Boyce v Allianz Australia Insurance Ltd

1. [1]

   FAGAN J: The plaintiff has applied to the Court for judicial review of a decision made by a medical review panel under s 63 of the Motor Accidents Compensation Act 1999 (NSW) (“the Act”). On 31 August 2016 the Panel issued a Review Panel Certificate concerning the extent of the plaintiff’s whole person impairment resulting from bladder symptoms. By this Certificate, a Medical Assessment Certificate of Doctor M J Rochford dated 6 May 2016 was revoked and replaced. A Review Combined Certificate (concerning all aspects of the plaintiff’s claimed impairment) was issued by the Review Panel on 5 September 2016.

2. [2]

   The whole person impairment of the plaintiff with which these certificates are concerned resulted from a motor vehicle accident on 8 June 2012. The driver at fault in the accident was Ms LTR Edwards. Liability has been admitted. As the plaintiff’s claim for damages is not to be litigated, the parties to the assessment process under the Act are the plaintiff and Ms Edwards’ compulsory third-party insurer, Allianz Australia Insurance Ltd (“Allianz”): see ss 57 and 58 of the Act.

3. [3]

   Ms Edwards is named as first defendant in the summons by which proceedings were commenced in this Court and the State Insurance Regulatory Authority (“the Authority”) is named as second defendant. The Authority administers the Act. The third-party insurer, rather than Ms Edwards herself, is the necessary first defendant. An order will be made for substitution of Allianz as first defendant pursuant to rr 6.24 and 6.29 of the Uniform Civil Procedure Rules.

4. [4]

   The relief sought in the summons is:

   1. (1)

      An order in the nature of certiorari or, alternatively, a declaration setting aside or declaring invalid the Review Panel Certificate dated 31 August 2016 issued by the Motor Accidents Medical Assessment Service.

   2. (2)

      An order of the like kind in relation to the Review Combined Certificate dated 5 September 2016.

   3. (3)

      An order that the review of the Certificate of Doctor Michael Joseph Rochford dated 6 May 2016 be referred to the Motor Accidents Medical Assessment Service for referral to a newly constituted medical review panel.

   4. (4)

      In the alternative, a declaration that the Certificate of Dr Michael Joseph Rochford dated 6 May 2016 is valid.

   5. (5)

      Costs.

5. [5]

   The grounds upon which this relief is sought can be better understood and the applicable legal principles can be more ready identified if the history of the plaintiff’s claim and of the assessment of her degree of impairment is first summarised. Broadly, the grounds raise a complaint that the review panel should have re-examined her for the purposes of carrying out their review and that they failed to do so.

History of the plaintiff’s claim and its assessment

1. [6]

   The plaintiff claims to have suffered in the accident an injury to her bladder which she says has resulted in urgency and frequency of micturition and difficulty voiding. She claims that injuries to her back, pelvis and colon were also sustained, as well as abdominal scarring. Allianz disputes that the plaintiff has suffered greater than 10% whole person impairment as a combined result of the physical injuries caused by the accident, 10% being the threshold for an award of non-economic loss: s 131 of the Act. The dispute about extent of impairment was first referred to the Medical Assessment Service of the Authority pursuant to s 60 (1) of the Act in an application lodged by the plaintiff on 13 March 2015.

2. [7]

   The range of injuries alleged by the plaintiff is such that more than one assessment was required, by separate assessors in different disciplines appointed by the Medical Assessment Service pursuant to s 60(2). In August and September 2015 two Medical Assessment Certificates were issued by assessors to the effect that injuries to the plaintiff’s back, pelvis and colon have given rise to 7% whole person impairment and that her abdominal scarring has given rise to a further 1% of impairment.

3. [8]

   Dr Rochford, urologist, was appointed as an additional assessor. On 6 August 2015 he issued a certificate following an examination of the plaintiff. At that date the doctor was not able to assess a percentage of whole person impairment caused by the condition of the plaintiff’s bladder. He considered that a urodynamic study or other urological investigation was required in order to understand her symptoms. The doctor concluded that the plaintiff had not reached maximal medical improvement. As a result the plaintiff was referred by her general practitioner to a urological surgeon, Dr Danielle Delaney, for further investigation and treatment.

