Insurance Australia Group Ltd t/as NRMA Insurance v Ilsley

1. [1]

   HIS HONOUR: On 13 February 2014, Ms Patricia Ilsley, the first defendant, was involved in a motor vehicle accident falling within the meaning of that expression in s 3 of the Motor Accidents Compensation Act 1999 (NSW) (“the Act”). Liability was wholly admitted by the compulsory third party insurer of the vehicle at fault, Insurance Australia Group Ltd (trading as NRMA Insurance) (“the plaintiff”).

2. [2]

   The first defendant claimed that she had suffered physical and psychiatric injuries caused by the motor vehicle accident. She claimed damages for non-economic loss as contemplated by Pt 5.3 of the Act.

3. [3]

   Section 131 of the Act provides that no damages may be awarded for non-economic loss unless the degree of permanent impairment of the injured person as a result of the injury caused by the motor vehicle accident is greater than 10% (see also ss 58(1)(d) and61(10) of the Act). The scheme of the Act provides for physical and psychiatric injuries to be separately assessed in terms of whole person impairment, such that the results may not be aggravated (see, in particular, s 133).

4. [4]

   There was a dispute between the first defendant and the plaintiff as to the degree of her permanent impairment and, in particular, whether her degree of impairment was sufficient for an award of damages for non-economic loss as discussed above. That dispute extended to the psychiatric and psychological injuries relied upon by the first defendant. Section 132(1) of the Act provides that, in such circumstances, a court may not award damages for non-economic loss unless the degree of permanent impairment has been assessed by a medical assessor under Pt 3.4 of the Act.

5. [5]

   Part 3.4 of the Act applies to a disagreement between a claimant and an insurer about whether the degree of permanent impairment of an injured person as a result of an injury caused by the motor vehicle accident is greater than 10% (s 58(1)). Hence, Pt 3.4 of the Act applied to the first defendant’s claim.

6. [6]

   Section 60(1) provides that a medical dispute may be referred to the Motor Accident’s Medical Assessment Service (“MAS”) under the authority of the State Insurance Regulatory Authority (“SIRA”), the second defendant.

7. [7]

   Section 61 of the Act provides that the medical assessors to whom the medical dispute is referred are to give a certificate as to the matters referred for assessment. Associate Professor Paul Myers and Dr Norman Robert Rose had this obligation.

8. [8]

   The first defendant’s physical injuries were assessed by Associate Professor Myers. He issued a Certificate on 15 June 2016.

9. [9]

   The first defendant’s claim as to psychiatric injuries was referred for assessment by Dr Rose. He issued a Certificate on 26 July 2016.

10. [10]

    Section 61(2) provides that any such certificate as to a medical assessment matter is conclusive evidence as to the matters certified in any court proceedings or in any assessment by a Claims Assessor in respect of the claim concern. That provision is subject to the requirements of ss 62 and 63 of the Act to which I will return.

11. [11]

    An application for a general assessment was filed with the Claims Assessment and Resolution Service (“CARS”) by the first defendant and a reply to that application was lodged by the plaintiff. The plaintiff made a submission on 20 November 2017 in which an application was made for further medical assessment pursuant to s 62 of the Act. That application was directed to the assessment made by Dr Rose and was predicated upon the claimed existence of “additional relevant information” about the injury sustained in the motor vehicle accident (it may be noted that an application under s 62(1) may also be brought on the ground of a deterioration of the injury). The additional material relied upon by the plaintiff, for the purposes of these proceedings, was as follows: the Certificate of Associate Professor Myers; a medical report of Dr Robin Mitchell, occupational physician, dated 2 November 2017; and the clinical notes of Ms Laura Francke, a psychologist (that material shall hereinafter be referred to, collectively, as “the additional information”).

12. [12]

    Reply submissions were made by the first defendant on 22 December 2017.

13. [13]

    On 11 January 2018, the plaintiff’s application for further assessment under s 62(1)(a) of the Act was determined adversely to the plaintiff by a Proper Officer of SIRA (see s 62(1B)), Ms Sarah Edwards, the third defendant (the Proper Officer shall be referred to as “the third defendant” and her decision as “the third defendant’s decision”).

14. [14]

    On 12 February 2013, the plaintiff forwarded submissions to CARS seeking, inter alia, that, pursuant to s 62(1)(b) of the Act, a Claims Assessor refer “the matter back to MAS” for a further medical assessment (“the plaintiff’s further CARS submission”).

15. [15]

    On 6 April 2018, CARS assessor Mr Peter Harvey, the fourth defendant, determined not to refer the matter for further medical assessment (Mr Harvey shall be referred to as “the fourth defendant” and his decision as “the fourth defendant’s decision”).

16. [16]

    The second, third and fourth defendants issued submitting appearances with respect to all orders sought and the giving of entry of judgment with respect to all claims made, save as to costs.

JUDICIAL REVIEW

1. [17]

   By an amended summons filed 27 April 2018, the plaintiff sought an order in the nature of certiorari or, alternatively, a declaration setting aside or declaring invalid the third defendant’s decision and the fourth defendant’s decision.

2. [18]

   The relief claimed by the plaintiff was as follows:

   1. (1)

      An order in the nature of certiorari or, alternatively, a declaration setting aside or declaring invalid the decision of the third defendant, the "Proper Officer" of the second defendant, purportedly made under the Act, namely, the determination made on or about 11 January 2018 to refuse the plaintiff's application to refer the medical dispute in relation to the first defendant's alleged psychiatric injuries to a medical assessor for further assessment pursuant to s 62(1)(a) of the Act.

   2. (2)

      An order in the nature of certiorari or, alternatively, a declaration setting aside or declaring invalid the decision of the fourth defendant, a Claims Assessor appointed by the second defendant, purportedly made under the Act, namely, the determination made on or about 6 April 2018 and the reasons for determination dated 10 April 2018 to refuse to refer the medical dispute in relation to the first defendant's alleged psychiatric injuries to a medical assessor for further assessment pursuant to s 62(1)(b) of the Act.

   3. (3)

      An order that the matter be remitted to the second defendant for determination according to law by a different Proper Officer of the plaintiff's application for further medical assessment of the first defendant's alleged psychiatric injuries and impairment under s 62(1)(a) of the Act.

   4. (4)

      An order that the matter be remitted to the fourth defendant for determination according to law of the plaintiff's application for further medical assessment of the first defendant's alleged psychiatric injuries and impairment under s 62(1)(b) of the Act.

3. [19]

   The plaintiff articulated five grounds for judicial review. Each ground included a narrative as to the contentions in support of the ground. Given some of the difficulties involved in identifying with precision the true nature of the alleged error in grounds 1 and 2, they shall be fully extracted below. It will be sufficient to identify the substance of grounds 3 to 5.

4. [20]

   Ground 1 bears the heading “The Proper Officer failed to have regard to a relevant consideration” and was expressed in the amended summons as follows:

5. [21]

   Ground 2 was entitled “The Proper Officer failed to engage with the Plaintiff’s argument” and was expressed as follows:

6. [22]

   In substance, grounds 3 to 5 were as follows:

FACTUAL BACKGROUND

1. [23]

   There was no dispute as to the factual background or the receipt of the material discussed below in the determination of the summons.

The Certificate of Associate Professor Myers

1. [24]

   Associate Professor Myers reported on the history of symptoms and treatment following the motor vehicle accident. He indicated that the first defendant was taken to Maitland Hospital by ambulance. Various imaging was conducted. She was discharged and saw her general practitioner who sent her to physiotherapy. Headaches became worse despite the taking of morphine. She then saw Dr Dandie at Westmead Private Hospital who told her that her neck was dislocated. She had an operation as a private patient resulting in multiple screws being placed in her neck. This occurred about 4-5 months after the motor vehicle accident.

