IAG Limited t/as NRMA Insurance v Qin

1. [1]

   HER HONOUR: This is a judicial review from a decision of a claims assessor of the State Insurance Regulatory Authority of New South Wales (“SIRA”).

2. [2]

   By summons filed 17 September 2019, the plaintiff seeks firstly, an order in the nature of certiorari, or alternatively, a declaration setting aside or declaring invalid the decision of the third defendant dated 26 August 2019 to refuse the plaintiff’s application for an exemption (“the decision”) made pursuant to s 92(1)(b) of the Motor Accidents Compensation Act 1999 (NSW) (“the MAC Act”); secondly, an order in the nature of prohibition or, alternatively, an injunction preventing the defendants or any of their officers, servants or agents from acting on or taking any further step in reliance on the decision; and finally, an order in the nature of mandamus remitting the matters to SIRA for allocation of a different claims assessor to re-determine the plaintiff’s exemption application according to law.

3. [3]

   The plaintiff is IAG Limited t/as NRMA Insurance (“the insurer”). The first defendant is Wen Jing Qin (“Ms Qin”). The second defendant is SIRA. The third defendant is Paul Curtis (“the claims assessor”), in his capacity as a claims assessor of SIRA. The insurer relied upon the affidavit of Natalie Sinclair dated 25 October 2019. The parties relied upon a court book. Both the second and third defendant filed submitting appearances.

Background

1. [4]

   On 15 August 2014, Ms Qin was injured in a motor vehicle accident (“the accident”).

2. [5]

   On 12 July 2018, Ms Qin’s solicitors lodged an application for general assessment with the Claims Assessment and Resolution Service (“CARS”). On 13 August 2018, the insurer lodged a reply to Ms Qin’s application.

3. [6]

   On 22 May 2019, SIRA advised the parties by letter that the matter had been allocated to the claims assessor for assessment. On 29 May 2019, the insurer filed and served submissions seeking a discretionary exemption of Ms Qin’s claim pursuant to s 92(1)(b) of the MAC Act (“the discretionary exemption application”). This application was brought on the basis that Ms Qin had made false or misleading statements in relation to the injuries, loss or damage she allegedly suffered in the accident.

4. [7]

   On 11 June 2019, Ms Qin’s solicitor filed and served written submissions opposing the insurer’s discretionary exemption application.

5. [8]

   On 26 August 2019, the claims assessor issued his written reasons for refusing the insurer’s discretionary exemption application.

6. [9]

   I will refer to the insurer’s application, Ms Qin’s submissions and the claims assessor’s written reasons in greater detail later in this judgment.

The statutory framework

1. [10]

   Before I turn to consider the discretionary exemption application and the decision, it is convenient that I set out the relevant statutory framework and guidelines.

2. [11]

   Under s 90 of the MAC Act, a party may refer a claim for damages for assessment under Pt 4.4 of the Act. Under ss 92 and 108 of the MAC Act, where there is a dispute about entitlement to or quantum of damages, the claim must be referred for assessment. Only claims which are exempt can be commenced without assessment under Pt 4.4.

3. [12]

   The objects of the MAC Act are set out in s 5. It relevantly states:

4. [13]

   Section 92 of the MAC Act concerns claims which are exempt from assessment. It relevantly states:

5. [14]

   Claims assessment guidelines issued under s 69(1) of the MAC Act, and effective from 1 October 2018 (“the Guidelines”), outline the procedures to be followed by claims assessors in the assessment of claims under Part 4.4 of the Act.

6. [15]

   Clauses 1.13 and 1.14 concern the objects of the MAC Act. They relevantly read:

7. [16]

   Clauses 14.11-14.16.11 of the Guidelines make provision for discretionary exemption in as follows:

The discretionary exemption application

1. [17]

   On 29 May 2019, the insurer filed and served the discretionary exemption application pursuant to s 92(1)(b) of the MAC Act.

2. [18]

   In its application, the insurer submitted that under cl 14.16.11 of the Guidelines, the matter was not suitable for assessment at CARS on the basis that Ms Qin had made false or misleading statements in a material particular in relation to the injuries, loss or damage she sustained in the accident. Those alleged false or misleading statements related to two topics: Ms Qin’s injuries and disabilities from the accident, and the circumstances of the accident. I shall summarise them as follows.

