Elema v Pacific MMI Insurance Ltd [2011] PGSC 9; SC1114 (22 July 2011)

SC1114

PAPUA NEW GUINEA
IN THE SUPREME COURT OF JUSTICE

SCM NO 7 0F 2010

SALAMO ELEMA, INSURANCE COMMISSIONER
Appellant

V

PACIFIC MMI INSURANCE LIMITED
Respondent

Waigani: Salika DCJ, Cannings J, Gabi J
2011: 29 June, 22 July

STATUTES – Insurance Act – whether Insurance Commissioner can invoke Section 34 (powers of inspection and investigation) to require an insurer to provide information, files and documents for the purpose of investigating a complaint by a customer of the insurer as to rejection of insurance claim

STATUTES – statutory interpretation – literal meaning of words used in statutory provision – examination of purpose of provision, given its context in a statutory scheme.

The appellant, the Insurance Commissioner, relying on Section 34 of the Insurance Act, wrote to the respondent, a licensed insurer, requiring it to explain why it had rejected an insurance claim (the insured having complained to the Commissioner about the rejection) and to provide information and documents regarding the rejected claim and its entire file since inception of the cover. The respondent refused to comply and applied for judicial review of the Commissioner's decision to impose the requirements on the ground that Section 34 did not authorise him to impose such requirements in regard to a complaint by an insured. The National Court granted judicial review and held that the Commissioner had acted unlawfully. The Commissioner appealed to the Supreme Court.

Held:

(1) When the question arises as to whether power conferred by a statutory provision has been lawfully exercised the court should first examine whether the exercise of power falls within the literal meaning of the words of the statutory provision; and if it does, the court should then examine whether the purpose of that provision, given its context in the statutory scheme of which it forms part, qualifies the literal meaning of the words used.

(2) If Section 34 is read literally and in isolation it appears to authorise the decision of the Commissioner, but given the purpose of the provision, evident from its context in the whole of the Insurance Act, particularly in light of the complaints and dispute resolution procedure in Part IX of the Act, the literal meaning of the words is heavily qualified: the power in Section 34 is not to be exercised for the purpose of inquiring into complaints from insured persons or resolving disputes between them and insurers.

(3) The National Court did not err in law in deciding that the Commissioner acted beyond the power conferred by Section 34 and the appeal was accordingly dismissed.

Cases cited

The following cases are cited in the judgment:

Gari Baki v Allan Kopi (2008) N4023
Pacific MMI Insurance Ltd v Salamo Elema, Insurance Commissioner (2010) N4032
The State v James Yali (2005) N2932

APPEAL

This was an appeal against a decision of the National Court to grant judicial review of a decision of the Insurance Commissioner under the Insurance Act 1995.

Counsel

J A Griffin QC & D H Katter, for the appellant
A Mana, for the respondent

22 July, 2011

1. BY THE COURT: This is an appeal by the Insurance Commissioner against a decision of the National Court, constituted by the Chief Justice, Sir Salamo Injia.

2. The National Court granted judicial review in favour of the respondent, Pacific MMI Insurance Ltd, of a decision of the Commissioner, relying on Section 34 of the Insurance Act 1995, to require MMI, a licensed insurer, to explain why it had rejected a K20 million insurance claim by Hanjung Power Company Ltd (the insured having complained to the Commissioner about the rejection) and to provide information and documents regarding the rejected claim and its entire file since inception of the cover. The respondent refused to comply and applied for judicial review of the Commissioner's decision to impose the requirements on the ground that Section 34 did not authorise him to impose such requirements in regard to a complaint by an insured. The National Court granted judicial review and declared that the Commissioner had acted unlawfully and granted an injunction against the Commissioner (Pacific MMI Insurance Ltd v Salamo Elema, Insurance Commissioner (2010) N4032).

3. The Commissioner has appealed against the whole of the judgment on four grounds, set out as grounds 2.1 to 2.4 in the notice of appeal. We have for the sake of convenience renumbered them as grounds 1 to 4 and will address each one in turn. It is argued that the trial judge erred in law in four respects.

