.1 provides that NRMA Insurance may from time to time recommend the PSR to Customers as a PSR to carry out, on NRMA Insurance’s behalf, smash repair work for which NRMA Insurance believes the PSR is appropriate and suitably qualified.  In deciding whether or not to make such a recommendation, NRMA Insurance may take into account, for example, the results of any performance investigation.

69                  Clause 30 provides that the relationship between NRMA Insurance and the PSR is that of independent contractor and principal, except as expressly provided otherwise in the PSR Agreement.  Clause 41 specifies, in paras (a) to (p), certain obligations undertaken by the PSR, and makes it clear that those obligations are undertaken by the PSR to NRMA Insurance.  An example is found in cl 41.1(h) which is:

‘You must: …

(h)       if required by Us, collect any excess or other contributions from Our Customers for Us as Our agent and, if requested by Us, apply such amounts towards the cost of the Smash Repair Work.’

In cl 44 the PSR undertakes not to charge NRMA Insurance, nor include in any quote or variation prepared for NRMA Insurance, certain specified amounts.

70                  Clause 47 provides that if NRMA Insurance accepts the PSR’s quotation, it will provide written authority to the PSR to commence repairs in accordance with the quotation.  By cl 51, the PSR is required to invoice NRMA Insurance in accordance with the quotation and any variation of it that has been authorised by NRMA Insurance.

71                  Clause 54 provides that if NRMA Insurance finds any repair work performed by the PSR or materials used by it in repairing an insured’s vehicle to be defective, NRMA Insurance will have the rights and remedies referred to in that clause, such as, the right to require the PSR to rectify the defect at the PSR’s expense. 

72                  The ASR Agreement contains provisions relevantly identical to those in the PSR agreement outlined above. 

Teleclaims

73                  Most claims by insureds are made over the telephone to ‘Teleclaims Consultants’ in NRMA Insurance’s ‘Teleclaims Centre’ at Parramatta.  Much of the evidence in the case concerned the conversations which occur between these Consultants and insureds.  As will appear below, however, on my analysis, the terms of the insurance policy and of the PSR Agreement and the ASR Agreement summarised above are decisive of the issue, under s 47(7) of the Act, which the Pleading poses for decision.  The conversations between insureds and Teleclaims Consultants do not indicate a variation of the contractual régimes as between NRMA Insurance and its insureds, and as between NRMA Insurance and the PSRs and ASRs established by those documents.

74                  Teleclaims Consultants are provided with a script by NRMA Insurance, and are directed to point out, in accordance with the script, the advantages of the vehicle being repaired by a PSR or ASR.  NRMA Insurance gave evidence that Teleclaims Consultants are instructed, during their initial training, not to say anything that is inconsistent with the standard script, or that is a material or significant deviation from the script, or an exaggeration, or anything that could otherwise be misleading.

75                  The following scripts were in evidence:

1.      Competitive Partnering Claims Lodgment Script (April 2000)

2.      Repair Option Script (May 2001)

3.      Repair Option Script (February 2002)

4.      Repair Option Script (March 2002)

5.      Repair Option Script (10 May 2002 – 19 December 2002)

6.      Repair Option Script (20 December 2002 – 6 April 2003)

7.      Repair Option Script – NSW/ACT (7 April 2003 – 19 October 2003)

8.      Preferred Smash Repairer (PSR) Script (20 October 2003 – 11 January 2004)

9.      Preferred Smash Repairer (PSR) Script (12 January 2004 – to date).

76                  The Teleclaims Consultants were also provided with documents entitled ‘NSW/ACT Repairer Features’.  Their purpose was to equip Teleclaims Consultants with information as to the features associated with the various classes of repairer.  The following versions of that document, covering the following respective periods, were in evidence:

NSW/ACT Repairer Features (10 May 2002 – 30 March 2003)

NSW/ACT Repairer Features (31 March 2003 – 6 April 2003)

NSW/ACT Repairer Features (7 April 2003 – 19 October 2003)

NSW/ACT Repairer Features (20 October 2003 – to date).

77                  The current script states: ‘Our goal is to refer the insured to a Preferred Smash Repairer whenever possible’.  In the current version of the document entitled ‘NSW/ACT repairer features’, the following appears:

‘Contents

 

            Preferred Smash Repairer – features

Associate Repairer – features

Non-accredited Repairer – disadvantages to insured

Overview

Our business goal wherever possible, is to refer the insured to a Preferred Smash Repairer.

The benefits of using a Preferred Smash Repairer, the features of Associate Repairers and the disadvantages of choosing a non-accredited repairer are described in this topic.

Preferred Smash Repairer – features

·          The authorisation to commence repairs to your vehicle will be treated as a priority.

·          Peace of mind that the repairer meets our high standards for quality of work and customer service.

·          Repairers easily identified by displaying the PSR signage.

·          Repairers have earned their position by meeting or exceeding a number of criteria including customer service, quality of repairs and efficiency.

·          Repairer has committed to us to provide priority of service.

·          The workmanship for repairs to the vehicle will be guaranteed for the life of the vehicle. (Do not read this feature to the insured if they indicate they have their own Associate repairer they wish to use.)

            Associate Repairer – features

 

Benefits to insured

The workmanship for repairs to the vehicle will be guaranteed for the life of the vehicle.

Disadvantages to insured

·          Possible delays in the assessment of the motor vehicle (may result in delays in commencing repairs).

·          Insured may be required to wait for authority to commence repairs.

Non-accredited repairers – disadvantages to insured

·          Insured will not receive any benefits of using our Preferred Smash Repairer.

·          Insured will not be offered any guarantee of repairs by us.

·          Insured will be required to assume full responsibility for the quality of all repairs.

·          We will not intervene if work conducted is unsatisfactory.

·          Additional quote may be required from another repairer.

·          Insured may be required to arrange for their vehicle to be taken to another repairer’s premises for the assessment.

·          Assessed cost of repairs are cash settled and insured’s policy may be cancelled if the repairs do not meet industry standards or the vehicle is not repaired within 28 days of assessment by us.’

78                  The performance of Teleclaims Consultants is monitored against, inter alia, the criterion of compliance with the script.

79                  After a trial period in March 2003, NRMA Insurance introduced call recording at the Parramatta Teleclaims centre. This enables managers to retrieve recordings of any calls made to or by Teleclaims Consultants.  Since December 2003, managers have been required to listen to one call of each Teleclaims Consultant per month, and the manager then completes a ‘Feedback Sheet’ giving the call a score between zero and five, which is converted to a percentage and added to the Teleclaims Consultant’s file.  Mr Meikle, a Training and Development Consultant for NRMA Insurance, gave evidence that deviations from the script generally result in lower feedback scores.  Mr Meikle reviewed the average scores of Teleclaims Consultants in 2003.  On the basis of his review, he calculates that 93.61% of Teleclaims Consultants received an average score of 85% or higher.  He estimates that Teleclaims Consultants deviate from the scripts in an untruthful, misleading or deceptive way in less than 1% of calls.

80                  I have read the transcripts of numerous conversations between insureds and Teleclaims Consultants, including all those containing passages to which I was referred in AARA’s submissions.