4. [9]

   The plaintiff consulted Dr Delaney on 2 September 2015. Urodynamic studies were undertaken, medication was trialled and the plaintiff was referred to a pain specialist. By letter of 18 September 2015 the plaintiff’s solicitor forwarded to the Medical Assessment Service Dr Delaney’s clinical file. On 8 March 2016 the solicitor forwarded updated clinical records of Dr Delaney, which included the results of urinary flow studies.

5. [10]

   By May 2016 Dr Rochford had received the reports of Dr Delaney and the results of the flow studies. On 3 May 2016 Dr Rochford took a further history from the plaintiff concerning, in particular, any benefits she had gained from medication prescribed by Dr Delaney. In the Medical Assessment Certificate which he subsequently issued on 6 May 2016, he recorded the plaintiff’s history up to that point as follows:

6. [11]

   Dr Rochford’s conclusions, so far as presently relevant, were as follows:

Referral to Review Panel and plaintiff’s request to be examined

1. [12]

   On 4 July 2016 Allianz applied to the proper officer of the Authority, pursuant to s 63(1) of the Act, for referral of Dr Rochford’s certificate of 6 May 2016 to a review panel of medical assessors. On 22 July 2016 the plaintiff lodged with the proper officer a reply to this application. Both the application and the reply were accompanied by written submissions. The proper officer found that Dr Rochford had not exposed his path of reasoning in that he had “given no indication as to why the injury is 10% whole person impairment as opposed to any other available percentage in the range”.

2. [13]

   By letter of 10 August 2016 the proper officer advised the parties that a review panel would be convened and a referral would be made. The letter concluded with this notification regarding re-examination of the plaintiff:

3. [14]

   By letter of 11 August 2016 addressed to the Authority’s Medical Assessment Service the plaintiff’s solicitor requested on her behalf that the Review Panel should examine her. In support of this request the solicitors wrote:

4. [15]

   A copy of this letter was sent to Allianz. Allianz did not make any submission against the Review Panel examining the plaintiff. On 16 August 2016 the plaintiff’s solicitor followed up her letter with a phone call to the Medical Assessment Service. When the officer to whom the solicitor spoke could not readily locate the letter of 11 August 2016 he requested that a further copy be sent by email. That was done immediately.

5. [16]

   The Review Panel comprised three medical practitioners. They met by teleconference on 30 August 2016 and conducted the review. They decided:

6. [17]

   The proper officer, who acted as secretary to the Review Panel, informed the plaintiff’s solicitor by email of 8 September 2016:

7. [18]

   The Crown Solicitor on behalf of the Authority subsequently acknowledged, by letter of 21 December 2016 addressed to the plaintiff’s solicitor, that:

Information considered by Review Panel

1. [19]

   The material before the Panel, as referred to in the Review Panel Certificate of 31 August 2016 and in the proper officer’s letter of 8 September 2016, was as follows:

2. [20]

   All of this material has been received in evidence on the hearing of the plaintiff’s summons. For present purposes, the documents referred to at items 1 and 5 are the most material. The documents which had been provided to Assessor Rochford included all of those which were specific to the plaintiff’s bladder symptoms, in particular the clinical files of Dr Delaney, as referred to at [9] and [10].

The Review Panel’s task and its decision

1. [21]

   Subsection (3A) of s 63 of the Act defines the function of a review panel in these terms:

2. [22]

   Giles JA elaborated the task of a panel in Mckee v Allianz Australia Insurance Ltd (2008) 71 NSWLR 609; [2008] NSWCA 163 as follows:

3. [23]

   It is apparent from the passage of the Review Panel Certificate quoted at [16] that the Panel accepted the plaintiff’s description of symptoms (that is, indications of malfunction observable by the plaintiff herself) as given to Dr Rochford and recorded in his certificate of 6 May 2016. That description was historical from the date of the accident up to the examination by Dr Rochford on 3 May 2016.