2. [25]

   Associate Professor Myers then reported on the current symptoms which the first defendant was experiencing. As to her cervical spine, he recorded:

3. [26]

   As to her lumbosacral spine, he recorded:

4. [27]

   Associate Professor Myers undertook a review of “relevant documentation”. As part of that review he made the following observations:

5. [28]

   As to this part of the report, the plaintiff submitted that the first dependant had significant pre-existing symptoms and injuries in her back and neck resulting from her work in the horse industry and, in particular, falling from horses many times over her life.

6. [29]

   This submission corresponded to Associate Professor Myers’ conclusion as to diagnosis and causation in which he observed:

7. [30]

   Under the heading “Summary of Injuries Listed by the Parties and Caused by the Accident”, Associate Professor Myers opined as follows:

8. [31]

   Under the heading “Summary of Injuries Listed by the Parties and Not Caused by the Accident”, Associate Professor Myers opined as follows:

9. [32]

   In section 7 of the report, Associate Professor Myers made “determinations”.

10. [33]

    Associate Professor Myers made a determination as to permanent impairment in accordance with the “American Medical Association’s Guides to the Evaluation of Permanent Impairment (Fourth Edition)” and the “Permanent Impairment Guidelines (1 October 2007)”. As to the degree of permanent impairment, he opined that having regard to “Chapter 4 of the MAA Guidelines” concerning multilevel structural compromise including spinal fusion and intervertebral disk replacement, he considered the level of multilevel structure compromise to be at “DRE Category 4” which attracted “a 25% Whole Person Impairment”.

11. [34]

    However, the plaintiff was correct to submit that Associate Professor Myers considered that the first defendant’s neck symptoms, and the need for surgery, arose wholly from the pre-existing neck injury and were not related to the motor vehicle accident. The plaintiff was also correct to submit that Associate Professor Myers found that the applicant did suffer soft tissue injury to her neck in the motor vehicle accident but the consequences of that injury were relatively minor.

12. [35]

    Associate Professor Myers’ conclusion, in that respect, was as follows:

13. [36]

    In the result, Associate Professor Myers found the final percentage of whole person impairment as a result of the injuries caused by the motor vehicle accident as zero.

14. [37]

    In coming to that conclusion, Associate Professor Myers treated the surgery as relating to a pre-existing impairment and deducted the 25% that would have been awarded if the first defendant’s operation was required due to injury from the motor vehicle accident. As previously mentioned this was due to his conclusion that the surgery was not required in consequence of the motor vehicle accident.

15. [38]

    Some brief observations should be made as to the aftermath of that report:

    1. (1)

       The first defendant applied for a review by a Review Panel of the Certificate of Associate Professor Myers pursuant to s 63 of the MACA.

    2. (2)

       The first defendant's application for review was dismissed by the third defendant on 22 August 2016. The third defendant was not satisfied that there is reasonable cause to suspect that Associate Professor Myers' assessment was incorrect in a material respect.

    3. (3)

       There has been no further application or assessment concerning the first defendant's alleged physical injuries. The assessment of the first defendant's physical injuries is not the subject of this application for judicial review. By virtue of s 61(2) of the Act, Associate Professor Myers’ medical assessment is conclusive evidence as to the matters certified in any court proceedings or any assessment by a Claims Assessor.

16. [39]

    The plaintiff contended the first defendant's alleged symptoms arising from her physical injuries (in particular, pain) were relevant to the dispute concerning impairment, if any, caused by her alleged psychiatric injuries. The controversy surrounding that issue primarily, but not exclusively, concerned grounds 1 and 2 which shall be addressed later in this judgment.

The Certificate of Dr Rose

1. [40]

   Dr Rose commenced his report by summarising his overall conclusion as follows:

2. [41]

   In the introduction to his report, Dr Rose provides a list of injuries to be assessed as follows: major depressive disorder, pain disorder and chronic post-traumatic stress disorder.

3. [42]

   Dr Rose took a history from the first defendant. In that history he dealt with: pre-accident medical history; relevant personal details; psychosocial history; pre-accident functioning; history of the motor vehicle accident; history of symptoms and treatment following the motor vehicle accident; details of any relevant injuries or conditions sustained since the motor vehicle accident; current symptoms and current and proposed treatment.

4. [43]

   The entries under the first three headings are extracted below (save for a partial excision of contents under the third heading):

5. [44]

   As to pre-accident functioning, the history received from the first defendant was as follows:

6. [45]

   Further as to the history taken from the first defendant, Dr Rose reported as to symptoms and treatment following the motor vehicle accident as follows:

7. [46]

   Dr Rose then undertook a review of documentation. His first observation in summary of the relevant documentation was as follows:

8. [47]

   Dr Rose then made the following observations, which received attention by both parties:

9. [48]

   Finally, in his conclusions as to diagnosis and causation Dr Rose stated:

10. [49]

    Dr Rose made a determination as to permanent impairment in accordance with the “American Medical Association’s Guides to the Evaluation of Permanent Impairment (Fourth Edition)” and the “Permanent Impairment Guidelines (1 October 2007)”. As to the degree of permanent impairment, he assessed the “Percentage Whole Person Impairment” of the first defendant to be at 50%, as arising from the injuries sustained in the motor vehicle accident.

11. [50]

    The plaintiff relied upon the fact that Dr Rose was not given the report of Associate Professor Myers. It contended that there was a relationship between physical symptoms and psychiatric disorders and, in particular, a disorder called a “pain disorder”. It was contended that if the chronic pain was not caused by the motor vehicle accident, the pain disorder could not be caused by the motor vehicle accident. What Dr Rose was told by Ms Ilsley was that her perception was that her neck and back pain were severe, chronic and solely caused by the motor vehicle accident. It was submitted that Dr Rose did not record in his reasons any complaint by the first defendant that her neck symptoms were increased by the motor vehicle accident.

12. [51]

    The plaintiff accepted that Dr Rose made three diagnoses but it was not possible to distinguish one from the other in terms of their contribution to the assessment of 50% whole person impairment. Dr Rose misapprehended the cause (in the sense that the psychological symptoms were caused by the motor vehicle accident) in coming to his diagnosis because he did not have, inter alia, Associate Professor Myers’ report which was definitive as to physical symptoms. The diagnosis of pain disorder and “almost certainly” major depressive disorder depended on findings as to cause which were not available having regard to Associate Professor Myers’ report. The post-traumatic stress disorder could stand “but what that would lead to in terms of impairment might be totally different matter altogether and probably would be”.

Report of Dr Mitchell

1. [52]

   As earlier mentioned, the plaintiff obtained a medical report from Dr Mitchell, occupational physician, issued on 2 November 2017. He opined that the first defendant’s neck pain at the level of C5/C6 initially developed following a number of falls from horses from 2005. He concluded that “the required subsequent spinal surgery and ongoing neck pain and treatment [were] not causally related to the subject motor vehicle accident”. He further opined that “low back and her leg symptoms do not follow any clear clinical pattern and there was no objective clinical evidence of any underlying injury in the lower back to explain her reported symptoms”.

2. [53]

   The plaintiff submitted that Dr Mitchell’s conclusion was that the issues with the first defendant’s back were completely unrelated to the motor vehicle accident and the neck was almost completely unrelated to that accident.