81                  There is considerable variation as between what the Teleclaims Consultants said to their callers.  No doubt this is explained to some extent by the different factual circumstances presented.  In some cases, there was no recommendation of a PSR at all.  This may have been because the Consultant appreciated that the repairer nominated by the insured was a PSR in any event. In others, the Teleclaims Consultant ‘steered’ the caller to a PSR.  In some of those cases the caller had not previously nominated a repairer.  In others the caller had indicated an intention, but not a preference, to have the repairs carried out by a particular ASR or NAR.  For example, in one case the caller had selected the proposed repairer from the Yellow Pages of the Telephone Directory and welcomed the Teleclaims Consultant’s recommendation of a PSR.  In some cases the Teleclaims Consultant emphasised that ultimately the choice was that of the insured.  In some cases the question of ‘choice’ did not arise.  In no case did the Teleclaims Consultant say that the repairs must be carried out by a PSR.

82                  In any assessment of the conversations, it must be borne in mind that:

·         both PSRs and ASRs deliver the NRMA Insurance ‘Lifetime Guarantee’;

·         approximately 70% of ASRs participate in the ORM system;

·         only PSRs are permitted to ‘self-assess’, but not all PSRs are permitted to do so (see [23] above);

·         in order to be gold or silver rated, an ASR must enter into a Repairer Performance Plan (as all PSRs must do), and only some 30% of ASRs have done so;

·         the repairers who enjoy the benefit of fast-track assessing are predominantly, but not exclusively PSRs (see [23] above), gold or silver rated ASRs being also accorded that benefit.

As a result of the above, although it may be true to say that a hypothetical ‘average PSR’ would be in a position to commence repairs earlier than a hypothetical ‘average ASR’, some ASRs (apparently JS Craig is one of them) are in a position to commence work just as early as many PSRs (apparently earlier than some PSRs, such as bronze or red rated PSRs).

83                  It is difficult to avoid the impression that a major source of the sense of grievance which has given rise to this proceeding is that the complexity of the PSR scheme makes it impossible for a Teleclaims Consultant to convey accurately to a caller a comparison between the time for assessment of a claim and for authorisation to proceed with repairs, as between a particular ASR nominated by the insured and a particular PSR or particular PSRs in the same locality.  Indeed, no attempt is made to do so, even though this is the information an insured needs to have in order to make a fully informed choice.  NRMA Insurance merely instructs the Teleclaims Consultants to inform callers that in the case of ASRs there are ‘possible’ delays in assessment, and that there ‘may be’ delays in authorisation to proceed with repairs (see [77] above).

84                  Mr Elmassion of JS Craig said this:

‘I was on competitive partnering which meant we would send a quotation with an authority to commence repairs and within 24 hours that would come back to us and we could start within 24 hours.  Once the internet, it’s called the exchange through our computing – through out quoting package began it was the same thing.  We’d send it through the internet and within 24 hours we’d get the authority.  I took a very very keen interest in making sure that I was there when my clients were speaking with the NRMA because they were trying very hard to tell them you won’t get authority within 24 hours, you will not get a lifetime warranty and I was losing a lot of business and I’d be working – I’d be at work from 5.00 o’clock in the morning and I’d probably work till about 6 or 7 at night and it came to a point where if a car was towed to my shop at 10.00 o’clock at night I would have to go there, ring the NRMA up because once that client went home they’d never come back to me again.  So I’d have to go – then I’d have to speak to them again, inform, show the client my contracts and say, “This is your lifetime warranty”, and I’d open it up to them.  I’d say, “This is the process.  Hopefully within 24 hours once I’ve done the quote I can commence work on your vehicles” and if I didn’t do that almost – unless it was a personal friend I’d lose the job.’ (I have not removed the solecisms in the passage)

Mr Elmassion said that JS Craig might receive NRMA Insurance’s approval within an hour or two, and only occasionally would it take between one and two days.  He said that any delays experienced were not related to JS Craig’s status as an ASR but to ‘technical or procedural problems with the policy or the technical equipment’.

85                  The Annexure to these reasons comprises extracts from a sample of the transcripts of the numerous conversations in evidence.  The purpose of the Annexure is to illustrate a considerable volume of the evidence on which AARA relied to establish its case.  The first five conversations relate to JS Craig.

86                  Ultimately, the telephone calls do not advance AARA’s case on the Pleading.  In relation to the allegation that it contravenes s 47(7), NRMA Insurance concedes that it informs its insureds that there are advantages of expeditious assessment of claims and authorisation to proceed with repairs in the case of PSRs, as against ASRs and NARs, and seeks to influence its insureds to agree that the repairs be effected by a PSR.

REASONING

87                  In my opinion, the evidence does not establish conduct by NRMA Insurance which is within s 47(7) of the Act.

Does the insured agree to ‘acquire goods or services … directly or indirectly from [a PSR]’?

88                  Upon a proper analysis, there is never any question of the insureds acquiring goods or services, directly or indirectly, from a PSR, and NRMA Insurance does not suggest that the insureds do so.  Rather, upon that analysis, insureds agree to NRMA Insurance’s electing to repair the vehicle, a course which NRMA Insurance explains to them will involve its acquiring goods and services from a PSR.  This analysis is based on the terms of the motor vehicle insurance policy outlined at [57] to [64] above, and of the ASR Agreement and PSR Agreement outlined at [65] to [72] above, and on the practice according to which a PSR or ASR provides a quote to NRMA Insurance, NRMA Insurance authorises the PSR or ASR to proceed, the PSR or ASR bills NRMA Insurance, and NRMA Insurance pays the PSR or ASR.

89                  The policy’s insuring clause was set out at [58] above.  Under it, NRMA Insurance may decide, relevantly, to repair the vehicle (which is the property of the insured throughout) or to pay to the insured the cost of repairing it.  It has not been suggested that this right of choice which the policy reserves to NRMA Insurance is for any reason (such as, that it falls foul of s 47(7) of the Act) ineffective, or that NRMA Insurance is under any obligation to decide in one way rather than in the other.

90                  If NRMA Insurance itself employed the repairer, it would be clear that NRMA Insurance would be repairing the insured’s vehicle.  The position is no different when NRMA Insurance engages a repairer to effect the repairs: as between NRMA Insurance and the insured, NRMA Insurance is repairing the insured’s vehicle pursuant to its policy obligation.

91                  If NRMA Insurance decides to repair the insured’s vehicle and the repairs are defective, it could not seriously be suggested that the insured’s contractual remedy is against the repairer rather than against NRMA Insurance.  The insured’s contractual remedy is against NRMA Insurance alone, and it is NRMA Insurance alone which has a contractual remedy against the repairer (see [71], where cl 54 of the PSR Agreement was discussed).  If the insured accepts the vehicle back as one that has been adequately repaired, the insured accepts it has having been adequately repaired by NRMA Insurance in discharge of its obligation to the insured under the contract of insurance.  In so far as an ‘acknowledgement of satisfactory repair’ might be expressed to benefit, or be held in fact to benefit, a PSR, it would relate to any general law duty of care incumbent on the PSR, and would not point to a supply of services by the PSR to the insured for the purposes of s 47 of the Act.

92                  There was evidence that sometimes, when an insured calls on a PSR to collect a repaired vehicle, the insured will express dissatisfaction with some minor aspect of the work, which the PSR will rectify at once.  In such a case, on a proper legal analysis, the PSR is again providing a service to NRMA Insurance pursuant to the repair contract, and NRMA Insurance is in turn providing that service to the insured pursuant to the insurance contract.