3. [19]

   The insurer submitted that Ms Qin provided false and misleading statements indicating that she sustained shoulder and psychological injuries caused by the accident.

4. [20]

   On 23 September 2014, Ms Qin, in answer to questions 25 and 26 of the claim form, answered:

5. [21]

   In contrast to Ms Qin’s answers, however, the medical certificate of Dr Alan Wong dated 8 September 2014 contained no reference to symptoms or diagnosis in respect of the left shoulder, or to any psychological injury.

6. [22]

   The insurer submitted that Ms Qin’s insertion of PTSD, depression and injury to both shoulders into the claim form pre-dated their diagnosis by any medical practitioner. As such, the insurer sought that evidence be given as to who inserted such words, and on whose instructions or on what evidence.

7. [23]

   The insurer submitted that CARS was not the appropriate forum for such an exercise. It requested a formal hearing in the District Court, in which sworn evidence could be given, a transcript made available and a witness be provided the protection of a certificate pursuant to s 128 of the Evidence Act, if required.

8. [24]

   The insurer further submitted that Ms Qin made false or misleading statements about the circumstances of the accident, providing inconsistent statements about whether the airbags deployed and whether she was able to extricate herself from her vehicle. Those inconsistent histories are as follows:

   1. (1)

      On 8 September 2014, Dr Wong recorded that in the accident, the airbag from Ms Qin’s vehicle deployed and after some time, she was able to exit the car herself.

   2. (2)

      In a signed statement dated 23 October 2014, Mr Qin, the driver of Ms Qin’s vehicle at the time of the accident, stated that the airbags did not deploy and that she got out of the car and went to the footpath.

   3. (3)

      Dr Thomson noted that the airbags did not release in the accident.

   4. (4)

      Dr Anderson noted that after the accident, somebody pulled Ms Qin from the vehicle.

   5. (5)

      Dr Perla noted that Ms Qin stated “that she was assisted out by a passer-by”.

   6. (6)

      Associate Professor Anthony Samuels noted that “at the time of impact, [Ms Qin] was shocked and had to be assisted out of the car.”

   7. (7)

      Dr Mohammed Assem noted that in the accident, the “airbag facility deployed causing mild facial injury.”

   8. (8)

      In her statement dated 15 May 2018, Ms Qin stated that “after the accident, I was shocked and had to be helped out of the car.”

9. [25]

   In its application to the assessor, the insurer submitted that the District Court, and not CARS, would be the appropriate forum for the hearing of the issues it raised.

10. [26]

    The insurer noted that under cl 15.4.2 of the Guidelines, the insurer’s capacity to question relevant parties at CARS is subject to the discretion of the claims assessor. The oral evidence is also not sworn, and the insurer does not have the benefit of obtaining a transcript to assist with cross-examination and submissions. The insurer submitted that it should be given the opportunity to test Ms Qin’s evidence under oath and proper cross-examination, and that Ms Qin should also have the ability to seek protection against self-incrimination under s 128 of the Evidence Act, should it be required, which is also not available at CARS.

11. [27]

    The insurer further relied upon the principles in Insurance Australia Limited t/as NRMA Insurance v Taylor [2017] NSWSC 507 (“Taylor”).

12. [28]

    In her submissions before the assessor, Ms Qin referred to the comments of Campbell J in Insurance Australia Ltd (t/as NRMA Insurance) v Banos (2013) 65 MVR 312; [2013] NSWSC 1519 (“Banos”), where his Honour stated, “It is not mandatory, whenever a credit issue is raised, to decide that the claim is not suitable for assessment.”

13. [29]

    Ms Qin further referred to Insurance Australia Ltd t/as NRMA Insurance v Motor Accidents Authority of New South Wales and Mahmoud Khateib [2006] NSWSC 1448 (“Khateib”), where Rothman J referred to the amendment to the Guidelines which removed the allegation of a false or misleading statement as a ground of exemption pursuant to s 92(1)(a)-(b) as follows:

14. [30]

    According to Ms Qin, the allegations of injury concerning the left shoulder, PTSD and depression were capable of being clarified by a supplementary statement, with the result that she could satisfactorily be “questioned about it in a CARS setting”. Dr Wong could also clarify relevant issues by way of a medical report.