Application by the Plaintiff for Further Medical Assessment

1. [54]

   The plaintiff applied to MAS for a further medical assessment of the first defendant’s psychological injuries pursuant to s 62(1)(a) of the Act. The plaintiff’s submission to MAS included the following:

2. [55]

   The plaintiff also contended that it relied upon the clinical notes of Ms Francke detailing psychological treatment provided to the first defendant between 2010 and 2011, three to four years prior to the accident. The first defendant pointed to an entry in Ms Francke’s clinical notes on 26 July 2011, wherein she stated:

3. [56]

   The plaintiff submitted that, in essence, it had contended that the Certificate of Associated Professor Myers, the medical report of Dr Mitchell and clinical notes of Ms Francke met the requirements of s 62(1)(a) and (1A) because:

   1. (1)

      The reports as to the first defendant's pre-accident neck symptoms and, in particular, the Certificate of Associate Professor Myers, made it clear that the first defendant had significant pain in her cervical spine for some years prior to the motor vehicle accident in February 2014. Moreover, the Certificate of Associate Professor Myers had to be taken as conclusive evidence that the first defendant suffered no additional impairment in her cervical spine as a result of the motor vehicle accident in February 2014;

   2. (2)

      The clinical notes of Ms Francke established that the first defendant had significant psychological symptoms prior to the accident. Yet Dr Rose found that there was no pre-existing psychiatric impairment.

Reply Submissions by the First Defendant in relation to Application to the Third Defendant

1. [57]

   The first defendant made a reasonably lengthy submission in response to the plaintiff’s application and submission. For present purposes, I will extract that part falling under the heading “A. Dr Myers – Paras 8-12” as follows:

The Third Defendant’s Decision

1. [58]

   As previously mentioned, the plaintiff’s application for a further assessment under s 62(1)(a) was dismissed by the third defendant.

2. [59]

   At the outset of her decision, the third defendant summarised the plaintiff’s submissions as follows:

3. [60]

   The third defendant then identified two grounds relied upon by the plaintiff. The first was that there was an inconsistency between the history provided by the first defendant to Dr Rose and what was recorded in other documentation. The second was that Dr Rose had “accepted that the first defendant’s chronic pain and pain disorder were caused by the subject accident”.

4. [61]

   Turning firstly to the Certificate of Associate Professor Myers, the third defendant summarised her understanding of Associate Professor Myers’ assessment as follows:

5. [62]

   The third defendant considered that the Certificate of Associate Professor Myers was “additional relevant information to a psychiatric assessment” but that she was not satisfied that it would be capable of having a material effect on the outcome of the previous assessment. She stated “the information before Assessor Rose made it clear that the claimant had significant pre-accident injuries and symptoms in relation to the spine”.

6. [63]

   The third defendant then opined:

7. [64]

   As to the medical report of Dr Mitchell, the third defendant found that report was also “additional relevant information about the injury” but, again, not capable of having a material effect on the outcome of the previous assessment. The third defendant’s findings, in that respect, are extracted below:

8. [65]

   As to Ms Francke, the third defendant again found that Ms Francke’s clinical notes constituted “additional relevant information about the injury”. As to those notes she found:

9. [66]

   The matter was then allocated by SIRA to the fourth defendant for assessment of the first defendant’s damages.

Application to the Fourth Defendant for Further Assessment of Psychiatric Injuries

1. [67]

   By the plaintiff’s further CARS submission, the plaintiff applied to the fourth defendant to refer “the matter” for further medical assessment under s 62(1)(b) of the Act.

2. [68]

   The following represents some extracts from that submission:

The Fourth Defendant’s Decision

1. [69]

   On 6 April 2018, the fourth defendant sent an email communication to the relevant parties, which is extracted below:

2. [70]

   The fourth defendant sent a further communication by email on 9 April 2018, in reply to a request for “the complete reasons for [his] decision” by the legal representatives for the first defendant made on that same date, in which he stated:

LEGISLATIVE PROVISIONS

1. [71]

   Part 3.4 of the Act concerns “Medical assessment”.

2. [72]

   Section 57 provides various definitions, inter alia, as follows:

   1. (1)

      “medical assessment matters” are defined as meaning “any of the matters referred to in s 58”;

   2. (2)

      “medical assessor” is defined as meaning “a person appointed under this Part to make an assessment under this Part”; and

   3. (3)

      “medical dispute” means “a disagreement or issue to which this Part applies”.

3. [73]

   Section 57A(1) provides that the Authority is to establish in association with its operations a unit, to be known as the “Motor Accidents Medical Assessment Service”. The Authority is defined as SIRA: s 3 of the Act.

4. [74]

   Section 58(1) applies to disagreements between a claimant and an insurer and is in the following terms:

5. [75]

   Section 58(1)(d) is the applicable provision in the present proceedings.

6. [76]

   Section 60(1) provides that a medical dispute may be referred to the Authority for assessment under this Part by, inter alia, either party to the dispute.

7. [77]

   Section 61(1), (2) and (10) provide as follows:

8. [78]

   Section 62 is in the following terms:

9. [79]

   Section 63(1) provides as follows:

SUBMISSIONS

1. [80]

   The following is a summary of the parties’ written and oral submissions, save for those earlier summarised in this judgment.

Submissions for the Plaintiff

1. [81]

   In oral submissions, the plaintiff addressed grounds 1 and 2 together focusing firstly upon the additional information, so far as it concerned Associate Professor Myers and Dr Mitchell, and nextly the clinical notes of Ms Francke although ground 2 did not engulf the third defendant’s consideration of those notes.

2. [82]

   As to ground 1, the plaintiff made the following submissions:

3. [83]

   As to ground 2, the plaintiff made the following submission:

4. [84]

   In oral submissions, Mr K Rewell SC for the plaintiff expanded upon those submissions as follows:

   1. (1)

      The third defendant’s reasoning for finding the additional information, which had been found to be additional relevant information for the purposes of s 62(1)(a), was not such as to be capable of having a material effect on the outcome of the previous assessment of Dr Rose is to be primarily found in paragraph 17 of the third defendant’s decision.

   2. (2)

      Whilst those conclusions are “factually correct”, Dr Rose had found the previous complaints of pain had been aggravated to the extent that he diagnosed pain disorder. It was also true, as found by the third defendant, that Dr Rose had found that “all of the psychiatric diagnoses he made were caused by the accident” as was the finding that Dr Rose was aware of the first defendant’s pre-accident injuries “and took them into account”.

   3. (3)

      However, the third defendant missed the “whole point” the plaintiff was advancing and did not engage with the plaintiff’s argument.

   4. (4)

      The first defendant did have neck and back symptoms prior to the motor vehicle accident but the plaintiff’s contention was that, save for a soft tissue neck injury, they were the same after the motor vehicle accident.

   5. (5)

      Dr Rose came to the view he did because he was told her neck symptoms were made worse after the accident.

   6. (6)

      Dr Rose wrongly assumed that the motor accident caused an increase in the plaintiff’s neck pain and that the first defendant’s psychiatric symptoms, in that respect, were caused by the motor vehicle accident. This failure occurred because Dr Rose did not have Associate Professor Myers’ certificate. Associate Professor Myers certified that the defendant’s neck injuries were limited to soft tissue injury (her surgery was unrelated to the motor vehicle accident) and the back injury did not derive from the motor vehicle accident.

   7. (7)

      As Associate Professor Myers did not support any relationship between ongoing symptoms (including pain) in the neck and the motor vehicle accident, the diagnosis by Dr Rose of pain disorder and “almost certainly” major depressive disorder were wrong.

   8. (8)

      The Certificate of Associate Professor Myers and the report of Dr Mitchell, being prepared by medical specialists qualified to assess the cause of physical pain (unlike Dr Rose), undermine altogether the basis for Dr Rose's diagnoses of pain disorder and major depressive disorder.