4. [24]

   The Panel “concluded that the motor vehicle crash was a cause, more than negligible, for the urinary and sexual dysfunction symptoms”. They found no impairment in the sexual organs but did accept that the plaintiff suffered from an overactive bladder which constituted an impairment:

5. [25]

   The Panel referred to the passage from the “AMA 4 Guides” which are identified and quoted at [41] and [42] below. Further reasons given by the Panel, as follows, reflect the distinction between symptoms (apparent to the plaintiff herself) and signs (objectively observable by the clinician), consistently with the usage of these terms in cl 11.3 of the AMA 4 Guides:

Guidelines bearing upon the Review Panel’s assessment

1. [26]

   Section 44(1)(d) of the Act empowers the Authority to issue guidelines with respect to, inter alia, “the procedures for the referral of disputes for assessment or review of assessments, and the procedure for assessment and review of assessments, under Part 3.4”. Under s 44(1)(d) the Authority issued Medical Assessment Guidelines which were applicable in 2016. They stipulate procedural requirements for initial medical assessments and for reviews.

2. [27]

   Section 65 of the Act includes these subsections:

3. [28]

   The guidelines referred to in subs s 65(1), to which medical assessments “are subject”, are those concerned with the procedure of assessments and reviews. The power to issue guidelines of that type is conferred by subpar (d) of s 44(1).

4. [29]

   So far as presently relevant s 133 of the Act provides:

5. [30]

   The guidelines referred to in subs s 133(2), in accordance with which an assessment “is to be made”, are those concerned with the substantive assessment of degree of impairment. The power to issue guidelines of that kind is conferred by subpar (c) of s 44(1). Permanent Impairment Guidelines were published by the Authority under s 44(1)(c) of the Act in 2007. These were applicable to the assessment of the whole person impairment of the plaintiff, both initially by Assessor Rochford and subsequently by the Review Panel.

6. [31]

   Guidelines issued under s 44(1)(c) (such as the Permanent Impairment Guidelines) and those issued under s 44(1)(d) (such as the Medical Assessment Guidelines) are collectively referred to in s 44 and elsewhere in the Act as “Motor Accidents Medical Guidelines”.

Status of guidelines under s 44 in a judicial review context

1. [32]

   Ryan v Watkins [2005] NSWCA 426 concerned a claim for public interest immunity with respect to notes and draft reasons of a medical assessor under the Act. It was relevant to the determination of the claim that the Court of Appeal should consider whether a medical assessor fell within par (e) of the definition of “Australian court” in the Evidence Act 1995 (NSW). Namely, “a person or body authorised by an Australian law, or by consent of parties, to hear, receive and examine evidence”. In that context Campbell JA (with whom Mason P and Handley JA agreed) held at [134] that the Medical Assessment Guidelines “are an Australian law”.

2. [33]

   Subsequently to that decision, single judges of the Common Law Division characterised as delegated legislation both the Medical Assessment Guidelines (made under subpar (d) of s 44(1)) and Permanent Impairment Guidelines (made, at least predominantly, under subpar (c)). Some of these single judge decisions were referred to by Giles JA in Trazivuk v Motor Accidents Authority of New South Wales [2010] NSWCA 287 at [31].

3. [34]

   In Ali v AAI Limited [2016] NSWCA 110 at [75] – [99] Leeming JA held that none of the statutory provisions under which these Motor Accidents Medical Guidelines may be issued or which bear upon their legal status “converts a guideline into delegated legislation which binds the parties or an assessor of its own force” (at [85]). His Honour considered that, rather than the guidelines issued under pars (c) and (d) of s 44(1) binding an assessor with statutory force, they give rise to “the more qualified obligation to conduct an assessment in accordance with guidelines all of which fall short of being directive”.

4. [35]

   Clause 1.3 of the Permanent Impairment Guidelines draws a distinction between clauses printed in bold which are said to be “directive as to how the assessment should be performed” and clauses not so printed which, Leeming JA observed, are to be given a force that is “something less than a ‘directive’”: [95]. His Honour noted the difference between the wording of s 65(1) (assessments are “subject to” guidelines on procedure) and the wording of s 133(2) (assessments are “to be made in accordance with” guidelines).