15. [31]

    Ms Qin also submitted that although the insurer sought to rely on a statement by Mr Qin dated 23 October 2014, that statement was not put before the assessor, and therefore could not be considered.

16. [32]

    More generally, she submitted that the insurer could seek to adduce evidence from doctors and lay witnesses at a CARS assessment conference and that:

The decision of the claims assessor

1. [33]

   On 26 August 2019, the claims assessor issued his decision refusing the insurer’s discretionary exemption application and published written reasons.

2. [34]

   In his reasons at [1] to [11], the claims assessor set out the factual background of the case. At [12], he provided a chronological summary of Ms Qin’s relevant claims, and at [13], he summarised her claim for damages.

3. [35]

   At [14] of his decision, the claims assessor referred to cl 14.16 of the Guidelines as follows:

4. [36]

   At [15], the claims assessor set out the objects of CARS under cls 1.13 and 1.14 of the Guidelines. At [16], he noted that the insurer’s application was made pursuant to s 92(1)(b) of the MAC Act and was dependent upon his satisfaction that the claim was not suitable for assessment.

5. [37]

   At [17], the claims assessor set out cl 14.16 of the Guidelines in full, as reproduced earlier in this judgment. He summarised the submissions of the insurer at [32] to [42] and then of Ms Qin at [43] to [49].

6. [38]

   The claims assessor provided the following reasons for his decision at [50] to [69]:

Judicial review in this Court

1. [39]

   In this current judicial review, the parties referred to a number of authorities. They are Zurich Australian Insurance Limited v Motor Accidents Authority [2006] NSWSC 845 (“Zurich Australian”); Banos; Insurance Australia Limited t/as NRMA Insurance v Milton [2016] NSWSC 1521 (“Milton”); Allianz Australia Insurance Ltd v Tarabay (2013) 62 MVR 537; [2013] NSWSC 141 (“Tarabay”); Taylor; IAG Ltd t/as NRMA Insurance v Abiad (2018) 85 MVR 371; [2018] NSWSC 1422 (“Abiad”); IAG Ltd t/a NRMA Insurance v Khaled (2019) 87 MVR 486; [2019] NSWSC 320 (“Khaled”); and IAG Limited (t/as NRMA Insurance) v Lou (2019) 88 MVR 57; [2019] NSWSC 382 (“Lou”).

2. [40]

   In Banos, Campbell J stated at [39], [41] to [43]:

3. [41]

   Tarabay is a case concerning an allegation of fraud. In Tarabay, Rothman J stated at [36] to [39] and [57], [58], [62] to [64] and [66]:

4. [42]

   In Tarabay, Rothman J concluded that the assessor asked herself the wrong question and took into account irrelevant material in determining whether fraud was proved instead of whether, given the nature of the allegations and their reasonableness, the matter ought be granted a certificate of exemption.

5. [43]

   Taylor concerned a discretionary exemption application. In Taylor, Davies J stated at [34], [36] and [38]:

6. [44]

   In Taylor at [39], Davies J then confirmed Rothman J’s comments in Tarabay at [57], before continuing at [40]-[42]:

7. [45]

   Finally, after reproducing [56] to [58] of Tarabay, Davies J then concluded at [44] to [46]:

8. [46]

   In Abiad at [59] and [62], Harrison J set out Campbell J’s statements in Banos at [43] and Davies J’s statements in Taylor at [33] to [36]. Harrison J then continued at [76]:

9. [47]

   In Khaled, Bellew J stated at [28]:

10. [48]

    In Lou, Wilson J stated at [23]:

11. [49]

    Ms Qin also referred to several cases which set out the standard to which a claims assessor’s reasons are to be held in respect of a judicial review in this Court. Those cases are IAG Ltd t/as NRMA Insurance v Chahoud (2019) 89 MVR 87; [2019] NSWSC 767 (“Chahoud”); Khateib and AAI Ltd v Feng [2019] NSWSC 535 (“Feng”).