GROUND 1: ERROR OF LAW BY HOLDING THAT SECTION 34 DOES NOT EMPOWER THE COMMISSIONER TO DIRECT A LICENSED INSURER TO PROVIDE INFORMATION REGARDING A DISPUTED INSURANCE CLAIM

4. The trial judge concluded that for a number of reasons Section 34 did not allow the Commissioner to direct a licensed insurer to provide information regarding a disputed insurance claim. First, Section 34 only applies where the Commissioner investigates persons who are not licensed insurers or who are suspected of conducting insurance business without a licence; and in this case it was clear that MMI was a licensed insurer. Secondly, the relationship between an insurer and an insured is governed by the contract between them, and any modification of that relationship – such as requiring the insurer to disclose information regarding the contract to the Commissioner – must be expressly provided for by statute; however, Section 34 does not expressly provide for the Commissioner to demand information from an insurer regarding a particular contract. Thirdly, Part IX of the Insurance Act – headed 'Complaints Procedures and Dispute Resolution' – provides an exclusive procedure for resolving the type of dispute that arose between Hanjung and MMI, which required the dispute to be first registered with the Commissioner and then referred to the Insurance Complaints Tribunal for determination; and that procedure was not followed in this case.

5. Mr Griffin, for the Commissioner, submitted that his Honour's reasoning is flawed and his interpretation of Section 34 untenable. Neither the words of Section 34 nor its position in Part V of the Act – Audit, Returns, Inspection etc – support a construction that its operation is confined to insurers which are unlicensed or those suspected of carrying on insurance business without a licence, it was submitted. The words of Section 34, particularly in light of Section 35, which allow the Commissioner to give directives to a licensed insurer following the conduct of an investigation under Section 34, clearly allow the Commissioner to investigate specific transactions and disputes. As to his Honour's conclusion that Part IX of the Act provides an exclusive procedure for an insured to complain to the Commissioner, this cannot be correct, Mr Griffin submitted, as it would result in the extraordinary situation where a complaint could be dealt with only by the convening of a tribunal, leaving the Commissioner powerless to address issues raised by the complaint by, for example, making a recommendation.

6. Those submissions raise these issues:

• What is the scope of Section 34? Does it only apply where the Commissioner investigates persons who are not licensed insurers or who are suspected of conducting insurance business without a licence?
  
• Do the words of Section 34 allow the Commissioner to investigate a dispute between an insurer and its customer?
  
• Does Section 35 support the view that Section 34 allows the Commissioner to investigate specific transactions and disputes?
  
• Does Part IX of the Insurance Act provide an exclusive procedure for resolving disputes between insurers and their customers?
  

Scope of Section 34

7. Section 34 consists of two subsections. Subsection (1) confers various powers on the Commissioner, the nature and purpose of which are at issue in this appeal. Subsection (2) makes it an offence to amongst other things fail to comply with requests of the Commissioner. It states:

(1) The Commissioner or a person authorized by him for the purpose may at any time during the ordinary hours of business do all or any of the following:—

(a) enter any land or place where any person—

(i) is acting as; or

(ii) is carrying on or is reasonably suspected by him to be acting as or carrying on, business as,

an insurer or insurance broker or loss adjuster;

(b) make such examination and inquiries as are necessary to ascertain the manner in which any business referred to in Paragraph (a) is being carried on and, in particular, whether the provisions of this Act have been or are being complied with in respect of that business;

(c) examine any person engaged or apparently engaged, whether as principal or employee, in the business, and require him—

(i) to answer any question put to him; and

(ii) to furnish such information as may be required; and

(iii) to sign a declaration as to the truth of any answer given by him;

(d) inspect and examine any accounts, books or records relating to, or reasonably suspected by the Commissioner or a person authorized by him to relate to, any business referred to in Paragraph (a), and for that purpose require—

(i) the holder of a licence; and

(ii) any person carrying on or reasonably suspected of carrying on any business to which this Act relates; and

(iii) any person who has possession, custody or control of any such accounts, books or records,

to produce the accounts, books and records to him, and make copies of or take extracts from any of them.