5. [36]

   The variations in language of the provisions which give force to the Motor Accidents Medical Guidelines under s 44 caused his Honour to draw these conclusions:

6. [37]

   In AAI Ltd trading as GIO as agent for the Nominal Defendant v McGiffen [2016] NSWCA 229 (“AAI Ltd v McGiffen”) at [57] the Court of Appeal referred to Leeming JA’s judgment in Ali v AAI Limited but deferred to another day consideration of the “correct status [of Motor Accidents Medical Guidelines under s 44] in a judicial review context”. This residual uncertainty causes no difficulty for determining the plaintiff’s present application. Whatever the legal status of the guidelines, for reasons which follow (a) they do not on their face require re-examination of the claimant by a review panel in every case and (b) in the particular circumstances of this review, consideration of the guidelines does not show that re-examination was essential to performance of the panel’s statutory function.

Procedural guidelines and Practice Note

1. [38]

   The Medical Assessment Guidelines issued by the Authority under s 44(1)(d), as applicable in 2016 (referred to at [28]), include this clause:

2. [39]

   Pursuant to s 65(2) (quoted above at [27]) the Authority issued in 2005 Practice Note 3/2005, which was applicable to the Review Panel in 2016 and included guidance in these terms:

3. [40]

   The Review Panel’s assessment of the plaintiff was “subject to” cl 16.21 of the Guideline quoted at [38], by force of s 65(1). But the evidence did not show that the Practice Note quoted at [39] constituted a guideline under s 44(1)(d) so as to govern the Panel’s procedure in the same manner.

Substantive guidelines upon which impairment was to be assessed

1. [41]

   By force of s 133(2) the assessment by Dr Rochford and, subsequently, the Review Panel’s review were “to be made in accordance with” the Permanent Impairment Guidelines 2007. The following general provisions of the Guidelines, in Chapter 1, are material to the issue to be decided on this judicial review:

2. [42]

   Clause 8.21 of the Permanent Impairment Guidelines, headed “The Urinary and Reproductive Systems” refers to Chapter 11 of the AMA 4 Guides (pp 249-262) as the basis upon which assessors (and the Panel) are required to determine whole person impairment caused by bladder symptoms. The following is the relevant part of cl 11.3, appearing in the AMA 4 Guides under the heading “Criteria for Evaluating Permanent Impairment of the Bladder”:

Grounds upon which judicial review is sought

1. [43]

   The grounds formulated in the summons as the basis on which judicial review is sought are that the Review Panel failed to re-examine the plaintiff and, in deciding not to do so, failed to advise the plaintiff of its intention to proceed without a re-examination and failed to allow her to make representations as to why she should be re-examined.

2. [44]

   These grounds are framed as if the administrative decision of which review is sought is not the ultimate determination of the Review Panel concerning the degree of the plaintiff’s whole person impairment, comprised in their Review Panel Certificate issued on 31 August 2016, but rather the anterior procedural determination, made on 30 August 2016, that they should not re-examine the plaintiff. However it is clear from the terms of the relief sought that the ultimate determination in the Certificate is the decision of which review is sought.

3. [45]

   In written and oral argument the plaintiff strayed from the grounds in the summons and broadened the basis upon she sought relief. First, the decision comprised in the Review Panel Certificate was said to be vitiated by jurisdictional error because the Panel had “failed to exercise its statutory functions” in that re-examination of the plaintiff for the purposes of the review was “statutorily mandated” and the Panel had not undertaken a re-examination.

4. [46]

   Secondly, denial of procedural fairness was alleged in relation to the decision on degree of permanent impairment because the Panel had not accorded the plaintiff “an interview and re-examination”. The plaintiff also appeared to submit that there was denial of procedural fairness, not only in not re-examining the plaintiff but also in not hearing her as to her wish to be re-examined.

5. [47]

   Thirdly, the Panel’s ultimate decision on degree of permanent impairment was said to be “legally unreasonable” according to the test in Minister for Immigration and Citizenship v Li (2013) 249 CLR 332; [2013] HCA 18 at [76]. That is, it was said to be “a decision which lacks an evident and intelligible justification”.

6. [48]

   A further ground, directed to the decision not to re-examine the plaintiff, was that the Panel had failed to take into account three relevant matters. Namely, (i) the plaintiff’s objection to the review being conducted without re-examination, (ii) the terms of the Practice Note extracted at [39] and (iii) the fact that the plaintiff had received a Botox injection on 3 June 2016 (after Assessor Rochford’s examination on 3 May 2016).