   9. (9)

      The third defendant examined the report of Associate Professor Myers but she considered it sufficient, in order to determine the application, to find that Dr Rose knew there were pre-existing “physical symptoms” whereas the plaintiff contended to her that all post-accident symptoms were attributable to “pre-accident conditions”. The chronic pain which led to the diagnosis of pain disorder was only pre-accident chronic pain.

   10. (10)

       Senior counsel further contended:

   11. (11)

       The findings by Dr Rose that the pre-existing neck injuries were aggravated by the motor vehicle accident vis-a-vis a diagnosis of pain disorder were unavailable in the light of Associate Professor Myers’ certificate which was relevant additional information because Dr Rose did not have it and it was conclusive evidence as to the existence of any additional physical symptoms.

   12. (12)

       The diagnoses of pain disorder and depression disorder were severely undermined by these factors and, therefore, their elimination or reduction must result in a significant change in the assessment of permanent impairment.

   13. (13)

       The plaintiff made the following submission as to the remaining diagnosis:

5. [85]

   In that light it was submitted that the third defendant had erred in concluding that the Certificate of Associate Professor Myers and the report of Dr Mitchell were not capable of having a material effect on the outcome of Dr Rose’s assessment.

6. [86]

   As to Ms Francke, the first defendant told Dr Rose she had never had any psychological treatment. It was submitted that the first defendant’s representation, in that respect, was wrong.

7. [87]

   Dr Rose did not have Ms Francke’s clinical notes.

8. [88]

   The third defendant’s decision at para 72, namely, that she was not satisfied that the clinical notes of Ms Francke were objective evidence of a symptomatic impairment at the time of the accident, misunderstood the plaintiff’s submission. That submission was based on two factors:

   1. (1)

      First, that the history given by Dr Rose was wrong; and

   2. (2)

      Secondly, Ms Francke’s clinical notes had the capacity to persuade the third defendant that there was an underlying psychiatric condition prior to the motor vehicle accident.

9. [89]

   As to the notes of Ms Francke overall, the plaintiff submitted that, had Dr Rose been aware that the first defendant was treated by Ms Francke, the estimate by Dr Rose of psychiatric impairment caused by the subject accident may have been much less. His diagnoses may have been affected.

10. [90]

    The third defendant erred in determining that the clinical notes of Ms Francke were unlikely to be capable of having a material effect on the outcome of Dr Rose's assessment.

11. [91]

    As to ground 3, the plaintiff submitted:

12. [92]

    As to ground 4 the plaintiff made the following submission:

13. [93]

    The plaintiff sought that the decisions of the third and fourth defendants be set aside and an order that the matter be remitted to SIRA for determination. The remitter should be carried out simultaneously, with respect to both impugned decisions, but the plaintiff would request that the fourth defendant consider the matter first. It was submitted, if the fourth defendant granted the plaintiff’s application, there would be no need for the third defendant to take any further steps. This approach was available as SIRA “controls” both the third and the fourth defendants.

Submissions for the First Defendant

1. [94]

   The first defendant filed a written submission on 21 August 2018 and, shortly prior to the hearing of the matter, a supplementary submission dated 7 September 2018 (“the supplementary submission”).

2. [95]

   By the supplementary submission, the first defendant contended, inter alia, that the third defendant’s decision was no longer a decision that had any legal effect. It was submitted that the decision, therefore, was not amenable to judicial review and that the challenge to the third defendant’s decision should be dismissed.

3. [96]

   It was also submitted that the Court should, in such circumstances, only be concerned with the third and fourth grounds challenging the fourth defendant’s decision, although the first defendant contended that the challenges advanced by the plaintiff against both the third and fourth defendant’s decisions were futile.

4. [97]

   It is, therefore, appropriate to summarise the defendant’s submissions by first summarising the defendant’s submission as to whether the third defendant’s decision is amenable to review and then, in order, the first defendant’s submissions as to grounds 3 and 4; grounds 1 and 2 and, lastly, the submissions on futility.

5. [98]

   The starting place (and perhaps the end point) for the supplementary submission was Miles v Motor Accidents Authority (NSW) (2013) 84 NSWLR 632; [2013] NSWSC 927 (“Miles”) at [46]-[47] (per Hoeben CJ at CL).

6. [99]

   The first defendant also placed reliance upon Hot Holdings Pty Ltd v Creasy (1996) 185 CLR 149; 134 ALR 469; 70 ALJR 286; [1996] HCA 44 (“Hot Holdings”) at 159 (per Brennan CJ and Gaudron and Gummow JJ) to submit that, in order for a writ of certiorari to be issued, it must be possible to identify a decision which has a discernible or apparent legal effect upon rights. It is that legal effect which may be removed for quashing (reliance was also placed upon Commissioner of Taxation of the Commonwealth of Australia v Futuris Corporation Ltd (2008) 237 CLR 146; 247 ALR 605; 82 ALJR 1177; [2008] HCA 32 (“Futuris”) at [91] (per Kirby J).

7. [100]

   The supplementary submission, in that respect, was short and is extracted below:

8. [101]

   It was submitted that the fourth defendant’s decision was a new decision based upon the same provision of the Act and with reliance upon the same material. That decision, it was contended, is justiciable under s 69 of the Supreme Court Act 1970 (NSW) but not the third defendant’s decision.

9. [102]

   Thus, it was contended that it is not open to the plaintiff to seek the Court quash two decisions and then remit in both cases.

10. [103]

    The first defendant advanced submissions as to the correct legal test for judicial review proceedings in relation to the third defendant’s power under s 62(1) and (1A), which are also relevant to the plaintiff’s challenge to the fourth defendant’s decision. Those submissions will be summarised in dealing with grounds 1 and 2 below. The first defendant’s submissions as to “material effect” under grounds 1 and 2 are also applicable (although in the particular context of contentions advanced by the first defendant with respect to grounds 3 and 4).

11. [104]

    The written submissions of the first defendant as to grounds 3 and 4 were as follows:

12. [105]

    It was accepted that s 62(1)(b) does not impose the strictures of s 62(1)(a). Thus, the fourth defendant had a broad discretion.

13. [106]

    Nonetheless, the fourth defendant did not have an unfettered discretion as he was bound to the objects of the Act and its scope and purpose. Further, the application by the plaintiff was based upon the evidence of “additional relevant information” about an injury said to have a material effect for the purposes of s 62(1A). The material before the fourth defendant was essentially the same. The provisions of s 62(1A) were only examined by the fourth defendant because of the nature of the application he had before him. However, the fourth defendant never formally applied s 62(1A).

14. [107]

    The fourth defendant did not misconstrue the notion of his own jurisdiction. If he did the decision would be quashed and the matter remitted. However, he did not impose a “cap” on the matters he was required to consider. The fourth defendant incorporated the reasoning of the third defendant and then added his own observations. He did deal separately with the issues.

15. [108]

    Nonetheless, it was contended, if the third defendant’s decision is bad at law then so too must the fourth defendant’s decision be bad in law. The “mentioning” of the third defendant’s decision in the fourth defendant’s decision must result in its incorporation in the fourth defendant’s decision and, in that event, vitiated that decision as well.

16. [109]

    The correct legal test for use in judicial review proceedings as to the third defendant's power in s 62 of the Act, requires an examination of the test of "satisfaction" of the third defendant as to the facts and matters referred to in sections 62(1) and (1A).