(2) A person who—

(a) assaults, resists or obstructs the Commissioner or a person authorized by the Commissioner in the exercise of his powers or the discharge of his duties under this section; or

(b) fails or refuses to answer any question put to him by the Commissioner or a person authorized by him, or gives a false or misleading answer to any such question; or

(c) fails or refuses to comply with a request of the Commissioner or a person authorized by him; or

(d) when required to furnish information under this Act by the Commissioner or a person authorized by him—

(i) fails or refuses to give the information; or

(ii) gives false or misleading information; or

(e) fails or refuses, without reasonable excuse (proof of which is on him)—

(i) to produce any books, account or record that he is required to produce under this Act by the Commissioner or a person authorized by him; or

(ii) to allow the Commissioner or a person authorized by him to make copies of or take extracts from any such books, account or record; or

(f) directly or indirectly prevents any person from appearing before or being questioned by the Commissioner or a person authorized by him; or

(g) uses any threatening, abusive or insulting language to the Commissioner or a person authorized by him whilst he is carrying out an authorized inspection under this Act,

is guilty of an offence.

Penalty: A fine not exceeding K25,000.00.

8. We agree with the submissions of Mr Griffin that there is nothing in Section 34 that expressly confines its operation to cases where the Commissioner proposes to investigate the affairs of an unlicensed insurer or a person suspected of conducting insurance business without a licence. The provisions of Section 34(1) that appear to have been relied on in the present case are Sections 34(1)(b) and (d). The Commissioner was (b) 'making such examination and inquiries as are necessary to ascertain the manner in which an insurance business was being carried on' and (d) 'requiring the holder of a licence to produce the accounts, books and records to him for the purpose of inspecting and examining accounts, books or records relating to an insurance business'. Those provisions do not apply only to unlicensed insurers or persons suspected of conducting insurance business without a licence.

9. Section 34(1)(a)(ii) allows the Commissioner to at any time during the ordinary hours of business to enter any place "where any person ... is carrying on ... business as, an insurer". Section 34(1)(d) expressly allows the Commissioner to require "the holder of a licence" to do certain things. These provisions make it clear, in our view, that Section 34 applies to licensed insurers.

10. Section 35 is also relevant. It sets out the powers of the Commissioner following an investigation under Section 33 (which allows the Commissioner to direct licensed insurers to have undertaken an investigation and report by an actuary approved by him) or under Section 34. Section 35 states:

(1) Following the conduct of an investigation under Section 33 or 34 and the issue of a written summary and conclusions, the Commissioner may, subject to Subsections (2) and (3), issue directives to a licensed insurer, licensed broker or licensed loss adjuster as he determines necessary to overcome any breaches of this Act or to protect the interests of any policy holder, shareholder or creditor.

(2) The powers of the Commissioner under Subsection (1) to direct shall include, but shall not be confined to, the following matters:—

(a) the dismissal and/or recruitment of directors, management personnel and other related persons;

(b) the undertaking of sound management principles;

(c) the disposition or recovery of assets;

(d) the issue of directives on investment management, subject to overall investment guidelines issued by the Minister under Section 26;

(e) the recovery of sums considered illegally paid;

(f) the prevention of the renewal or the issuing of further policies for all or particular classes of business;

(g) the making of specific reinsurance arrangements;

(h) the issue of any other directive considered necessary following the conduct of an investigation.

(3) The powers to issue directives under Subsection (1) shall be subject to the following requirements:—

(a) notice of intention to issue a directive shall—

(i) be issued in writing to the affected licensed insurer, licensed broker or licensed loss adjuster; and

(ii) set out the conclusions of the investigation; and

(iii) outline the intended directives; and

(iv) require the affected licensed insurer, licensed broker or licensed loss adjuster to respond within 14 days.