Legal principles applicable to these grounds

1. [49]

   The jurisdiction of this Court invoked by the summons is of course that conferred by s 69 of the Supreme Court Act 1970 (NSW). The relief sought is available only where error of law on the face of the record or jurisdictional error is demonstrated. The plaintiff’s grounds, even as expanded, appear to be confined to jurisdictional error.

2. [50]

   Failure to afford procedural fairness (the plaintiff’s second ground: [46]) is a recognised form of jurisdictional error: Kirk v Industrial Court of New South Wales (2010) 239 CLR 531; [2010] HCA 1; Rodger v De Gelder [2015] NSWCA 211 at [94]. If the Review Panel failed to exercise its statutory function (as alleged in the plaintiff’s first ground: see [45]), that would also be a jurisdictional error. In AAI Ltd v McGiffen [2016] NSWCA 229 at [52] the Court said:

3. [51]

   Other forms of jurisdictional error were catalogued by the Court of Appeal in Rodger v De Gelder at [95]:

4. [52]

   In Allianz Australia Insurance Ltd v Cervantes [2012] NSWCA 244 Basten JA considered 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]. His Honour (with the concurrence of McColl and Macfarlan JJA) expressed at [21] – [22] a practical limit upon what may constitute constructive failure to exercise jurisdiction:

5. [53]

   In relation to the plaintiff’s challenge to the Review Panel’s decision not to re-examine her, the Court must take into account the principle that medical assessors are entitled to rely upon their own expertise in making their assessments: Wingfoot Australia Partners Pty Ltd v Kocak (2013) 252 CLR 480; [2013] HCA 43; Frost v Kourouche (2014) 86 NSWLR 214; [2014] NSWCA 39; AAI Ltd v McGiffen at [80]. In the context of this legislation they could rely upon their own expertise in determining whether a re-examination of the plaintiff would be necessary to their task.

6. [54]

   Concerning the argument that the ultimate decision reflected in the Review Panel Certificate was “legally unreasonable” (the plaintiff’s third ground: [47]), account must be taken of the stringency of this test, as stated in Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611; [2010] HCA 16 per Crennan and Bell JJ at [130] – [131] and [135]:

First ground – failure to exercise statutory function

1. [55]

   Contrary to the plaintiff’s submission in support of her first ground (see [45]), it was not “statutorily mandated” that the Review Panel should re-examine the plaintiff. Clause 16.21.2 of the Medical Assessment Guidelines (see [38]) makes it clear that it was for the Panel members to determine, according to their respective professional opinions, whether a re-examination of the plaintiff was required. That is, whether a re-examination would provide them with information which would assist in their decision to revoke, or not to revoke, the Assessor’s certificate and, in the event of revocation, on what terms to issue a fresh certificate.

2. [56]

   Re-examination is not so inflexibly prescribed that failure to undertake it necessarily and of itself constitutes a repudiation of the statutory function. The Court of Appeal so held in Allianz Australia Insurance Ltd v Rutland [2015] NSWCA 328:

3. [57]

   The plaintiff argued that re-examination was a necessary aspect of the Review Panel’s exercise of its power in this case because there was an absence from the documents before the Panel of “any mention, let alone analysis, of the impact of the bladder symptoms on the plaintiff’s ‘daily life’”. It was submitted this deficiency necessarily had to be rectified by a further examination. Counsel’s oral argument concentrated heavily on the alleged importance of re-examining the plaintiff to hear detail of how her frequency of urination (once every one to two hours and three to four times at night) and her sense of not having voided her bladder affected her “daily life”.

4. [58]

   However, the Permanent Impairment Guidelines extracted at [41] prescribe a distinction and a relationship between the concepts of “impairment” and “disability” in cll 1.10 – 1.18. It was a matter for the Panel members whether they considered that more information about impact on the plaintiff’s “daily life” – an aspect of “disability” resulting from the alleged “impairment” – would be of any utility as a basis for reasoning back to, or inferring, the degree of “impairment”. The effect on “daily life” of having to pass urine at one to two hourly intervals and three to four times at night is self evident. It was open to the Panel to conclude, as it apparently did, that the description of symptoms said everything there was to be said about impact on “daily life” and that no elaboration would assist with inferring the level of impairment.