93                  The general law implies a contractual obligation on the insured to cooperate with NRMA Insurance in order to enable it to perform its obligations under the policy to repair or to pay to the insured the cost of doing so, or, perhaps more accurately, NRMA Insurance’s contractual obligation to repair the vehicle or to pay to the insured the cost of doing so does not become unconditional unless the insured has cooperated by making the vehicle available for repair or for a determination of the cost of repairing it (Mackay v Dick (1881) 6 App Cas 251; Stirling v Maitland (1864) 5 B & S 840 (122 ER 1043); and other cases referred to in Carter and Harland, Contract Law in Australia (4^th ed, 2002) at [1809] to [1811]). As noted at [63] and [64] above, there is, in any event, an express obligation of the insured to cooperate.  Accordingly, if NRMA Insurance decides to repair the vehicle, the insured is obliged to make the vehicle available to a repairer chosen by NRMA Insurance.  Similarly, if NRMA Insurance decides to pay to the insured the cost of repairing the vehicle, the insured is obliged to make the vehicle available so that the amount of the cost of repairs can be determined.

94                  My analysis above is consistent with the course of authority on s 47(7) of the Act.

95                  The facts of the present case are similar in some respects to those of Castlemaine Tooheys Ltd v Williams & Hodgson Transport Pty Ltd (1986) 162 CLR 395 (‘Castlemaine Tooheys’).  Castlemaine Tooheys (‘CT’) brewed beer in Brisbane.  CT offered liquor retailers in North Queensland the choice of collecting beer from one of its regional depots in that area or having the beer delivered from the brewery.  In the latter case, however, generally speaking CT insisted that it arrange the delivery by its ‘preferred carrier’, Queensland Railfast Express (‘QRX’), a firm not related to CT.  CT contracted with QRX for the cartage and was responsible to QRX for the payment of its charges.  The property in the beer did not pass until delivery by QRX at the retailer’s premises.

96                  Where the retailer elected to have the beer delivered to it from CT’s brewery, on CT’s invoices to the retailer, insurance and freight (which were included in the total price) were shown separately.  This was not so, however, if the retailer chose to collect the beer from a CT regional depot.  In that case the invoice price included an undifferentiated amount for the cost of transport from the brewery in Brisbane to the depot.  Because the annual licence fees payable by licensed victuallers under the Liquor Act 1912-1985 (Qld) were calculated on the gross amount paid or payable for liquor purchased, there was a commercial inducement for retailers to purchase direct from the CT brewery, since the insurance and freight charges were not regarded by the licensing authorities as forming part of the purchase price in that case.  (This commercial inducement may be compared to the earlier assessment and commencement of repair work in the case of PSRs in the present case – a consideration which may in fact operate as a commercial inducement for insureds to agree that their vehicles be repaired by PSRs.)

97                  A cartage contractor that wished to compete with QRX sought an injunction restraining CT from supplying beer on condition that the liquor retailer would accept transport services from QRX.  The cartage contractor relied on ss 47(1) and (6) of the Act.  Subsection 47(6) provided that a corporation engaged in the practice of exclusive dealing if it supplied, or offered to supply, goods or services on the condition that the person to whom the corporation supplied or offered or proposed to supply them, would acquire goods or services of a particular kind or description directly or indirectly from another person.  Although the provision was concerned with a supply or offer to supply ‘on the condition’ mentioned, and s 47(7), with which the present case is concerned, speaks of a ‘refusal to supply’ ‘for the reason that’ the person has not acquired or agreed to acquire goods or services from another person, there is no material difference between the two provisions for present purposes.

98                  Gibbs CJ stated (at 400-401) as follows:

‘It was submitted on behalf of the respondent that a retailer who bought beer which was delivered to the retailer’s premises by QRX acquired, in the sense of accepted, the services of QRX because the retailer received the benefit of those services even though there was no contractual arrangement between the retailer and QRX.  It was further contended that the services of QRX were forced on the retailer, since as a matter of commercial reality the retailer had to accept the terms offered by the appellant.  It was said that in these circumstances the appellant supplied the beer on condition that the retailer acquired the services of QRX.

The questions raised by these submissions are not without difficulty.  It is clear enough that it was not a condition of the supply of beer to retailers generally in North Queensland that it be delivered by QRX.  Retailers might, if they wished, purchase from the regional depots in North Queensland and some retailers did.  There were commercial advantages in buying the beer from Brisbane, but it was not right to say that in reality a retailer was forced to accept delivery by QRX.  However, when a retailer wished to have the beer delivered from the brewery, the appellant required, as a prerequisite to granting supply, that the appellant itself should arrange delivery.  The appellant supplied the beer on that condition.

However, the condition was not that the retailer should accept the services of QRX.  The condition was that the appellant should arrange the carriage of the beer and should deliver it to the retailer, not at the brewery, but at the retailer’s premises or some other place in North Queensland.  In other words the condition was that the appellant would deliver the beer which it sold to its destination in North Queensland.  It was of course clear that if the appellant had itself carried the beer there would have been no exclusive dealing within s 47.  The position was not altered when the appellant arranged for a third person to carry on its behalf.  In those circumstances the services were acquired by the appellant and not by the retailer.  No doubt in a loose sense the retailer received a benefit from the services, but in truth what the retailer acquired was the beer and not the services of the carrier.  Certainly there was no condition that it should acquire (even in the sense of accept) those services.’

99                  Wilson and Dawson JJ agreed with the Chief Justice on the present issue.  Brennan J’s reasoning, with which Deane J agreed, was generally similar.  His Honour stated (at 405-406):

‘The sale of beer by the brewer to the licensees is a supply by way of sale.  The supply by way of sale occurs at a licensee’s premises when the beer is delivered.  There is no supply by the brewer to a licensee at the brewery door in Milton.  When QRX picks up the beer at the brewery door, there is no sale; no appropriation of beer to an agreement for sale; no transfer of property in the beer.  QRX takes possession of the beer under its contract with the brewer; the brewer is the bailor, the carrier its bailee.

Once it is appreciated that the beer transported by QRX is supplied by the brewer to a licensee only at the licensee’s premises, it is impossible to suppose that the transport services rendered by QRX are acquired by the licensee.  The beer supplied at the licensed premises may be described as “delivered beer” to distinguish it from beer at the brewery door, but the delivery services supplied by QRX are acquired by the brewery, not by the licensee.  The licensee acquires only delivered beer.  It must be remembered that in the Act unless a contrary intention appears “a reference to the supply or acquisition of goods includes a reference to the supply or acquisition of goods together with … services …”: s 4c(c).  As the supply of delivered beer is a supply of goods and as “services” are defined to exclude “rights or benefits being the supply of goods” (s 4(1)), the supply of delivered beer cannot be “services”.  The licensee acquires no services, either from the brewer or from QRX.

Section 47(6) applies only when there are two contracts or arrangements: the first, between the corporation which supplies and the person who acquires goods or services; the second, which may be made directly or indirectly, between the person who acquires those goods or services and a third person.  Here there is no contract or arrangement, whether direct or indirect, between a licensee who acquires delivered beer from the brewer and QRX pursuant to which the licensee acquires delivery services from QRX.  From start to finish QRX’s contract or arrangement is with the brewer alone.  In so far as the licensee derives a benefit from the delivery of beer to his premises, he acquires that benefit from the brewer and not from QRX.  It is submitted that a person may acquire services simply by accepting them, and that a licensee accepts delivery services by QRX.  But a licensee does not accept any services from QRX; the licensee accepts the delivered beer supplied to him by the brewer.  If it were legitimate (and it is not) to distinguish between the beer supplied and the delivery services, nevertheless the licensee would accept both the beer and the delivery services from the brewer under the contract of sale of the beer.  The brewer does not seek to force licensees to accept the services of a carrier nominated by the brewer.  The brewer simply asserts its right to choose the carrier to deliver its beer to the point of sale at the licensee’s premises in discharge of its obligation to the licensee to deliver the beer there.  The position is no different from what it would be if the brewer’s own employees delivered the beer.’