17. [110]

    Judicial review of that "satisfaction" decision is, on the authorities, limited, it was submitted, to the following grounds of judicial review:

    1. (1)

       Whether the determination was irrational, illogical and not based on findings or inferences of fact supported by logical grounds (QBE Insurance (Australia) Ltd v Miller (2013) 67 MVR 322; [2013] NSWCA 442 (“Miller”) at [36] (per Basten JA));

    2. (2)

       Whether the opinion was formed or reached by taking into account irrelevant considerations, the opinion has not been lawfully formed or the basis for the power is absent (The Queen v Connell; Ex parte Hetton Bellbird Collieries Ltd (1944) 69 CLR 407; 18 ALJR 205; [1944] HCA 42 (“Hetton Bellbird Collieries”) at 432 (per Latham CJ);

    3. (3)

       Whether the opinion was formed or reached by misconstruing the terms of the relevant legislation, the opinion has not been lawfully formed or the basis for the power is absent (Hetton Bellbird Collieries at 432);

    4. (4)

       Whether the opinion was arbitrary, capricious, irrational, or not bona fide, the basis for the power is absent (Hetton Bellbird Collieries at 432);

    5. (5)

       Whether the opinion can be described as manifestly unreasonable or irrational and otherwise demonstrates error of law (Miller at [56]);

    6. (6)

       If the result appears to be unreasonable in the legal sense (Avon Downs Pty Ltd v Federal Commissioner of Taxation (1949) 78 CLR 353; 23 ALJR 322; [1949] ALR 792 (“Avon Downs”), cited in Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611; [2010] HCA 16 (“SZMDS”) at [104]);

    7. (7)

       If the Court can see that the decision maker in some way must have failed in the discharge of his or her exact function (Avon Downs, cited in SZMDS at [104]; and Minister for Immigration and Citizenship v Li (2013) 249 CLR 332; [2013] HCA 18 (“Li”) at [85]); or

    8. (8)

       Whether the opinion involves legal unreasonableness (within the meaning in Li).

18. [111]

    Further, as to questions of legal principles, the first defendant submitted:

19. [112]

    The first defendant submitted, as to the application of those principles, as follows:

20. [113]

    It was also submitted there is a distinction between “medical” and “psychological” assessments under the Act. There can be no aggregation of the two elements.

21. [114]

    Associate Professor Myers is a medical assessor. He is not able to diagnose a pain disorder, which is a psychiatric condition. That is the province of Dr Rose, who diagnosed that disorder and major depressive and post-traumatic stress disorders.

22. [115]

    In Wingfoot Australia Partners Pty Ltd v Kocak (2013) 252 CLR 480; [2013] HCA 43 (“Wingfoot”) at [44], [55] and [56] it was found that a medical assessor must make his/her own assessment. Dr Rose did not have Associate Professor Myers’ report but that made no difference because he made his assessment based on his own examination, the history he took and the documentation he examined which revealed many pre-existing injuries.

23. [116]

    Dr Rose’s report showed that he reviewed pre-existing physical and mental injuries. The plaintiff does not identify how the receipt of the report of Associate Professor Myers (or Dr Mitchell) could alter the conclusions Dr Rose reached on that foundation.

24. [117]

    As for Ms Francke’s clinical notes, that material only shows that problems suffered by the first defendant existed three years prior to the motor vehicle accident.

25. [118]

    It was submitted that, in the exercise of its discretion, the Court should consider, the futility of any further proceedings being brought by the plaintiff before the third and fourth defendants: see Futuris at [88]-[92].

26. [119]

    The plaintiff would need to establish that it was possible to change the assessment of Dr Rose from 50% Whole Person Impairment to that of 10% or less (see ss 131 and 133 of the Act).

27. [120]

    The plaintiff has not and could not establish that such an outcome might arise out of the grant of relief sought in this matter.

28. [121]

    Further, at no time in the proceedings before the statutory authorities, did the plaintiff, or its legal advisers, commission any duly qualified medical opinion that would have provided an arguable basis for the SIRA officers to have found a favourable decision may have been provided on the “material effect” argument.

29. [122]

    The plaintiff neither sought to provide Associate Professor Myers’ report to Dr Rose nor make an application under s 63 of the Act as to an error in a material respect.

Plaintiff’s Reply Submissions

1. [123]

   There is no statutory basis for the contention that, once the provisions of s 62(1)(b) were activated, the third defendant’s decision was spent or unassailable. Wingfoot does not assist the first defendant and does not mean that the Certificate of Dr Rose may not be revisited. Otherwise s 62(1)(a) would have no effect.

2. [124]

   The authority in Miles is contrary to the defendant’s case and stands for:

   1. (1)

      The decision of the third defendant is justiciable; and

   2. (2)

      Functus officio is not relevant because the decision under review was not a final operative decision. The third defendant was not functus officio.

3. [125]

   Both of the decisions of the third and fourth defendants were made under different provisions and continue to have force.

4. [126]

   The first defendant does not contend that the third defendant’s decision was “spent” when it made the further application under s 62(1)(b) of the Act.

5. [127]

   The fourth defendant did no more than consider the third defendant’s decision. In any event, if he conducted his own assessment, he wrongly felt himself confined by s 62(1A).

6. [128]

   If Associate Professor Myers’ certificate was before Dr Rose, it was contended, two of three diagnoses may have disappeared.

7. [129]

   The remaining diagnosis of post-traumatic stress disorder may well have led to a percentage of permanent impairment of less than 10%.

8. [130]

   Section 63 was not apposite. The issue was not one of an error on the face of the Certificate of Dr Rose but one arising from Dr Rose not considering the Certificate of Associate Professor Myers because it was not provided to him. The issue was Dr Rose did not have before him some relevant matters.

9. [131]

   As to the complaint that the plaintiff did not insist on the Certificate of Associate Professor Myers being provided to Dr Rose, it was contended that ordinary practice in the MAS system would have resulted in Associate Professor Myers’ assessment, in that respect, being provided.

CONSIDERATION

1. [132]

   The decisions of the third and fourth defendants arose in the context of a medical dispute between the plaintiff and the first defendant as to whether the degree of permanent impairment of the first defendant, as a result of any injury caused by the motor vehicle accident, exceeded 10% (see s 58(1)(d) of the Act).

2. [133]

   The resolution of a medical assessment matter of that kind (“the matter”) is conferred upon medical assessors, subject to control exercised by a court under s 61(4) and (6) of the Act: Miller at [20]. The matter was referred to medical assessors Associate Professor Myers and Dr Rose, who each made separate assessments and entered certificates (see s 61(1)), which were conclusive evidence of the matters certified in any court proceedings or in any assessment by a Claims Assessor in respect of the claim concerned (s 61(2)).

3. [134]

   Section 62(1) provides that a matter referred for assessment under Pt 3.4 may be “referred again” on one or more further occasions by a party to a medical dispute upon the ground that there was, inter alia, “additional relevant information about the injury”.

4. [135]

   The plaintiff sought that the matter be referred again for “assessment” on the ground that there existed the additional information. The third defendant determined that each such piece of information met the description of being “additional relevant information” for the purposes of s 62(1A). No challenge is brought to that determination. Nor is there any challenge to the certificate issued by Associate Professor Myers.

5. [136]

   In substance, the third defendant refused to “refer again” the matter under s 62(1)(a) upon the basis of the additional relevant information because that information was, having regard to s 62(1A) of the Act, not such as to be capable of having a material effect on “the outcome of the previous assessment”, namely Dr Rose’s finding of a 50% impairment arising from three psychiatric injuries, namely, major depressive disorder, pain disorder and chronic post-traumatic stress disorder.

6. [137]

   Such a determination by the third defendant is amenable to the supervision of this Court: Miles at [46] and [47] (per Hoeben CJ at CL).

7. [138]

   There was a dispute as to the nature of the fourth defendant’s determination under s 62(1)(b) earlier described in the judgment. However, it was common ground that, at least, he referred to the third defendant’s decision in reaching his decision. In fact, he reviewed and, in my view, expressly accepted the decision of the third defendant.