Second ground – failure to accord procedural fairness

1. [59]

   Turning to the plaintiff’s second ground (see [46]), no doubt procedural fairness had to be observed by the Panel. In Minister for Immigration and Border Protection v SZSSJ; Minister for Immigration and Border Protection v SZTZI [2016] HCA 29, the High Court held:

2. [60]

   The exercise of the Review Panel’s power was certainly apt to affect the interest of the plaintiff as it would bear upon whether she would recover damages for noneconomic loss and, if so, in what percentage of the maximum allowable. The issue in this case is what procedural fairness called for in the circumstances.

3. [61]

   In Trazivuk v Motor Accidents Authority of New South Wales Giles JA observed:

4. [62]

   Extrapolating the last sentence of this passage, it may equally be said that what is required of a review panel, as part of an obligation to accord procedural fairness, cannot be comprehensively stated – including as to whether it should (or need not) re-examine. This follows, in part, from the nature of an examination which is an information gathering exercise from the point of view of panel members, not an occasion of receiving and considering submissions the claimant might wish to advance. The conduct of a re-examination cannot be equated with the granting of a hearing; nor is it otherwise a self-evident aspect of procedural fairness to which the plaintiff was entitled.

5. [63]

   Allianz Australia Insurance Ltd v Rutland concerned a claimant who was assessed for whole person impairment caused by a psychiatric condition. Observations were made in the judgments at first instance (Rutland v Allianz Australia Insurance Ltd [2014] NSWSC 1583) and on appeal regarding the importance of re-examination by a review panel. However it was not held that re-examination is an indispensable component of procedural fairness in every review. McColl and Meagher JJA (Macfarlan JA agreeing) said at [46]:

6. [64]

   Either re-examination or an interview is more likely to be of importance for updating the patient’s description of symptoms in a psychiatric case like Allianz Australia Insurance Ltd v Rutland because it is in the nature of psychiatric disorders that assessment of the extent of impairment will usually be critically dependent upon what the patient says regarding his or her mental functioning. Also, greater volatility of the disorder may be expected over a short time frame, compared to development or fluctuation of (at least some) purely physical disorders. The decision in Allianz Australia Insurance Ltd v Rutland illustrates the proposition that whether re-examination should take place is a matter of the panel’s judgment in each case, not an irreducible legally mandated component of the statutory function.

7. [65]

   In Frost v Kourouche a review panel had interviewed a claimant who claimed to suffer psychiatric symptoms. An opportunity had been given for the claimant to respond to apparent contradictions in her history. Leeming JA (with whom Beazley P and Basten JA agreed) held as follows:

8. [66]

   In light of the Court of Appeal’s decisions in Allianz Australia Insurance Ltd v Rutland and Frost v Kourouche the concepts of re-examination (referred to in the Motor Accidents Medical Guidelines) and of a hearing or interview (which will only be necessary to enable a claimant to respond to a critical issue not otherwise apparent to him or her) must be considered separately. The plaintiff’s arguments tended to conflate them. With respect to the latter, there was in this case no critical issue which affected the Review Panel’s determination and which would not have been anticipated by the plaintiff, such that she ought to have been given an opportunity to respond. The clinical nature of the Review Panel’s assessment on the particular facts of this case was such that there was nothing she could have contributed in an interview or hearing. At least, the Panel were entitled to form that view, as they did: see [16]. So far as the assessment would be affected by the plaintiff’s description of symptoms, she had given a description to Dr Rochford and the Panel members had it in the documents before them.

Reconciliation of the guidelines

1. [67]

   I conclude that the Review Panel was not required to re-examine the plaintiff, either by a legally binding directive in the Act or Guidelines, as a practical necessity of performing its task in the circumstances of this case or as an aspect of procedural fairness. The plaintiff invoked, in detail, the Motor Accidents Medical Guidelines and the plaintiff’s written request to be re-examined, in support of arguments that the Panel could not fulfil its statutory function in this review, nor discharge its obligation to accord procedural fairness, without a re-examination and/or interview. For the following reasons I do not find the plaintiff’s references persuasive.