100               The facts of Castlemaine Tooheys are, admittedly, not on all fours with those of the present case.  That case concerned two things: beer and transport services.  There was a supply of beer by way of sale upon delivery at the licensed premises.  The antecedent transport services were no concern of the retailer’s.  In the present case, however, only repair services are involved.  AARA does not dispute that NRMA Insurance acquires them from the PSR or ASR; it submits that the insured also acquires (accepts) them from the PSR or ASR.

101               I am not persuaded by the submission.  It is not pleaded that the individual contracts of insurance have been varied.  While NRMA Insurance allows its insured a choice, that choice is expressed to NRMA Insurance which then ‘decides’ pursuant to the policy condition in conformity with the choice the insured has made.  The insured then drops out of the picture; the provision and acceptance of the quote, the carrying out of the repairs and the billing and payment are all matters as between NRMA Insurance and the PSR or ASR alone. 

102               What the insured receives is the repaired vehicle.  Like the liquor retailer in Castlemaine Tooheys, the insured receives the benefit or result of services.  But if the vehicle has truly been ‘repaired’ the insured has no choice but to receive that benefit by taking delivery of the repaired vehicle.  There is no acceptance constituting an acquisition for the purposes of s 47(7) because there is no act of will on the part of the insured; no decision in favour of accepting and against rejecting.  There is nothing more than the outworking of a contract, the lawfulness of which has not been impugned.

103               Castlemaine Tooheys was followed by a Full Court of this Court in Paul Dainty Corporation Pty Ltd v National Tennis Centre Trust (1990) 94 ALR 225 (‘Paul Dainty’).  It is not necessary to give a detailed account of the facts, which are complex.  It suffices to say that the first appellant (‘PDC’), an organiser of tours of international concert artists to Australia, desired to hire the National Tennis Centre for that purpose, using the second appellant as its ticketing agency.  The relevant Victorian government instrumentality, the National Tennis Centre Trust (‘the Trust’), insisted that a hirer of the Centre use the services of the Victorian Arts Centre Trust (called ‘Bass’), the appointed ticketing agency for the Centre.

104               The Full Court held that under the standard form of contract in question, Bass was not providing services, even indirectly, to PDC.  Rather, it was providing them to the Trust, and, in effect, PDC had the choice of hiring the Centre subject to the standing arrangement that all tickets were sold by the Trust through the agency of Bass, or not hiring it at all.  In the same way, a PSR supplies repair services, not to the insured but to NRMA Insurance, which allows the insured the choice of agreeing to NRMA Insurance’s repairing his or her vehicle through the ‘agency’ of a PSR, or of not having NRMA Insurance repair the vehicle at all, but taking a ‘cash settlement’ instead.

105               Castlemaine Tooheys and Paul Dainty were applied by Drummond J in Australian Competition & Consumer Commission v IMB Group Pty Ltd (in liq) [2002] FCA 402 (‘ACCC v IMB’).  His Honour’s conclusion that no contravention of s 47(6) or (7) was established was upheld on appeal by the Full Court (Australian Competition & Consumer Commission v IMB Group Pty Ltd [2003] FCAFC 17) ‘essentially for the reasons provided by His Honour’ (at [91]).

106               Contravention of s 47(6) or, in the alternative, s 47(7) was pleaded.  It was alleged that there was an offer by the promoter of an investment scheme (‘IMB’) of services in the form of an investment opportunity, on condition that the offeree acquire services in the form of rights and benefits under an insurance policy, from a particular life insurance company (s 47(6)), or, in the alternative, that there was a refusal to supply the investment opportunity to a person for the reason that the person did not agree or continue to acquire such a policy from the life insurance company (s 47(7)).

107               Drummond J held that upon analysis of the evidence, the case was not one of an offer by IMB of the investment opportunity on condition that the offeree acquire a policy from the insurer.  Rather, it was a case of an offer by IMB on condition that the offeree acquire the policy ‘from IMB’ (at [85]).  IMB was selling the policies even though they were, of course, issued by the insurer.  His Honour said (also at [85]):

‘It was a critical element of the arrangement that offerees would not just acquire an investment policy from [a particular insurer], but would purchase that policy through one organisation and one organisation only, viz, IMB, the same organisation that was also offering the benefits of the opportunity to acquire shares and life membership in the future.’

108               His Honour continued (at [86]):

‘IMB required policies to be purchased through it not just so that IMB would get the commissions, but to enable it to make available in the future the two benefits it offered.  The commissions were necessary to enable IMB to advance the scheme to the stage where purchasers would be able to realise the opportunity IMB was offering them.  The commission income enabled IMB to recruit, through what became its elaborate sales organisation, more and more purchasers of policies and thus to increase the aggregate loan or security value IMB needed to fund implementation of the scheme.  IMB also had to be the supplier of the policies to purchasers to give it the opportunity to ensure that purchasers would keep them up and would elect to make them available to the scheme as development proceeded: a policy owner was under no enforceable obligation to do either.  But a voluntary willingness to do so was essential to fund implementation of the scheme.’

109               In Castlemaine Tooheys, it was QRX which in fact transported the beer from CT’s brewery in Brisbane to the retailers’ premises in North Queensland; in Paul Dainty it was Bass which in fact provided the ticketing; and in IMB it was the life insurance company which in fact issued the policies.  Yet it was held that for the purposes of s 47 of the Act there was not an acquisition of services by the liquor retailers from QRX, by PDC from Bass, or by the investors from the life insurance company.  Rather, it was held that, for those purposes, CT acquired the transport services from QRX, and the liquor retailers received the benefit of them; the Trust acquired the ticketing services from Bass, and PDC received the benefit of them; and the investors acquired the insurance policies from IMB.

110               In the same way, on the evidence before the Court in the present case, the insureds do not, for the purposes of s 47 of the Act, acquire repair services from the PSRs; they acquire them from NRMA Insurance.

111               AARA submits that NRMA Insurance’s submission founded upon Castlemaine Tooheys has been ‘exploded’ in Visy Paper Pty Ltd v Australian Competition and Consumer Commission [2003] HCA 59.  AARA submits that NRMA Insurance’s submission depends too heavily on its contractual arrangements (the terms of the motor vehicle insurance policy, of the PSR Agreement, and of the ASR Agreement), although AARA disclaims any contention that those contractual arrangements are a ‘sham’ or ‘artifice’.  It suffices to say that I do not think the line of authority referred to above has been rendered inapplicable to my task by anything said in the Visy Paper case, or that there is any other reason why NRMA Insurance’s contractual arrangements should not be given effect according to their terms.

112               It is not necessary or profitable to decide whether it is better to say that NRMA Insurance supplies to its insureds a ‘repaired vehicle’ (goods different from the pre-repair damaged vehicle) or repairs of a vehicle (services and possibly goods in the form of replacement parts). On any reckoning, just as in Castlemaine Tooheys whatever was supplied to the retailers (‘delivered beer’ or ‘beer and delivery services’) was supplied to them by CT, not by QRX, so, in the present case, whatever is supplied to the insureds is supplied to them by NRMA Insurance, not by the PSRs or ASRs.