(b) where the affected licensed insurer, licensed broker or licensed loss adjuster responds in writing within 14 days the Commissioner shall consider the representations made, and where, after considering such representations the Commissioner decides to proceed with a directive the affected licensed insurer, licensed broker or licensed loss adjuster may then appeal to the Minister whose decision shall be final;

(c) after issue of a directive, further written representations may be made from time to time by an affected licensed insurer, licensed broker or licensed loss adjuster where the circumstances relating to the direction have changed or are no longer relevant and the Commissioner may on receipt of such written representations modify or cancel any direction;

(d) where representations made under Paragraph (c) for modification or cancellation of a directive are rejected by the Commissioner, the affected licensed insurer, licensed broker or licensed loss adjuster may make further appeal to the Minister whose decision shall be final;

(e) notwithstanding that representations have been made by an affected licensed insurer, licensed broker or licensed loss adjuster any directive issued in accordance with Paragraph (a) shall continue to apply until such time as the Commissioner or Minister confirms in writing that the directive has been modified or cancelled.

(4) A licensed insurer, licensed broker or licensed loss adjuster, who fails or neglects to comply with a directive under this section, is guilty of an offence.

Penalty: A fine not exceeding K50,000.00.

11. Section 35(1) contemplates that the Commissioner may issue directives to a licensed insurer following a Section 34 investigation. It confers this power by stating "Following the conduct of an investigation under Section ... 34 and the issue of a written summary and conclusions, the Commissioner may ... issue directives to a licensed insurer". The clear inference to be drawn from the connection between Sections 34 and 35 is that Section 34 applies not only to persons who are unlicensed or are suspected of being unlicensed but also to licensed insurers. We conclude that the trial judge erred in law in arriving at a contrary interpretation of Section 34.

The words of Section 34

12. Mr Griffin submitted that the words used to confer power on the Commissioner allow for the type of requirements the Commissioner imposed when he wrote to MMI, requiring it to explain why it had rejected Hanjung's claim and to provide information and documents regarding the claim and its entire file since inception of the cover.

13. As we indicated above there is merit in this proposition. The words of Sections 34(1)(b) and (d) on their literal construction authorise the type of requirements that were imposed. We hasten to add, however, that the question of whether the literal meaning of words used by a statutory provision to confer power on a person justifies exercise of power in a particular way is only the first phase of the process of interpretation of that provision and determination of the proper ambit of the power and the question of whether it was lawfully exercised.

Relevance of Section 35

14. We agree generally with the submissions of Mr Griffin regarding Section 35. The purpose of a directive issued under Section 35(1) is not restricted to overcoming breaches of the Act, but extends to protecting the interests of any policy holder. The types of directives that the Commissioner may give are broadly expressed by the non-exhaustive list in Section 35(2). He may, for example, issue directives as to "the dismissal and/or recruitment of directors, management personnel and other related persons" and "the undertaking of sound management practices". Nothing in Section 35 expressly prevents the Commissioner from issuing directives in relation to particular transactions or disputes. Section 35 is conferring broad supervisory powers on the Commissioner, consistent with his central role in regulation of the insurance industry.

15. We agree that directives under Section 35 may only be given following the conduct of an investigation under Sections 33 or 34. Because there is nothing in Sections 34 or 35 that expressly prevents their use in relation to particular transactions or disputes, it is arguable that there is no reason to read down Section 34, in the way that the trial judge did, to exclude its application from cases where the Commissioner, in furtherance of his supervisory and regulatory functions, considers it appropriate to investigate a particular transaction or dispute.