2. [68]

   Clause 1.20(ii) of the Permanent Impairment Guidelines, quoted at [41], did not require that a re-examination take place. Those Guidelines are applicable both to initial assessments and to reviews. The generally expressed requirement that an “interview and a clinical examination” should take place “wherever possible” must be read with and reconciled to cl 16.21 of the Medical Assessment Guidelines (see [38]). The latter clause is specific to the role of a review panel. Where an “interview and a clinical examination” have been conducted by an original assessor and where the review panel concludes (as occurred here) that the information thus gathered is sufficient for its purposes without re-examination, the requirements of both clauses are satisfied.

3. [69]

   The requirement of cl 1.23 of the Permanent Impairment Guidelines, also quoted at [41], again does not indicate that the Review Panel should in this case have re-examined. It is open to a panel to determine that it can evaluate the degree of whole person impairment at the date of its review upon the basis of the results of an examination conducted by the original assessor if it regards those results as sufficiently current. This is within the panel members’ professional judgment.

4. [70]

   The Practice Note referred to at [39] is not a Motor Accidents Medical Guideline made under s 44 of the Act and is not subject to the legislative directions in s 65(1) and s 133(2). It could not prevail over cl 16.21 of the Medical Assessment Guidelines in such a way as to detract from the free professional determination of Review Panel members whether to conduct a re-examination. Clause 1 of the Practice Note is consistent with the conclusion I have summarised at [67]. The status of this clause is a recommendation of the Authority that procedural fairness should be accorded. It does not of itself dictate that re-examination should be an element of that fairness. Subclauses a.i and a.ii of cl 4.a (see [39]) recommend re-examination. For such weight as this part of the Practice Note may have, the use of the word “generally” is an explicit reservation of a review panel’s freedom to determine whether re-examination is necessary.

5. [71]

   The proper officer’s letter of 10 August 2016 inviting the plaintiff to provide reasons if she considered a re-examination was required did not alter the position stated above. Such a letter was incapable of imposing upon the Review Panel an obligation to take into account the views of the claimant as to whether re-examination of herself was required, where no such obligation otherwise arises under the legislation constituting and empowering the Panel. Despite this invitation having been extended by the proper officer, neither the Panel’s decision to proceed to its review task without re-examining nor its ultimate decision to issue the Review Certificate were vitiated, in an administrative law sense, by the Panel having not become aware of the plaintiff’s desire to be re-examined.

Failure to hear the plaintiff as to her wish to be re-examined

1. [72]

   I reject the plaintiff’s submission that the Panel was required, as a matter of procedural fairness, to hear her with respect to whether a re-examination would be undertaken. The power of the Panel to decide this, conferred by cl 16.21.2 of the Medical Assessment Guidelines quoted at [38], is not in itself a power the exercise of which “is apt to affect the interest of an individual” within the meaning of the passage from Minister for Immigration and Border Protection v SZSSJ quoted at [59]. Re-examination by the medical practitioners who comprise the Panel, in the context of cl 16.21.2, is a process which combines physical examination to identify any signs of pathology and dialogue with the patient to hear her account of symptoms. Signs and symptoms are differentiated on the basis stated at [23] and [25]. Being examined in this sense is not of itself a right or interest or legitimate expectation such as to attract an obligation to accord, by way of procedural fairness, a hearing as to whether or not re-examination will occur.

2. [73]

   It was pointed out by the Court in oral argument that the decision under review is that comprised in the Review Panel Certificate, not the decision that re-examination was not required. In response counsel argued:

3. [74]

   The last sentence of this submission does not invoke any specific, recognised administrative law basis for granting relief under s 69 of the Supreme Court Act. “Infected with procedural error or administrative unfairness” is a vague generality. It does not overcome the difficulty in the way of this complaint concerning failure to take into account the plaintiff’s wish to be re-examined. Namely, that it is an attempt to erect an obligation to accord a hearing with respect to a subordinate procedural step. No authority for such an obligation was cited. The decision which is actually under review in these proceedings, comprised in the Review Panel Certificate, is either vitiated by error on account of there having been no re-examination, or not. The plaintiff’s wish to be re-examined and the Panel’s lack of awareness of that wish cannot make any difference to whether the failure to re-examine gave rise to a reviewable administrative law error.