113               As noted already, AARA, like the applicant in Castlemaine Tooheys, relies on the definition of ‘acquire’ in s 4 of the Act, as including ‘accept’ (see [4] above).  But there is no question of an insured accepting the repair services of a PSR in any sense relevant to s 47(7): it is NRMA Insurance that does so.  The insured is already contractually obliged, by reason of the terms of the policy, to receive back the vehicle once it has been ‘repaired’ by NRMA Insurance.  The insured may indicate that he or she ‘accepts’ that the repairs have been satisfactorily carried out or finds them ‘acceptable’, but that is a different matter.

114               AARA also relies on the fact that insureds pay the amount of the insurance excess to PSRs.  But cl 41.1(h) of the PSR Agreement (set out at [69] above) shows that the PSR collects the amount as agent for NRMA Insurance, and that any application of the amount collected towards the cost of the repairs, is in pro tanto discharge of NRMA Insurance’s indebtedness to the PSR.  As Mr Pemberton said in cross-examination:

‘…they [the repairers] collect them [the excesses] on our [NRMA Insurance’s] behalf and that’s deducted from our final payment.’

Mr Van Der Weide’s evidence was to the same effect (see [32]) above).

115               It makes no difference whether the insured’s cheque for the amount of the excess is made out in favour of NRMA Insurance or the PSR.

116               For the above reasons, the present application must be dismissed.  I will, however, address, perhaps more briefly than I would otherwise have done, other issues raised.

Does NRMA Insurance supply ‘services’ to its insureds?

117               AARA pleads that NRMA Insurance supplies the ‘services’ listed at [5] above, but refuses to supply them for a reason not countenanced by the Act.

118               NRMA Insurance submits that with respect to:

(i)                  timely assessment of the insured’s claim,

(ii)                timely authorisation to proceed with repairs, and

(iii)               the opportunity to secure the benefit of an early release of the insured’s motor vehicle as a result of (i) or (ii) above,

there are no services that it refuses to supply to its insureds, but simply consequences of:

·        the operational procedures which NRMA Insurance has in place with repairers, and

·        the repair option selected by the insured.

119               The four forms of assessment of quotes for repairs were described at [20] above.  The method of assessment used, and therefore the timeliness of assessment of a claim (and, therefore, except in the case of self-assessment, of authorisation to proceed with repairs), depends largely on:

(a)        whether the repairer selected to undertake the repairs is a PSR, an ASR, or an NAR; and

(b)        whether, if a PSR or ASR, it participates in the ORM system;

(c)        whether, if an ASR, it has entered into a Repairer Performance Plan; and

(d)        whether, if a PSR, or an ASR which has entered into a Repairer Performance Plan, it is rated gold, silver, bronze or red.

120               It is necessary, when considering NRMA Insurance’s present submission, not to confuse it with the one next noted below, that is, that there is no refusal to supply.

121               I do not accept NRMA Insurance’s present submission.  Section 4 of the Act defines ‘services’, relevantly as follows: 

‘“services” includes any rights (including rights in relation to, and interests in, real or personal property), benefits, privileges or facilities that are, or are to be, provided, granted or conferred in trade or commerce, and without limiting the generality of the foregoing, includes the rights, benefits, privileges or facilities that are, or are to be, provided, granted or conferred under:

(a)       a contract for or in relation to:

(i)                 the performance of work (including work of a professional nature), whether with or without the supply of goods;

(ii)               the provision of, or the use or enjoyment of facilities for, amusement, entertainment, recreation or instruction; or

(iii)             the conferring of rights, benefits or privileges for which remuneration is payable in the form of a royalty, tribute, levy or similar exaction;

(b)       a contract of insurance; …’

122               There are various ways of conceiving of the services NRMA Insurance supplies.  There is, in terms of the definition, the ‘contract of insurance’ itself.  There is the service of ‘repairing’ in performance of the insurance obligation.  On one view, timely assessment and timely authorisation are aspects of the service of repairing which is supplied to the insured.  This view of them is not inconsistent with their being in themselves ‘services’ that NRMA Insurance supplies to the insured.  Another view is that they are services NRMA Insurance supplies to the repairer in preparation for the supply of the repair services.  A third view is that they are self-serving administrative activities in which NRMA Insurance engages in order to put itself in a position to perform its contractual obligation to repair or to pay the cost of repairing.

123               NRMA Insurance certainly holds out for its insureds timely assessment and timely authorisation as benefits which they will enjoy if they opt for NRMA Insurance’s repairing the vehicle through a PSR.  Of the three parties involved, the one which has an obvious and direct interest in timeliness is the insured: the insured desires to have the repaired vehicle available as soon as possible  The repairer’s and NRMA Insurance’s interests in timeliness are collateral and dependent: they have an interest in the insured’s desire being satisfied.

124               In my opinion, contrary to NRMA Insurance’s submission, the three benefits described at [118] above are services.  I am content to assume, without deciding, that NRMA Insurance supplies them to the insured (NRMA Insurance did not submit that if they were ‘services’, it did not supply them to the insureds). 

Is there a refusal to supply?

125               In my opinion NRMA Insurance does not refuse to supply any of the services listed as (i) to (iv) in [5] above.  (I address the towing services referred to in (v) and (vi) in [5] above separately below).  It does not refuse to supply those services, even in the sense of ‘make it known that those services will not be supplied’ (see the definition of ‘refusing to do an act’ in s 4(2)(c)(ii) of the Act set out at [4] above).

126               In return for payment of a premium, NRMA Insurance supplies, and the insured acquires, a bundle of contractual rights.  Relevantly, one right is a right to have NRMA Insurance either (at NRMA Insurance’s option) repair the vehicle or pay to the insured the cost of repairing it.  Although the insurance policy does not oblige it to do so, NRMA Insurance allows the insured to choose between the two.  There is a régime according to which NRMA Insurance ‘repairs’ the vehicle, and a régime according to which it pays the insured the ‘cost of repairing’ the vehicle.  AARA does not suggest that either of the two régimes does not satisfy the contractual obligation.  If an insured does not acquire a benefit which is an aspect of the repair régime, it is because the insured has elected in favour of the payment régime, not because NRMA Insurance has refused to supply any or all of the benefits of the repair régime.  Indeed, NRMA Insurance recommends the repair régime.  

127               Consumers are offered choices between services every day.  Competing services will have comparable pros and cons.  It would be a misuse of language to say that the supplier refuses to supply a benefit, only because it is associated with one of the services on offer and missing from an alternative service on offer.

128               There is no evidence that NRMA Insurance refuses to pay for towing services for the reason that the insured has not agreed to acquire services from a particular class of repairer.  The insurance policy provision in relation to towing was described at [61] above, and Mr Pemberton’s evidence on the matter at [29] above.  So far as the evidence reveals, NRMA Insurance pays for towing of a vehicle that cannot be driven, irrespective of whether the insured decides that that the repairs are to be carried out by a PSR, ASR or NAR.  AARA’s submissions did not refer to any evidence going to establish a refusal (even in the extended sense) of towing services.