12. [50]

    In Chahoud, Bell P stated at [66]:

13. [51]

    In Khateib, Rothman J stated at [20]:

14. [52]

    In Feng, Adamson J stated at [56]-[60]:

15. [53]

    I note that more generally, the standard to which a claims assessor’s reasons are to be held has been set out in Wingfoot Australia Partners Pty Ltd v Kocak (2013) 252 CLR 480; 303 ALR 64 (“Wingfoot”). While Wingfoot refers to a medical panel under the Accident Compensation Act 1985 (Vic), the standard for written reasons set out above applies equally to the claims assessor under the MAC Act in this case.

16. [54]

    In Wingfoot the High Court stated at [55]:

17. [55]

    I accept that the claims assessor’s reasons are not to be overscrutinised to see if error can be gleaned from their expression: see Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 271-272. Nevertheless, this beneficial approach to construction does not mean that any ambiguity is to be resolved in the assessor’s favour: see Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union v Abigroup Contractors Pty Ltd [2013] FCAFC 148 at [190]; SZCBT v Minister for Immigration and Multicultural Affairs [2007] FCA 9 at [26]. Invariably, some reasons “will cross the line, and irredeemably reveal jurisdictional error”: see Ejueyitsi v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 151 FCR 289; [2006] FCA 328 at [88].

Grounds of judicial review

1. [56]

   The plaintiff’s grounds of review are as follows:

   1. (1)

      That the claims assessor misconstrued the scope and nature of his statutory power under s 92(1)(b) of the MAC Act in the following ways:

   2. (2)

      That the claims assessor took into account two irrelevant considerations in his decision by referring at [59] to “further delay” and a “significant increase in legal costs” if he granted the exemption application.

2. [57]

   I shall deal with these two grounds of review in turn.

3. [58]

   The insurer submitted that the claims assessor misconstrued the scope and nature of his power by asking whether certain issues could be—and how commonly they were—dealt with at CARS, instead of whether the matter was not suitable for assessment, as required.

4. [59]

   The claims assessor began his reasoning process at [51] by stating that a “primary question” for him to consider was whether both parties can be afforded a fair hearing at an assessment conference. At [67], he determined that the answer to the question was that they can. The insurer submitted that despite opening and closing his reasons with these statements setting out the proper legal test, the claims assessor approached the question of what was “fair” by considering what could be done at CARS, rather than considering whether the claim was suitable for assessment at CARS.

5. [60]

   At [53] and [62] of his reasons respectively, the claims assessor considered whether the issues raised by the insurer, and whether the questioning of particular witnesses, “can be accommodated” at CARS. The insurer also referred to the claims assessor’s statement at [56] that oral testimony from doctors “can be arranged”. The insurer submitted that these references do not address the statutory question of whether the claim “is not suitable for assessment” under s 92(1)(b) of the MAC Act.

6. [61]

   The insurer submitted that the claims assessor’s failure to consider the question of suitability indicates, as it did in Khaled, that he erred by failing to ask himself the correct question.

7. [62]

   The insurer further referred to the claims assessor’s references at [54] and [61] to his own practice of dealing with certain issues at CARS. The insurer submitted that these references did not engage with the question of the suitability of the claim for assessment, but merely emphasised that such issues are commonly dealt with at CARS. In Lou at [23], Wilson J stated that the frequency with which an issue is dealt with in the CARS assessment process is irrelevant to determining whether a claim is “not suitable for assessment” under Part 4.4 of the MAC Act.

8. [63]

   The insurer submitted that the claims assessor’s repetition of phrases such as “can be arranged” and “can be accommodated” indicates that the deficiencies in reasoning are not merely due to “looseness of language” or “unhappy phrasing”: see Wu Shan Liang at 271-272. The insurer submitted that on these grounds the decision should be set aside.

9. [64]

   Ms Qin submitted that the claims assessor’s reasons:

10. [65]

    Ms Qin submitted that the insurer’s focus on “can” and “could” do not survive a beneficial reading of the claims assessor’s reasons. The claims assessor used those words to explain his path of reasons and his findings, in a way that was satisfactory. Ms Qin submitted that this is not a case where the claims assessor made a formulaic incantation of a statutory provision, and then went on to determine the case by a different criteria or test.