16. We note that Sections 34 and 35 are contained in Part V of the Act, headed 'Audit, Returns, Inspection etc' (which is by virtue of Section 26(1) of the Interpretation Act part of the principal Act and can properly be taken into account for purposes of its interpretation); and that that heading does not prevent inspection of an insurer's files for the purpose of investigating particular transactions or disputes. It is also relevant that the Commissioner has power under Part III of the Act – Licensing of Insurers and Brokers and Loss Adjusters – to issue, renew and revoke licences. It would appear to advance the exercise of those powers for the Commissioner to investigate particular transactions or disputes and issue directives, so that the Commissioner could fully inform himself of how particular insurers are conducting their insurance business.

17. We acknowledge the force of these submissions. Were it not for the inclusion in the statutory scheme of an elaborate procedure for dealing with complaints, which is set out in Part IX, it may well be that the broadly expressed provisions of both Sections 34 and 35 would drive the conclusion that Section 34 allows the Commissioner to investigate particular transactions or disputes. However, the submissions made on behalf of the Commissioner fail to take proper account of the impact of Part IX.

Relevance of Part IX – Complaints Procedures and Dispute Resolution

18. Part IX consists of Sections 47 to 57. The Insurance Complaints Tribunal is established by Section 48. It consists of five members and the Commissioner or his nominee is the Chairman. The primary function of the Tribunal is according to Section 53(1) "to consider disputes and complaints referred to it by policy holders of general insurance policies and affected third parties". The Tribunal cannot consider a complaint until it is satisfied that all internal procedures for complaint and dispute resolution (which every licensed insurer is required by Section 47 to develop, and have approved by the Commissioner) have been fully exhausted. The Tribunal can under Section 54(1) require any person to produce to it any books, document, record or information in the possession or control of the person that relates to a disputed matter under consideration by the Tribunal. It is empowered by Section 53(4) "to adjudicate and direct a licensed insurer ... in the resolution of any particular complaint or dispute". A party to a dispute (other than a licensed insurer, licensed broker or licensed loss adjuster) or an affected third party, aggrieved by a decision of the Tribunal, may under Section 56 appeal to the National Court. Any person who fails or neglects to implement a direction of the Tribunal is under Section 57 guilty of an offence and subject to a maximum fine of K100,000.00.

19. The trial judge considered that the elaborate and restrictive procedure put in place by Part IX made it clear that the Commissioner has no role in investigating or resolving complaints as to particular transactions or disputes other than strictly in accordance with Part IX. His Honour highlighted the combined effect of Sections 47(1) and 53(3): every insurer must have an internal dispute resolution procedure and the Tribunal cannot consider a complaint until it is satisfied that all internal procedures have been fully exhausted. If an insured makes a complaint to or registers a dispute with the Commissioner he has no power to himself investigate the matter. He is obliged to refer the matter to the Tribunal. There is a good reason for this, his Honour held:

The Commissioner's only and proper role in the resolution of a dispute of a particular insurance claim is through his position in the Tribunal. It can hardly be imagined that the Commissioner should be involved in the investigation of a particular disputed insurance claim and sit in impartiality in an independent tribunal dealing with the same complaint. If a party is dissatisfied with the tribunal's decision, that party has a right of appeal to the National Court under s 56 of the Act.

20. Mr Griffin submitted that the potential conflict of interests alluded to by his Honour cannot have the effect of altering the plain meaning of the words used in Section 34. The legislature chose to appoint the Commissioner or his nominee as chairman of the Tribunal notwithstanding the Commissioner's close association with and involvement in the whole of the operations of the insurance industry. The Commissioner is the licensing authority so it could just as well be argued that this is also inconsistent with his chairmanship of the Tribunal. The Commissioner is by Section 5(2) charged "with the administration of the Act", so one of his responsibilities is to initiate proceedings for breach of the Act. This role could also be said – if the trial judge's approach were to be taken – to be inconsistent with his role as chairman of the Tribunal. The argument is therefore that the Commissioner has deliberately been clothed with an array of powers, functions, duties and responsibilities and any apparent inconsistency between any of them should be accepted as the deliberate policy of the legislature. Mr Griffin also pointed out that there is provision for the Commissioner to appoint a nominee in his stead if the circumstances of a particular matter caused him to have a conflict of interests. A further error in the trial judge's reasoning lay, Mr Griffin submitted, in his insistence that the only way in which a complaint by an insured could be dealt with by the Commissioner was to refer the complaint to the Tribunal; thus creating the extraordinary consequence that the Commissioner would be powerless to address the issues raised by the complaint, for example, by the making of a recommendation.