‘for the reason that’

129               AARA bears the onus of proving that NRMA Insurance refuses the timely assessment and timely authorisation services mentioned ‘for the reason that’ its insureds do not agree to acquire services (repairs) from PSRs.  It is necessary in order to consider whether AARA has discharged that onus, to assume contrary to earlier conclusions of mine, that there is a question of the insureds (as distinct from NRMA Insurance) acquiring repairs from PSRs and that NRMA Insurance ‘refuses’ to supply to its insureds the services mentioned.

130               NRMA Insurance submits that:

·         the words ‘for the reason that’ require analysis of NRMA Insurance’s motivation for refusing to supply the services; 

·         subsection 84(1) of the Act has no application to this proceeding, in which s 47 of the Act allegedly applies to NRMA Insurance’s conduct;

·         therefore, general law principles apply to identify the persons whose motivation is to be attributed to NRMA Insurance;

·         the evidence shows that when he arrived at IMA, Mr Pemberton was given the task of further developing NRMA Insurance’s repairer programs, and in formulating the PSR scheme, he was motivated by a desire;

§         to reduce repair costs (to NRMA Insurance);

§         to improve customer service;

§         to improve repair quality; and

·         it is for these reasons that NRMA Insurance refuses to supply the services mentioned.

131               I do not accept NRMA Insurance’s submission.  In my opinion, s 47(7) does not require consideration to be given to ‘the ultimate and final end’ sought to be attained by the supplier, or ‘the [supplier’s] aim beyond’, to the exclusion of ‘what led immediately and directly to the act done’: The Merchants’ Association of New Zealand (Inc) v The King (1912) 32 NZLR 1233 at 1255-1256 per Stout CJ (affirmed on appeal at (1913) 32 NZLR 1259), approved in Mikasa (NSW) Pty Ltd v Festival Stores (1972) 127 CLR 617 at 658 per Stephen J.  As between NRMA Insurance and the insured, the reason NRMA Insurance supposedly refuses to supply a timely assessment of his or her claim and a timely authorisation to proceed with repairs, is that the insured will not agree that the repairs be effected by a PSR.  If the insured will so agree, NRMA Insurance will provide those services.  It is the fact that the insured will not agree to acquire repair services from a PSR that leads ‘immediately and directly’ to NRMA Insurance’s refusal to supply the timely assessment and timely authorisation of services.  The kind of conduct against which s 47(7) is directed is not altered according to whether the supplier’s ultimate object may be thought to be acceptable

132               NRMA Insurance also submits that the structure and nature of the PSR scheme demonstrate that NRMA Insurance does not desire that its insureds acquire repair services from PSRs.  I have held earlier that they do not, and that it is NRMA Insurance which acquires those services from PSRs.  But for present purposes, it is necessary to assume, contrary to that conclusion, that for the purposes of s 47(7) the insureds do acquire repair services from PSRs.

133               On that assumption, NRMA Insurance does desire that its insureds acquire repair services from PSRs.  Upon analysis NRMA Insurance’s present submission takes matters no further than its principal submission (discussed at [88] to [116] above) on which it has succeeded.

Refusing to supply services in the form of making it known that they will not be supplied

134               I need not deal with AARA’s submission that it is irrelevant that NRMA Insurance does in fact supply the services which, it is alleged, it ‘refuses’ to supply.  The reason that I need not do so is that on the assumption, in favour of AARA, that for the purposes of ss 47(7) and 4(2)(c) of the Act, a corporation can make it known to a person that goods or services will not be supplied to the person, where, in the event, the corporation does in fact supply them to the person, the present application must be dismissed for the reasons which I have given above.

Motion

135               Early on the first day of the hearing AARA filed in court, by leave, a notice of motion seeking a judgment on admissions pursuant to O18 r 4 of the Federal Court Rules.  The admissions were said to be contained in Mr Pemberton’s affidavit, which, at that time, had not been read. 

136               I deferred ruling on the motion, indicating that I would deal with it as part of my final reasons for judgment.  It will be clear from my reasoning above, that the motion must be dismissed. 

Misleading or deceptive conduct

137               The Pleading does not assert that NRMA Insurance contravened s 52 or any other provision in Pt V of the Act.  Much evidence led by AARA appeared to be directed to support an allegation that NRMA Insurance had in trade or commence, through the Teleclaims Consultants, engaged in conduct that was misleading or deceptive. 

138               In view of the Pleading, I am not required to determine whether NRMA Insurance engaged in conduct that was misleading or deceptive, and it would be improper for me to embark upon a consideration of that question.

CONCLUSION

139               For the above reasons, the motion and the application should be dismissed with costs.

I certify that the preceding one hundred and thirty-nine (139) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Lindgren.

Associate:

Dated:              2 June 2004

Counsel for the applicant:	Mr B Levet and Dr R O’Hair
Solicitor for the applicant:	Peter R Glover
Counsel for the respondent:	Mr F M Douglas QC and Mr S T White
Solicitors for the respondent:	Blake Dawson Waldron
Date of Hearing:	3, 4, 5 and 6 February, 15 and 25 March, 5 and 14 April, 5 and 13 May 2004.
Date of Judgment:	2 June 2004

ANNEXURE

           (infelicities of expression not corrected)