11. [66]

    It was open, and required of the claims assessor, to examine the capabilities of CARS as a forum before determining whether it was not suitable to hear the matter. As such, there is no deficiency in the reasons, in which the correct test is plainly applied.

12. [67]

    In considering this ground of review, it will be necessary to address the reasons of the claims assessor in some detail.

13. [68]

    At [23] of the decision, the claims assessor referred to Banos at [43], where Campbell J stated, “the function of the Claims Assessor requires him or her to bear firmly in mind at all times the statutory question, which I reiterate, is whether the claim is not suitable for assessment under part 14.4 of the Act” ([the claims assessor’s] emphasis)”.

14. [69]

    At [30] of the decision, the claims assessor further stated:

15. [70]

    At the outset of his “decision and recommendation” at [50], the claims assessor stated, “My task is to determine whether the claim brought by Ms Qin is not suitable for assessment as submitted on behalf of the insurer.” At [68], he concluded, “It follows that I am not satisfied that Ms Qin’s claim is not suitable for assessment.”

16. [71]

    At the hearing of this judicial review, the insurer accepted that the claims assessor stated the correct test at the outset and conclusion of his reasons. However, senior counsel for the insurer submitted that the substance of the claims assessor’s reasons reveal that he asked himself the wrong question by considering whether the matter “could” be dealt with at CARS, rather than whether it was not suitable for assessment. I do not agree.

17. [72]

    In considering the claims assessor’s reasons, I am conscious of the recent decision of Adamson J in IAG Limited t/as NRMA Insurance v Abdelrazek [2020] NSWSC 773 (“Abdelrazek”), in which she addressed a similar ground of review by stating, “Although the ultimate question turns on suitability (or lack thereof), capacity will commonly, if not invariably, be a relevant factor in determining suitability.” In Abdelrazek, Adamson J was of the view that the claims assessor’s addition of the qualifying adverb “properly” indicated that he was making a qualitative assessment of suitability, rather than capacity. Similarly, in these proceedings, the claims assessor stated at [56] that he was not satisfied that certain issues “could not be adequately explored at the assessment conference” (my emphasis).

18. [73]

    It is true that elsewhere in his reasons, the claims assessor did not use such qualifying adverbs. At [53], he simply stated that he was satisfied that issues of credit and close questioning of Ms Qin “can be accommodated” at CARS. However, he continued at [54] to state that it is his practice to permit questioning in circumstances where credit is a live issue. In my view, this reveals that the claims assessor not simply determining capacity, but rather expressing a view that he was not persuaded that the claim was unsuitable for CARS assessment. The same is true of his statement at [62] that issues concerning the completion of the claim form and possibility of questioning Ms Qin’s previous solicitor “can be accommodated” at CARS. This statement must be read in context of the previous paragraphs, in which the claims assessor stated that there is no evidence that nominated doctors would refuse to cooperate with the CARS process.

19. [74]

    Having considered these issues, the claims assessor concluded at [66]:

20. [75]

    In my view, it is plain from the claims assessor’s reasons that he understood the overriding question to be one of suitability, not capacity. In determining whether the matter was not suitable for assessment at CARS, the claims assessor was entitled to compare the advantages of a CARS assessment and a court hearing, including the capacity for the issues raised in the insurer’s submissions to affect the capacity of CARS to provide the parties with a fair hearing. As such, his reasons reveal that he gave a proper, genuine and realistic consideration of the correct question. This ground of review fails.

21. [76]

    The insurer submitted that another indication that the claims assessor misconstrued the scope and nature of his power under s 92(1)(b) of the MAC Act is that he did not exercise it consistently with the purpose of the statutory scheme. Sections 92(1) and 106, when read with cls 8.11.6 and 14.16.11 of the Guidelines, evince an intention that, in an appropriate case, an insurer’s claims ought to be tested in a courtroom and be exposed to the type of forensic examination that the assessment process cannot necessarily provide: see Abiad at [76]. The insurer submitted that the claims assessor approached the question on the flawed basis that a courtroom did not have any advantages over CARS, and that the assessment process could provide an equivalent level of forensic examination.