21. We are not persuaded by any of these submissions that the trial judge erred in his assessment of the effect of Part IX on the interpretation of Section 34. We uphold the submissions of Mr Mana, for MMI, that the clear purpose of Part IX is to provide an exclusive procedure for an insured to pursue a complaint regarding a particular transaction or dispute. The insured must first fully exhaust the internal dispute resolution procedure with its insurer; and only when that is done should it refer the dispute to the Tribunal. If a matter is referred to the Tribunal without that initial procedure being exhausted, the Tribunal would be obliged not to consider the complaint; it would be acting beyond jurisdiction to consider it. The corollary is that the Commissioner has no power to inject himself into the procedure by investigating a complaint either before or after exhaustion of the insurer's internal dispute resolution procedure. We do not agree that this is an extraordinary consequence, as suggested by Mr Griffin.

22. We agree with the trial judge that the Act should be interpreted in such a way that will avoid a conflict of interests on the part of the Commissioner. If he were to investigate a complaint and impose requirements of the sort that he did in this case he would be in no position to properly sit as chairman of a Tribunal, the prime function of which is to consider such complaints, adjudicate and give enforceable directions on them. As Mr Mana pointed out, these are quasi-judicial responsibilities, and the administrative responsibilities conferred on the Commissioner in many other provisions of the Act ought not to be interpreted in such a way as to set up a conflict between them. It is a clumsy and impractical response to that difficulty to say that the Commissioner could appoint a nominee in such circumstances. We see no similar potential for conflict or inconsistency in roles arising from the Commissioner being Chairman of the Tribunal and at the same time being charged with administration of the Act and being the licensing authority. He is the industry regulator but he is given no role, expressly or impliedly, as a complaint resolution authority or industry ombudsman.

Conclusion

23. When account is taken of the elaborate complaint and dispute resolution procedures in Part IX, it is clear that its provisions are providing an exclusive code that must be followed by all the players involved: the insured, the insurer and the Commissioner. The interpretation of Section 34 advanced by the Commissioner is flawed as it fails to take account of a fundamental principle of statutory interpretation: every word and every provision must be read in context, not in isolation. The importance of the context and purpose of statutory provisions was emphasised by Injia DCJ, as he then was, in Gari Baki v Allan Kopi (2008) N4023:

The principles of statutory interpretation are settled. The Court must give effect to the legislative intention and purpose expressed in the language used in the statute. If the words used in the statute are clear and unambiguous, the Court must adopt the plain and ordinary meaning of those words. There is no need for the Court to engage in any statutory interpretation exercise. If the words are not so clear or ambiguous, the Court must construe the words in a fair and liberal manner in ascertaining their meaning and give an interpretation which gives meaning and effect to the legislative intention in the provision. The purpose of words or phrases used in question should be read and construed in the context of the provision as a whole. The Court should avoid a technical or legalistic construction of words and phrases used in a statutory provision without regard to other provisions which give context and meaning to the particular word(s) and phrases in question.

24. We endorse the correctness of that approach and we do likewise with the following dicta of Cannings J in The State v James Yali (2005) N2932:

The court's duty is to give a legislative provision its proper meaning, after carefully considering its purpose and context, and, in accordance with Section 158 of the Constitution, to give paramount consideration to the dispensation of justice.

25. We venture to suggest that whenever the question arises as to whether power conferred by a statutory provision has been lawfully exercised the court should first examine whether the exercise of power falls within the literal meaning of the words of the statutory provision; and if it does, the court should then examine whether the purpose of that provision, given its context in the statutory scheme of which it forms part, qualifies the literal meaning of the words used.