1)	Consultant:		They [JS Craig] are not an NRMA preferred smash repairer, but they are one that we certainly authorise repair work with.
	Caller:		Good.
	Consultant:		They are an on line repairer as well which means we shouldn’t need to do a digital assessment of the damage.  They should just be able to take additional pictures of the damage and send it through to our assessing centre so we can authorise repair work for you, you will still get written lifetime guarantee on their repair work as well and that’s us putting our money where our mouth is.  So what I’ll do is allocate them onto repair work for you and send them over the request for quote.
	Caller:		So what do I do now?
	Consultant:		All you then need to do is get in contact with them to let them know that the claim has been lodged and they will arrange a time for you to take the car up so that they can do the digital pictures of it, they should be able to look at starting giving you an indication of how long its going to take, give you a start and end date, so they can book you in on the basis that we will authorise repair work quickly for you.
2)	Consultant:		I’ll send the details of your claim straight through to that repairer now for you [name of caller], if that’s okay by you.  He should receive that information within half an hour.  It’s JS Craig, is it?
	Caller:		Yes.
	Consultant:		JS Craig.  He’ll now arrange the assessment of the vehicle if he hasn’t already done so.  And then once he gets authority, he’ll be able to start with repairs to the vehicle.
	Caller:		Excellent.
3)	Caller:		Now I’ve taken it into JS Craig next door to me.  JS Craig.
	Consultant:		Yep.
	Caller:		So I’m going to leave it with them and they will give me a car.
	Consultant:		Whereabouts are they?
	Caller:		Artarmon, where I work.
	Consultant:		Oh okay, so you would probably already know that they are not a preferred repairer?
	Caller:		Yes, they are.  Who told you?
	Consultant:		No, they are not.  They are an associated but not a preferred.
	Caller:		Oh, well I’m very happy with their work.  I had a car fixed with a preferred one recently and they were terrible.
	Consultant:		Oh, okay.  That’s not very good.  Well look its up to you so I mean if you are happy to stay with them that’s fine, I just need to send them all the details at the end of the claim.  Okay?
	Caller:		Well can I have a claim number to take it into them?
	Consultant:		You can, but we will still send them the details.
			………………………………………………………………………..
	Consultant:		So this particular repairer you have used him the past have you?
	Caller:		Yes.
	Consultant:		Okay.  They’re in […] Street.
	Caller:		Yep.  I work in [same] Street.
	Consultant:		Sure.  No worries.  Just bear with me I am just going to give you that claim number.  And then I’ll send all the information across to them for you.
4)	Consultant:		You obviously have a choice of where you go.  That particular repairer isn’t one of our associate repairers.  They’re not actually one of our preferred repairers.  Basically normally what happens is the computer allocates a repairer to you in your area that is available and also preferred that they can give you a warranty.
	Caller:		OK.  The tow driver sort of said that they were.
	Consultant:		No, they’re an associate, they’re not a preferred.
5)	Consultant:		They [JS Craig] are approved.  But they’re not a preferred.  I mean.  It’s up to you.  I’m …..I can’t force you to take your car to here or there.  It’s where you want to get your car repaired.
	Caller:		So, if NRMA trusts them then I leave it here?  But I want to hear from you that it’s as good as a preferred one.
	Consultant:		Ok.  Yeah.  Well you get a lifetime guarantee for the work that they do do to the vehicle.
	Caller:		Yes.
	Consultant:		However with preferred smash repairers you do get priority service.  Um.  Whereas that’s something that we don’t offer with the associate repairers.
	Caller:		My request to them is to have the car fixed by the end of this week on Friday.  I don’t know if it takes a week to do it.  And, I …
	Consultant:		Well.  It’s up to you.  If you’re happy to use that repairer then we can leave you with that repairer.
	Caller:		Look I picked them up off the yellow pages.  I, I never knew them before.  I follow your advice.  Let me do the right thing.
	Consultant:		OK.
	Caller:		I prefer an NRMA preferred….
	Consultant:		You’d prefer an NRMA preferred smash repairer?  OK.  You’re in [name of first suburb].  Was that correct?
	Caller:		Yes.
	Consultant:		Alright.  Let’s have a look and see if there’s any there.  I don’t think so.
	Caller:		There’s nothing in [name of first suburb], but [name of second suburb] will do.  Or the closest.
	Consultant:		Nothing in [name of first suburb].  Um.  [Name of third suburb]  There’s a couple of preferred repairers in [name of third suburb].
6)	Consultant:		And I can also give you the name and number of one of our NRMA repairers to get you back on the road as soon as possible.  You did mention you’ve already taken…
	Caller:		…Yeah. I’ve got my own. Panel beater.
	Consultant:		What’s the name of the repairer?
	Caller:		Um. It’s [name of repairer]. I don’t think they’re NRMA but I have used them before through NRMA. Last year.
	Consultant:		Yeah.
	Caller:		[Name of repairer] I think they’re called.
	Consultant:		Whereabout, whereabouts are they?
	Caller:		[Address]
	Consultant:		Alright.  I’ll let you know they’re not one of our preferred repairers they are what’s called an associated repairer though.
	Caller:		Yep.
	Consultant:		Which means that the difference between preferred and associated is with the preferred you’ll get a life time guarantee on all repairs they do.
	Caller:		Um.
	Consultant:		You’ll also get that with the associated.  But with a preferred repairer you’ll also get priority service which means you get your car back on the road a little bit quicker.
	Caller:		I’d still prefer to use this one as I do know them personally.
7)	Consultant:		You need to decide what you want to do.  I can give you the name of a preferred repairer in [name of suburb] where you will get life time guarantee and we can get priority booking.  If you want to speak to your mechanic and see where the car is as well, then you can give us a call back and let us know.  Did you want me to give you the name of a repairer that I’ve got here for you as well?
	Caller:		Yes please.
	Consultant:		They’re called [name of repairer] and they’re in [address].  Did you want their phone number?
	Caller:		Yes.
	Consultant:		It is [telephone number].  So you need to decide which repairer you want and then you need to give us a call back because we need to send the paperwork to the repairer.  Depending on the repairer that your mechanic has advised you, if you want to go that repairer, depending on what relationship they are with the NRMA, depends on what benefits you get with the NRMA.  So if they do work for the NRMA and they are a preferred repairer, then you get priority service and you get life time warranty.  If they do work for the NRMA but they are not a preferred repairer, then you won’t get the priority booking so it will take longer for your car repairs but you will get the life time warranty and if they don’t do work with us at all then you don’t get any benefits.  Do you understand all of that?
	Caller:		Sort of.
	Consultant:		Well it depends what relationship they have with us, whether they are with us whether they are an NRMA repairer or not.
	Caller:		I think he is but I’m not sure about the name.
	Consultant:		You need to find everything out and give us a call back.
8)	Consultant:		Okay.  And would you like me to help you find an NRMA preferred smash repairer or?
	Caller:		Yeah, that would be good.   ………………………………………………………………………..
	Consultant:		And they’re an NRMA preferred which means they offer you a lifetime guarantee and quality inspection after repairs.
	Caller:		Mmm.
	Consultant:		I’ll give you their phone number.
	Caller:		Mmm.
9)	Consultant:		OK.  Look they’re a non accredited provider.
	Caller:		Yeah.
	Consultant:		OK.  So what that means is that um the repairs that they do for your vehicle we don’t guarantee that at all.
	Caller:		Uh. Uh.
	Consultant:		OK.  And we don’t take responsibility if there is, if there is any fault in the repairs.
	Caller:		Ah.  You’re not responsible for any fault or…
	Consultant:		For the repairs.  That’s correct because [name of repairers] Smash Repairs are non-accredited.
	Caller:		Yeah.  But this is a good…because my friend he ah, he fixes the car, he is a good man.  He fixes it.
	Consultant:		Yeah.  I understand that but I just need to let you know the conditions about using a non accredited provider.
	Caller:		Uh Uh.
	Consultant:		OK.  So we don’t guarantee you for the repairs to the vehicle.
	Caller:		Yes.
	Consultant:		OK.  And also what we may need to do is to assess the vehicle to ensure that it still meets manufacturer’s standards.
	Caller:		Yes.