The Review Panel Certificate was not “legally unreasonable”

1. [75]

   It was further submitted by the plaintiff that the Panel’s decision in its Review Certificate was “unreasonable and plainly unjust” because it lacked “an evident and intelligible justification”: Minister for Immigration and Citizenship v Li (2013) 249 CLR 332; [2013] HCA 18 at [76]. Although put in writing this submission was not developed orally. I reject it. I find that the Panel’s reasons recorded in the certificate disclose a rational analysis. I have quoted part of it at [16], [24] and [25]. I find no basis for saying that an assessment of 2% whole person impairment is “one at which no rational or logical decision maker could arrive on the same evidence” (see the passage from Minister for Immigration and Citizenship v SZMDS quoted at [54]).

2. [76]

   In relation to this ground a specific submission of the plaintiff was:

3. [77]

   This submission ignores cll 1.27 and 1.28 of the Permanent Impairment Guidelines:

4. [78]

   The passage of the Review Panel’s reasons which is the subject of this criticism is quoted in full at [25]. The Panel was indicating that whatever medication the plaintiff had used had not resulted in “apparent, substantial or total elimination of [her] physical impairment” (in the words of cl 1.28) and there was therefore no occasion to increase the percentage of whole person impairment to allow for reversion of symptoms in the event of treatment being withdrawn. I considered cll 1.27 and 1.28 in IAG t/as NRMA Insurance v Gilshenen [2015] NSWSC 1165.

Failure to take into account three considerations relevant to re-examination

1. [79]

   By asserting that the Panel failed to take into account three considerations said to have been relevant to whether the plaintiff should have been re-examined (see [48]), the plaintiff again treats the procedural determination not to re-examine as if it were the administrative decision under review. In any event, even if the three considerations are evaluated by reference to the issue of the Review Panel Certificate (which is in fact the decision under review), they fail the test of being matters which the panel was bound to take into account: Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24; [1986] HCA 40 per Mason J.

2. [80]

   In accordance with the principles stated by Mason J, the factors the Panel were bound to take into account are to be identified by reference to the statutory scheme which governs their decision-making function, including implication from the subject matter, scope and purpose of that statutory scheme. I do not find that the statutory context, the Motor Accidents Medical Guidelines, or any implication from those sources indicate that the Panel was bound to take into account the plaintiff’s desire to be re-examined. Clause 4.a.ii of the Practice Note (extracted at [39]) is, for the reasons given above at [70], not something which bound the Review Panel. The plaintiff’s wish to be re-examined was, on rational grounds, a consideration irrelevant to the Panel’s decision on the degree of impairment in circumstances where the Panel members were satisfied they had adequate information upon which to undertake their task without seeing her.

3. [81]

   In any event there is no basis for concluding that the Panel did not, in all other respects, take into account “the application of the Practice Note”. In the words of the Practice Note (see [39]), the Panel appears to have conducted “the review in the manner they see fit, subject to the rules of procedural fairness” (cl 1.e). Having regard to the findings in the Assessor’s certificate and the other material made available to the Panel, I infer that it concluded “there [was] no dispute, ambiguity or uncertainty as to the clinical findings that are required in order to complete all aspects of the assessment” (cl 4.a.i). That conclusion was well open. It would follow, with due regard to the Practice Note, that no re-examination was required.

4. [82]

   The plaintiff’s solicitor deposed that the plaintiff “underwent Botox treatment for relief of her bladder dysfunction by Dr Delaney on 3 June 2016”. There is no evidence of what, if any, relief was obtained from this treatment. There is no evidence to suggest that it rendered the plaintiff’s impairment any worse. I do not consider the bare fact of her having undergone this treatment, which is all that the plaintiff invokes as a consideration not taken into account, was something the Panel was bound to consider or which, on the material before the Court, could have had any bearing on the Panel’s decision as to her degree of impairment.

Orders

1. [83]

   For these reasons I do not find any of the grounds upon which the plaintiff has sought judicial review substantiated. She has not established a basis for a grant of any of the relief sought. Accordingly the orders of the court are:

   1. (1)

      Lee Te Raa Edwards is removed as the first defendant in the proceedings and Allianz Australia Insurance Ltd is substituted and joined as first defendant.

   2. (2)

      The summons is dismissed.

   3. (3)

      The plaintiff is to pay the first defendant’s costs of the proceedings.