26. If Section 34 is read literally and in isolation it appears – as we have explained earlier – to authorise the decision of the Commissioner. However, given the purpose of the provision, evident from its context in the whole of the Insurance Act, particularly in light of the complaints and dispute resolution procedure in Part IX of the Act, in which the Commissioner plays a central role, the literal meaning of the words is heavily qualified. It is clear that the power in Section 34 is not to be exercised for the purpose of inquiring into complaints from insured persons or resolving disputes between them and insurers. The powers in Section 34 are to be exercised by the Commissioner for the purposes of his administration of the Act, to ensure compliance with the provisions of the Act, to protect the interests of licensed insurers, brokers and loss adjusters, policy holders, shareholders and creditors, and generally to promote and preserve the integrity of the industry. But they do not extend into the area of investigating specific complaints and disputes.

27. The trial judge did not err in law in holding that Section 34 does not empower the Commissioner to direct a licensed insurer to provide information regarding a disputed insurance claim. Nor did his Honour err in concluding that the Commissioner acted beyond the power conferred by Section 34. Ground No 1 of the appeal is therefore dismissed.

GROUND 2: ERROR OF LAW BY HOLDING THAT THE POWERS CONFERRED ON THE COMMISSIONER BY SECTION 34 WERE LIMITED BY THE HEADING OF PART V OF THE ACT: "AUDIT, RETURNS, INSPECTION ETC"

28. This issue has been dealt with in ground No 1. We acknowledge that the exercise of power by the Commissioner in the present case and the type of requirements he imposed on MMI could be regarded as an exercise of powers of "inspection". However, the categorisation of the power in that way does not defeat the result of reading Section 34 and the words in the heading to Part V in context. The literal meaning of the words must be read down in light of their context. The trial judge made no error of law in the manner contended for. Ground No 2 is dismissed.

GROUND 3: ERROR OF LAW BY HOLDING THAT ON RECEIPT OF A COMPLAINT THE COMMISSIONER MUST REFER THE COMPLAINT TO THE INSURANCE COMPLAINTS TRIBUNAL UNDER PART IX OF THE INSURANCE ACT

29. This ground of appeal has been subsumed by our determination of ground No 1. We agree with the trial judge that on receipt of a complaint the Commissioner must refer the complaint to the Insurance Complaints Tribunal under Part IX of the Act. Ground No 3 is dismissed.

GROUND 4: ERROR OF LAW BY HOLDING THAT THE COMMISSIONER ACTED ULTRA VIRES BY ISSUING DIRECTIVES TO THE RESPONDENT REQUIRING IT TO PROVIDE ACCESS TO DOCUMENTS

30. We agree with the trial judge that the Commissioner acted ultra vires (beyond power) by issuing directives to the respondent, requiring it to provide access to documents. The directives were issued for the purpose of inquiring into a complaint from an insured. The Commissioner lacked power to inquire into such a complaint as it concerned a specific policy and a specific dispute. The trial judge made no error of law in the manner contended for. Ground No 4 is dismissed.

CONCLUSION

31. The learned trial judge made only one error of law (on the question of whether Section 34 only applies where the Commissioner investigates persons who are not licensed insurers or who are suspected of conducting insurance business without a licence). However, that has had no effect on our resolution of the grounds of appeal, all of which have been dismissed. The appeal must fail. Costs will follow the event and will be awarded on a party-party basis. The respondent provided no good reason for an award of solicitor-client costs.

ORDER

(1) The appeal is dismissed.

(2) The orders of the National Court of 6 April 2010 in OS (JR) No 336 of 2002 are confirmed as correct and shall continue to have full force and effect.

(3) The appellant shall pay the costs of the appeal to the respondent on a party-party basis, to be taxed if not agreed.

Judgment accordingly.

_____________________
Elemi Lawyers: Lawyers for the Appellant
Allens Arthur Robinson: Lawyers for the Respondent