	Consultant:		OK.  And if it doesn’t meet manufacturer’s standards we may decide to cancel the um, this policy also.
	Caller:		Ah.  What?  Well I can’t go to the … Repair… (indecipherable) to take the car there?
	Consultant:		You can if you want.  I’m not stopping you.  But….
	Caller:		Yeah, but.
	Consultant:		We just don’t guarantee the repairs.
	Caller:		Well.  If I’m not happy we talking, we talk with the.  Don’t worry about this warranty because I trust the garage.
	Consultant:		OK.  So you’re still happy to use them.  You still want to send it to them?
	Caller:		Yeah I’d like to send it to them.
	Consultant:		OK.  Just bear with me for one moment I’ll send the paperwork off to them now.
10)	Consultant:		OK.  Now I’m going to give you a claim number.  Can I assist you with the name of a repairer?
	Caller:		Yes.  I don’t think, I’ve not had any experience with this before.  So, I’d appreciate any help you can give me.
			…………………………………………………………………………
	Consultant:		I can give you the name of a few if you like.  But then you’ll need to let us know which repairer you would like to use so that we can forward a notification through to them when you’re ready.
	Caller:		Oh. OK.
	Consultant:		They are all our preferred smash repairers.  So we’ll offer you a lifetime guarantee on all the repairs as well as a priority service and there’s no need for any additional quotes or assessments.
	Caller:		Lifetime guarantee did you say?
	Consultant:		Yes.
	Caller:		And what was the other thing you said that they offered?
	Consultant:		A priority service.  So there’s.  The assessment of your vehicle will be treated as a priority.
	Caller:		Right.  OK.  So I’ll have to let you know who I choose.  Um probably someone who’s close to a train station at [name of suburb].
	Consultant:		Well I can’t tell you that.  I can just give you the names of a few.  You can sort of investigate for yourself.
11)	Consultant:		OK.  And then we can also help you whatever suburb you’d like with a choice of NRMA preferred repairs where we will prioritise the repairs and warranty for the life of the…
	Caller:		I’ve got a preferred um.
	Consultant:		That’s not a problem.  What name?
	Caller:		Ah.  [name of repairer]
	Consultant:		At [address of repairer].
	Caller:		Yes.  [address of repairer]
	Consultant:		They’re not actually one of the preferred ones but they are associated to NRMA which is fine.
	Caller:		Yes.
	Consultant:		The difference being in with a preferred one we can sit here and say priority repairs.  With associated there’s possible inspection possible delay if there is.  That is something you will actually have to speak to that repairer to see whether we do or do not have to assess his jobs before he starts.
	Caller:		Oh OK.
	Consultant:		OK.  That’s the only difference.  You will still get your warranty for the life of the vehicle because they are still an NRMA repairer.
12)		Consultant:	So you’ve used this particular repairer before, have you?
		Caller:	Yes, I’ve very happy with him.
		Consultant:	OK.  He’s not a preferred repairer.  So the choice is still yours.  I’ll just explain, with a preferred repairer what we do is send the information through to them and they basically handled the whole matter for you.  They give you your priority service, they get you back on the road as soon as possible, but it is your decision.   Now, that scenario may change differently the way they assess the vehicle and what, what will happen, but the particular repairer can tell you what will happen.  So if you wish we will send the information through to him and then he can…
		Caller:	Yes, to [name of non-PSR used by caller previously].
		Consultant:	…he can make the arrangements.
13)		Consultant:	Ok.  They’re a non-accredited repairer.
		Caller:	Ah hmm.
		Consultant:	We don’t authorise repairs with them.  You can still go to them but we only cash settle you the fair and reasonable amount for the repairs.
		Caller:	Sorry, what do you mean?
		Consultant:	OK.  So we cash settle you with a non-accredited repairer…
		Caller:	Ah hmm, ah hmm.
		Consultant:	…and only the fair and reasonable amount.
		Caller:	Ah hmm.  So like you do pay, pay to them, isn’t it?  You send us the money.  I don’t understand, what do you mean?
		Consultant:	OK.  What happens is…
		Caller:	Ah hmm.
		Consultant:	…we cash settle you the fair and reasonable amount, so we give you…
		Caller:	Ah hmm.
		Consultant:	…to pay them but only the fair and reasonable cost.
		Caller:	Yeah, yeah.
			………………………………………………………………………..
		Caller:	So you mean you don’t deal with this one, is it?
		Consultant:	No, we don’t.
		Caller:	Right.
		Consultant:	But you can still go there, that’s fine.
		Caller:	Ah hmm.  All right.
		Consultant:	It’s just we don’t give any guarantees with them.
			………………………………………………………………………..
		Consultant:	You can tell your dad that we cash settle the fair and reasonable amount only.
		Caller:	Ah hmm, ah hmm.
		Consultant:	OK.  With an associate repairer…
		Caller:	Ah hmm.
		Consultant:	…they give a guarantee on the work.
		Caller:	Yeah.
		Consultant:	OK but we can’t guarantee priority service with them because they have to wait for a written authorisation to repair with us.
		Caller:	Ah hmm, ah hmm.
		Consultant:	And with a preferred smash repairer..
		Caller:	Yeah.
		Consultant:	..they give you priority service..
		Caller:	Ah hmm.
		Consultant:	…get you back on the road ASAP.
		Caller:	Ah hmm.
		Consultant:	They give you a written lifetime guarantee on the work.
		Caller:	OK then.
14)		Consultant:	Do you know the name of your repairer?
		Caller:	Ah. Yes.  Hang on.  Ah.  They’re called [name of repairer].
		Consultant:	Yep.  Bear with me for a second I’ll quickly have a look.  I’ll just type some notes.  OK.
		Caller:	‘Cause we had a lot of problems when, going back quite a few years ago.  The NRMA nearly killed our two daughters and our son-in-law.
		Consultant:	Oh.  That’s no good.
		Caller:	By us listening to the NRMA.
		Consultant:	With a repairer?
		Caller:	Pardon.
		Consultant:	Someone repaired your car as well?
		Caller:	Oh. Well.  Who recommended.  Well NRMA recommended these people.
		Consultant:	Alright.
		Caller:	And then a couple of months later they were on the black list.
		Consultant:	Oh.
		Caller:	And yet the NRMA fully recommended how good they were.
		Consultant:	Right.  OK.  Sorry about that.  OK.  Won’t be long.
		Caller:	I don’t mind.  ‘Cause my kids are alive now.
		Consultant:	Yes.  That’s good to hear.  Ah.  [Name of repairer] are they located at [address]?
		Caller:	Yeah.  [name of suburb] yes.
		Consultant:	[Name of suburb].  OK.  [name of caller], just like to let you know.
		Caller:	Mm.
		Consultant:	This repairer that you have chosen.
		Caller:	Yes.
		Consultant:	Is not one of our preferred repairers.
		Caller:	Yes I know but he’s the best.
		Consultant:	OK and we do not authorise repairs with him.
		Caller:	Yes.
		Consultant:	OK.  Which means let me just read this out to you [addressing caller by first name].
		Caller:	Yeah I know all that.
		Consultant:	OK then.  You know you have to assume full responsibility for the quality.
		Caller:	Yes I know.  ‘Cause I know they do A1 work.  I would never ever go to who NRMA recommends.
		Consultant:	OK then.
		Caller:	Because they don’t recommend you to the best.  They recommend you to the cheapest.
		Consultant:	Alright then.  OK.  No problem.
		Caller:	Yeah.
		Consultant:	Just like to confirm again. [address of repairer]
		Caller:	Yes that’s it.  Wonderful.
		Consultant:	OK.  I won’t be long.  I’ll forward all the details of your claim.
		Caller:	Mm.
		Consultant:	We will require at least one additional quotation from a different repairer [name of caller] nominated by the NRMA.  And we will cash settle you only the fair and reasonable amount for the repairs as …by the assessor.
		Caller:	Mm.
		Consultant:	And [addressing caller by first name] as well.
		Caller:	Why do you want another quote?
		Consultant:	OK.  They will just have a look at, um, they will get another quote.  That’s the policy of the NRMA.
		Caller:	Well who’s going to get a quote, the NR…  Well this is something new.
		Consultant:	Mm.  Normally because as I said we do not authorise repairs with them.
		Caller:	Yes.  But.  But, But.  The NRMA doesn’t care about their members.  NRMA only worries about the pocket.  The money.
		Consultant:	Mm.
		Caller:	Where as I look at lies.
		Consultant:	I can understand your point there.  OK.  I’m just I’m reading out to you the policy [addressing caller by first name].
		Caller:	Yes.  So do you want me to get another quote from another panel beater?
		Consultant:	Normally, our assessors will organise that for you.   …
		Caller:	Oh.  It doesn’t matter even if I pay more I wouldn’t go elsewhere ‘cause I know who NRMA…
		Consultant:	Yes I can understand.  Yes I can understand your experience.  And as well just to let you know we may cancel your insurance policy if the car is not repaired to a satisfactory standard with…
		Caller:	Oh.  They never have that problem.