8. [139]

   Returning then to the third defendant’s decision, I agree with the first defendant that the correct legal test in the context of judicial review proceedings as to the third defendant’s powers under s 62 of the Act requires an examination of the test of “satisfaction” of the third defendant as to the facts and matters referred to in ss 62(1) and (1A): Miller at [35]; Henderson v QBE Insurance (Australia) Ltd (2013) 66 MVR 69; [2013] NSWCA 480 at [51] (per Beazley P); Insurance Australia Ltd t/as NRMA Insurance v Parisi [2014] NSWSC 1248 at [37], [38] and [44] (per Campbell J). There was no dispute as to the available grounds for judicial review in that context (as set out at [110] above) and they may be considered broadly appropriate.

Supplementary Submission of the Defendant

1. [140]

   That is an appropriate juncture to consider the first defendant’s supplementary submissions that the third defendant’s decision was not amenable to judicial review because the plaintiff had made an application under s 62(1)(b).

2. [141]

   In my view, the first defendant’s contentions, in that respect, must be rejected for the following reasons:

   1. (1)

      As the passage from Miles (relying on Rodger v De Gelder (2011) 80 NSWLR 594; [2011] NSWCA 97 (“Rodger”) at [70] and Hot Holdings at 159) demonstrates, the decision of the third defendant is justiciable. Specifically, the decision is amenable to an order in the nature of certiorari.

   2. (2)

      Neither a decision of the third defendant or the fourth defendant constituted, as described in Hot Holdings, the ultimate step in the relevant process (see Rodger at [113] per Macfarlan JA, with whom McColl JA agreed). Neither were final operative decisions (Miles at [49]). Rather, the third and fourth defendants served a gateway function for filtering applications for further assessment (Miller at [37]), which were justiciable in the manner described above because they affected legal rights, respectively. A determination under s 62(1)(b) has no priority over a determination made under s 62(1)(a). The fourth defendant has no supervisory role with respect to decisions of the third defendant. A determination under s 62(1)(b) does not consist of an appeal of a decision under s 62(1)(a).

   3. (3)

      The plaintiff was correct to contend that there is no statutory basis for the contention of the first defendant that the third defendant’s decision was spent upon an application being brought under s 62(1)(b). The determinations made under s 62(1)(a) and (b) are made by officers holding different positions exercising powers under different provisions which attract different requirements (as I will discuss below under grounds 3 and 4).

3. [142]

   Before turning to the particular grounds of judicial review, reference may be made to the principles governing judicial review in the present context.

4. [143]

   The first defendant referred to those principles without dispute by the plaintiff. I have earlier summarised the first defendant’s submission as to those principles and will not repeat them. Rather, I will supplement that discussion by reference to some passages from Miller, Hetton Bellbird Collieries and Avon Downs, referred to in that summary.

5. [144]

   In Miller, Basten JA stated, after referring to the nature of a decision made under s 62(1)(a) and (1A), the standard of judicial review was as follows (at [36] and [56]):

6. [145]

   In Hetton Bellbird Collieries, the Court considered the operation of the National Security (Economic Organisation) Regulations which provided that an Industrial Authority may alter a rate of remuneration “with the approval of the Minister, if the Industrial Authority, is satisfied that the rates of remuneration… are anomalous”. It was held that an Industrial Authority is not “satisfied” within the meaning of the Regulation, so as to found its authority to alter existing notes, if its opinion is based upon a misconception of the Regulation.

7. [146]

   Latham CJ, in that respect, observed (at 432):

8. [147]

   Reference was also made to the judgment of Dixon J in Avon Downs, which was extracted by Crennan and Bell JJ in SZMDS at [104] as follows:

9. [148]

   The first defendant contended that the fourth defendant did not limit the matters he was required to consider to a review of the third defendant’s decision or the application of s 62(1A).

10. [149]

    I do not accept that submission. On one view of the reasons given in the fourth defendant’s decision, he confined himself to a review of the third defendant’s decision to determine if she was correct in the decision she had reached under s 62(1)(a). That approach springs out of the first sentence of the reasons (which expressly refers to the fourth defendant’s agreement with the third defendant) and the second paragraph which appears to provide his reasons for that concurrence. On the other hand, and in any event, it is clear by the second paragraph that the decision hinges entirely upon a determination as to whether or not the plaintiff had met the requirements of s 62(1A). It is true the fourth defendant only referred to s 62 in the final sentence of his decision, but he endorsed the third defendant’s decision (which ultimately turned upon the application of s 62(1A)) and made express reference to “a material effect” in the second paragraph of his decision.

11. [150]

    The fourth defendant relied upon no other reasons than those discussed above in reaching his decision.

12. [151]

    In approaching his determination in that way, the fourth defendant misconceived the terms of the legislative provision in which his power resided. That was an error of law.

13. [152]

    The discretion residing in s 62(1)(b) is wide and limited only to the scope and purpose of the Act: Trazivuk v Motor Accidents Authority of New South Wales (2010) 57 MVR 9; [2010] NSWCA 287 at [77] (per Giles JA).

14. [153]

    In Zurich Australian Insurance Ltd v Mestric (2016) 76 MVR 1; [2016] NSWSC 187 at [26], M Adams J pronounced upon some characterization of the discretion as follows:

15. [154]

    The fourth defendant did not have to be satisfied that the material relied upon by a party to a medical dispute constituted additional relevant information about an injury for the purposes of s 62(1)(a) or is capable of having a material effect upon the outcome of a medical assessment in order to refer again the matter for medical assessment. He was certainly not confined to those considerations. Section 62(1A)) operates upon the exercise of power under s 62(1)(a) and not s 62(1)(b) given that the operation of the provision is confined to circumstances where a party to a medical dispute relies upon the grounds for a further referral under s 62(1)(a).

16. [155]

    The first defendant contended that, if the fourth defendant had confined his attention in the manner contended for by the plaintiff, that course had only been taken due to the nature of the application brought by the plaintiff. There are two difficulties with that submission.

17. [156]

    First, it does not fairly reflect the submissions of the plaintiff to the fourth defendant; those submissions traversed a broader subject matter as earlier extracted in this judgment (as will be later discussed in this judgment).

18. [157]

    Secondly, the fourth defendant did not express himself as being confined to the four walls of the plaintiff’s submissions (if they were limited in the manner suggested by the first defendant) but confined himself to the subject areas to which I have referred and, in doing so applied the wrong test and asked himself the wrong question; namely, whether the application for a further medical assessment should or should not have been granted under s 62(1)(a) and (1A), or in accordance with the requirements of those provisions.

19. [158]

    The fourth defendant was required to consider, inter alia, whether as a matter of fairness to the parties, and having regard to the scope and purpose of the Act, he should refer again the matter for medical assessment based upon the additional information.

20. [159]

    It follows that grounds 3 and 4 should be accepted.

21. [160]

    The implication of that finding for the disposition of the summons should await the consideration of the remaining grounds and the question of futility. In the former respect, I note that the first defendant conceded that if error was found in the third defendant’s discussion then that must necessarily vitiate the fourth defendant’s decision. I will find that the plaintiff has established ground 2. In the latter respect, it may be observed that the Court has a discretion to refuse certiorari where the grant of such relief would be useless (or nearly so) or inefficacious (Mark Arson, Matthew Groves and Greg Weeks, Judicial Review of Administrative Action and Government Liability (Thomson Reuters, 6th ed, 2016) at [17.140]. It must further be borne in mind that the orders in the nature of certiorari sought are directed to a remitter to the third and fourth defendants so they may determine whether to refer the matter again for medical assessment based upon the additional information. The first defendant bears the onus of demonstrating futility.

22. [161]

    The plaintiff challenged the decision of the third defendant refusing the application by the plaintiff to refer again for medical assessment upon the basis that the third defendant was not satisfied the additional information, which was found by the third defendant to be additional relevant information for the purposes of s 62(1)(a), would be such as to be capable of having a material effect on the outcome of the previous assessment.

23. [162]

    The plaintiff sought relief in the nature of certiorari, setting aside or declaring invalid the third defendant’s decision in that respect.

24. [163]

    Bearing in mind the nature of the relief sought, it is useful to refer to a passage from the judgment of Basten JA (with whom McColl JA agreed) in Allianz Australia Ltd v Cervantes (2012) 61 MVR 443; [2012] NSWCA 244 (“Cervantes”) at [9]-[12]:

25. [164]

    There was no dispute in this matter as to the receipt of the reasons for the third defendant’s decision with respect to grounds 1 and 2 (and the fourth defendant’s decision, in the case of grounds 3 and 4); the additional information; or the submissions of the plaintiff and first defendant to the third and fourth defendants, respectively. Some brief further reference may nonetheless be made as to the tender of that material.

26. [165]

    The reasons of the third defendant (and the fourth defendant in the case of grounds 3 and 4) were available. Reliance was placed upon them in order to demonstrate what the third defendant (and the fourth defendant in the case of grounds 3 and 4) had or had not taken into account. No attention was directed by the parties to s 69(4) of the Supreme Court Act (which was applicable) but it may be mentioned that the plaintiff also relied on jurisdictional error with respect to ground 2.

27. [166]

    The additional information was available with respect to grounds 1 and 2 insofar as it was adduced to provide a factual basis for a pleading that there was a failure to take into account a relevant consideration.

28. [167]

    The submissions of the parties were available to establish the factual foundation for the plaintiff’s contention that the issues raised for judicial review had been agitated with the third defendant (particularly in the case of grounds 3 and 4, where the plaintiff made contentions not only directed to the significance of the additional information but as to the need to have regard to the broader question of fairness.

29. [168]

    Having regard to the manner in which the plaintiff prosecuted grounds 1 and 2, it is appropriate to briefly refer to the relevant principles governing reliance upon a failure to take into account a “relevant consideration” ground in judicial review.

30. [169]

    Reference should be firstly made to the judgment of Mason J in Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24; [1986] HCA 40 as to the ground of failure to take into account a relevant consideration. His Honour’s judgment, in that respect, was as follows (at 39-41):

31. [170]

    Attention should also be directed to Cervantes. That matter concerned, inter alia, a contention that there was an omission to make reference to a statement of a medical practitioner. The defendant relied upon [15]-[16] and [19]-[22] of the judgment. I propose to extract, as applicable, [15]-[17] and also [19]-[22]:

32. [171]

    As noted in Cervantes, judicial review predicated upon a failure to take into account a relevant consideration required the plaintiff to state the legal obligation on which it relied in order to identify what were mandatory factors to be taken into account for that purpose.

33. [172]

    The discussion of that issue can momentarily await discussion whilst consideration is given to what, in substance, the plaintiff contended was the “relevant consideration”, namely, the third defendant failed to take into account and whether such consideration was or was not, in fact, taken into account by the third defendant as well as whether the failure to take into account a relevant consideration ground, in substance raised by the plaintiff, was amenable to judicial review in the manner proposed by the defendant (this latter discussion will merge with the discussion of the nature of legal obligations).

34. [173]

    It was not suggested by the plaintiff that the third defendant’s approach to the question before her constituted an error of law insofar as she found that the matter may be “referred again” for further assessment as the plaintiff had produced further additional relevant information (per s 62(1)(a)) but that it was not appropriate to do so, having regard to s 61(1A), because the additional information was not such as to be capable of having a material effect on the outcome of the previous assessment of Dr Rose.

35. [174]

    Nor was it submitted that the third defendant failed to expressly refer to the Certificate of Associate Professor Myers and the report of Dr Mitchell or properly identify their conclusions.

36. [175]

    It is apparent that the third defendant recognised that Associate Professor Myers found not only that the first defendant had “long standing” cervical and lumbosacral symptoms prior to the motor vehicle accident but that he accepted the injuries sustained by the first defendant in the motor vehicle accident were confined to soft tissue injuries to the neck and the surgery to the first defendant’s neck by Dr Dandie was unrelated to the motor vehicle accident. The third defendant identified that Dr Mitchell considered there was “little direct relationship between the first defendant’s current reported physical symptoms” and the motor vehicle accident. This was a recognition that Associate Professor Myers and Dr Mitchell had found the first defendant’s neck symptoms were unrelated to the motor vehicle accident.

37. [176]

    Further, it was not suggested that the third defendant had failed, in that respect, to take into account that Dr Rose had found the previous complaints had been aggravated by the motor vehicle accident to the extent that Dr Rose diagnosed a pain disorder. The third defendant recognised that “all of the psychiatric diagnoses [Dr Rose] made were caused by the accident”.

38. [177]

    Rather, it appears that, when the plaintiff referred to the third defendant failing to have “regard to” a relevant matter or, in its written submissions (at para 45), failing to take “this consideration into account”, the plaintiff was contending that the third defendant had failed to take into account that the conclusions of, in particular, Associate Professor Myers, were evidence (conclusive in the case of the Certificate of Associate Professor Myers) that the first defendant’s neck injuries were unrelated to the motor vehicle accident and, in the result, such determination “undermined” Dr Rose’s diagnosis of a pain disorder. In this light, it was contended Dr Rose wrongly made a finding that the motor vehicle accident aggravated the defendant’s pain and required a diagnosis of a pain disorder. The same considerations “almost certainly”, it was contended, affected the diagnosis of major depressive disorder.

39. [178]

    The defendant contended that the critical factor relied upon by the third defendant in reaching her decision (see para 17), that Dr Rose’s opinion proceeded upon the basis of pre-existing (neck) symptoms, was beside the point (and did not grapple with the true issue) as Dr Rose had found the pain symptom aggravated by the motor vehicle accident and Associate Professor Myers (and Dr Mitchell) found that was not the cause.

40. [179]

    In my view, the third defendant did take into account that Associate Professor Myers (and Dr Mitchell) found that the post-accident neck symptoms were unrelated to the motor vehicle accident. When properly understood, the foundation for the plaintiff’s challenge based on a relevant consideration ground for judicial review with respect to ground 1, was not that the third defendant failed, as such, to have regard to Associate Professor Myers (and Dr Mitchell) finding that the neck symptoms were unrelated to the motor vehicle accident but rather constituted an impermissible challenge to how such considerations were taken into account and what weight they were to be accorded.

41. [180]

    This conclusion is a fortiori in the case of the issues raised with respect to Ms Francke’s clinical notes. The third defendant identified that the plaintiff was relying upon the notes to establish that there was a pre-existing psychiatric injury. She found that Ms Francke’s clinical notes were not objective evidence of a systematic impairment at the time of the motor vehicle accident as, inter alia, they were three years old. The plaintiff contended this misunderstood its case, on the basis that the wrong history was given to Dr Rose (by the first defendant), and that Ms Francke’s clinical notes had a capacity to persuade Dr Rose that there was an underlying psychiatric condition prior to the motor vehicle accident in order to demonstrate that Dr Rose’s estimate of psychiatric impairment may have been less, if possessed of the additional information. The plaintiff’s submissions are clearly directed to the weight that the defendant should have attached to the notes in evaluating whether that information was capable of having a material effect on the outcome of Dr Rose’s assessment.

42. [181]

    This discussion brings attention to the identification of the precise nature of the legal obligation by the plaintiff as to a failure to take into account the additional information. Separate attention will need to be given in that respect to grounds 1 and 2.

43. [182]

    The plaintiff offered no authority to support its approach to ground 1, namely, that the Court may have regard to the matters sought to be relied upon by the plaintiff in support of judicial review on a relevant consideration ground.

44. [183]

    As to ground 2, the plaintiff relied upon legal and jurisdictional error. No authority was directly referred to in this respect although Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 197 ALR 389; 77 ALJR 1088; [2003] HCA 26 (“Dranichnikov”) appeared on the list of authorities.

45. [184]

    The plaintiff’s oral submissions were replete with references generally to the third defendant’s failure to engage with the submissions of the plaintiff. Employing the approach in Dranichnikov, it would appear the plaintiff was contending that the third defendant failed to respond to a substantial, clearly articulated argument relying upon additional facts although there was no statement of a ground or contention that there was a denial of natural justice.

46. [185]

    The plaintiff relied upon jurisdictional error, in this respect, but did not refer, for example, to the judgment of Gaudron J in Re Minister for Immigration and Multicultural Affairs; Ex parte Miah (2001) 206 CLR 57; [2001] HCA 22 at [81], referred to in Cervantes, in which there was discussion of error of that kind being established where there was a clear case of constructive failure to exercise jurisdiction (in that matter the Court considered whether there had been such an error based on a failure to consider Mr Miah’s application; a failure that could only have been reached by a misunderstanding of what was involved in the “Convention definition of ‘refugee’”).

47. [186]

    Two further matters should be mentioned in that light both of which derive from Cervantes (see [21] and [22]). In summary:

    1. (1)

       A constructive failure to exercise jurisdiction may arise because a statutory conferral of power, in this case s 62(1A), has not been exercised according to its terms.

    2. (2)

       There is no obligation to consider every piece of evidence presented: see also Reece v Webber (2011) 192 FCR 254; [2011] FCAFC 33 at [65].

48. [187]

    Whilst I do not consider the third defendant was required to articulate in greater detail in her reasoning the effect of the Certificate of Associate Professor Myers (or Dr Mitchell’s report) in determining the application, I consider that the third defendant’s reasoning (at para 17 of her decision) demonstrates a failure to engage with a clearly articulated argument by the plaintiff made to the third defendant or, for that matter, the substance of the plaintiff’s application.

49. [188]

    The third defendant’s statement that Dr Rose took into account the first defendant’s “pre-accident injuries” is clearly central to the third defendant’s rejection of the application. It appears from the same paragraph (para 17) of the decision, the third defendant did so in the light, as she mentioned, of Dr Rose’s finding that the previous complaints of pain had been aggravated by the motor vehicle accident. That juxtaposition of those reasons demonstrates that the third defendant failed to appreciate or did not deal with the plaintiff’s contention that the pre-existing symptoms of neck pain had not, in accordance with the Certificate of Associate Professor Myers (and Dr Mitchell’s report), changed.

50. [189]

    The third defendant found that Dr Rose was aware of the first defendant’s pre-accident injuries and took them into account. However, the plaintiff’s contention to the third defendant was not that Dr Rose was unaware of the pre-accident injuries but that the medical opinions which were then available by the Certificate of Associate Professor Myers (the Certificate of Associate Professor Myers was not taken into account by Dr Rose because it had not been put to Dr Rose) and the report of Dr Mitchell were to the effect that no aggravation was caused by the accident. It was contended by the plaintiff to the third defendant that, so far as pain disorder was concerned (and the major depressive disorder so far as it related to chronic pain – see extracted para 99 at [54] of this judgment), the respective assessments were contradictory. For present purposes, whether that was strictly correct or an overstatement is beside the point. The essence of the plaintiff’s case here, with which I agree in relation to ground 2, is that the contention was not addressed by simply acknowledging that Dr Rose was aware of pre-existing complaints.

51. [190]

    This failure is illustrated by the third defendant’s purported recitation of the plaintiff’s case at the outset of her reasons.

52. [191]

    The third defendant stated that one of the grounds relied upon by the plaintiff was that Dr Rose had accepted that the plaintiff’s “chronic pain and pain disorder were caused” by the motor vehicle accident. The plaintiff correctly complained that the third defendant had understated the position and that its case was that “the chronic pain and pain disorder were wholly a result of pre-existing physical symptoms” and that “the accident did not correlate to any physical symptoms that could lead to a diagnosis of chronic pain and pain disorder”.

53. [192]

    For completeness, I note that I do not consider the distinction sought to be drawn by the first defendant between a “primary psychiatric injury” found by Dr Rose and the physical or medical opinion expressed by Associate Professor Myers alters that conclusion. Dr Rose’s diagnosis of a pain disorder was based upon aggravated chronic pain experienced by the first defendant said to be derived from injuries sustained in the motor vehicle accident. Whilst the diagnosis of pain disorder was psychiatric in nature, the finding as to aggravation resulted from reporting by the first defendant of her experiencing aggravated pain in her neck as a result of the motor vehicle accident.

54. [193]

    Further, I have doubts as to whether these finding extend to the diagnosis of major depressive disorder. Whilst the plaintiff asserted to the third defendant (and in these proceedings) that “undoubtedly” the wrong assumption as to the cause of ongoing neck pain vis-a-vis the motor vehicle accident was a significant contributor to the major depressive disorder diagnosis, there was little foundation beyond speculation, for that contention.

55. [194]

    Dr Rose specifically referred to a pain disorder deriving from an aggravation of symptoms of chronic pain after the motor vehicle accident. There is no counterpart linkage in his report as to major depressive disorder. It is true that Dr Rose found that all psychiatric diagnoses were relevant to the motor vehicle accident. However, in dealing with those diagnoses his approach was clearly different as between the basis for his diagnosis of pain disorder and the diagnosis of major depressive disorder and post-traumatic stress disorder. As to the latter two diagnoses, he found “the severity of the [motor vehicle accident] was clearly such as to precipitate the post-traumatic stress disorder and major depressive disorder”. That conclusion is to be distinguished from the basis for his diagnosis of pain disorder (deriving from the same sentence of his report, see [48] above) which was aggravation of pain caused by the motor vehicle accident.

56. [195]

    Even if Dr Rose’s assessment as to major depressive disorder were to remain unaltered, if the fourth defendant (or third defendant) were to refer again for medical assessment based on the aforementioned additional information, bearing in mind the above considerations, the first defendant has not demonstrated that any such further assessment would be useless or inefficacious. A re-assessment which eliminated, for example, the pain disorder diagnosis would be significant.

57. [196]

    In any event, the role of a certificate arising from any further medical assessment may not merely establish whether the 10% threshold is met. It is also conclusive of the matters certified pursuant to s 61(2) of the Act. If a further certificate were to reduce the percentage of impairment because a condition is no longer found to result from the motor vehicle accident but still leaves the first defendant above the threshold this is of some utility because the reduction of scope for court proceedings or assessment by a Claims Assessor.

Conclusion

1. [197]

   The plaintiff has established grounds 2, 3 and 4 as expressed in the amended summons. The decision of the third defendant and the decision of the fourth defendant should be quashed. The matter will be remitted to a Proper Officer for consideration under s 62(1)(a) of the Act but no remitter will be made to the Claims Assessor. If required, any further application may be then made under s 62(1)(b) of the Act by the plaintiff in due course.

2. [198]

   Costs shall be reserved.

3. [199]

   The plaintiff shall bring in short minutes of order reflecting this judgment. In the event there is an agreement as to costs, that agreement may be reflected in the short minutes of order.

ORDERS

1. [200]

   The Court makes the following orders:

   1. (1)

      The plaintiff shall bring in short minutes of order reflecting this judgment within 7 days of the publication of this judgment.

   2. (2)

      Costs reserved, subject to any agreement as to costs.