22. [77]

    The insurer pointed to Banos, which established that the curial system has advantages over CARS where an allegation is made that a person has made a false and misleading statement. In Banos at [43](b), Campbell J stated that s 92 provides “a clear legislative guidepost” that appropriate cases should be “redirected” to the court system at an early time by way of preliminary determination. The advantages of the curial system include that, in court, the rules of evidence apply, there is sworn compellable evidence, there is a right of cross examination and evidence is given under oath: see, for example, Taylor at [41]-[45]. A transcript is also made and available. A CARS assessment, by contrast, lacks these features: see Tarabay at [36]-[39] and [57] and Taylor at [39].

23. [78]

    The insurer submitted that the claims assessor’s reasons implicitly denied all of these advantages. As such, the claims assessor did not correctly determine whether the matter was “not suitable” for assessment.

24. [79]

    Some of the claims assessor’s findings, indicating that he considered that allegations of false or misleading statements could be tested as effectively at CARS as in a court, were that:

25. [80]

    The insurer also referred to Taylor at [36] and Banos at [43](d) and (e), extracted earlier in this judgment. The insurer submitted that the claims assessor’s failure to “engage with” these considerations, or to acknowledge the limitations of an assessment, reflected the fact that he asked himself the wrong question: see Khaled at [30].

26. [81]

    The claims assessor’s response to the insurer’s submission that it needed to cross examine Ms Qin under oath was that he could issue any witness with a warning about s 117 of the MAC Act (rendering it an offence to make a statement knowing that it is false or misleading in a material particular). The insurer submitted that this did not take into account that the insurer would not be able to rely upon s 117 in the assessment, because there would be no transcript.

27. [82]

    Ms Qin submitted that in its submissions before the claims assessor, the insurer compared the respective virtues of the CARS process and court proceedings. The insurer did not specifically say that it could not obtain a fair hearing in CARS, nor was there a basis on which this could be said.

28. [83]

    Ms Qin submitted that under s 92(1)(b) of the MAC Act, the relevant consideration for the claims assessor was whether the claim “[was] not suitable for assessment” by CARS. The question was not which venue would be preferable, if both venues were suitable, but rather whether CARS is not suitable. That determination must be made on the facts of each case, with reference to the allegations made by the moving party.

29. [84]

    In this case, the insurer’s submissions to the claims assessor engaged in a comparison of the virtues of CARS and court proceedings. As he was required to do, the claims assessor engaged with that comparative process. Ms Qin submitted that the insurer’s submissions merely pointed to virtues that it said made court proceedings its more preferred venue, but did not give reasons why CARS was not suitable.

30. [85]

    There is no prima facie starting position within the legislative framework which states that where allegations of false or misleading statements are made, there is something in the nature of a presumption that CARS proceedings are not suitable and only court proceedings are appropriate. Plainly, the legislative context, and the test to be applied in s 92(1)(b), looks to the starting question of whether the assessment is not suitable for CARS.

31. [86]

    Ms Qin submitted the claims assessor was required to consider whether there could be a hearing which is in a practical sense fair, and not whether court proceedings have virtues that make them a preferred or more suitable venue. Ms Qin submitted that the claims assessor engaged in this exercise.

32. [87]

    This ground of review alleges that the claims assessor failed to consider the comparative limitations and advantages of an assessment conference and a court hearing, as s 92(1)(b) of the MAC Act required him to do: see Banos at [43](c) and (d). This is because, the insurer submitted, the claims assessor considered a courtroom not to have any advantages over a CARS assessment. In my view, this is not a fair assessment of the claims assessor’s reasoning.

33. [88]

    At [22] of his reasons, the claims assessor referred to Banos at [43](d), where Campbell J stated:

34. [89]

    In considering the cross-examination of Ms Qin, the claims assessor stated at [52]-[54] that he acknowledged her credibility would be called into question. However, he stated it was his practice to permit cross-examination in the CARS setting. He also stated at [60] that although questioning Ms Qin under oath carried the advantage of serious consequences for false evidence, in a CARS assessment he would issue her with a warning that any false or misleading statements constitute an offence under s 117 of the MAC Act. The claims assessor concluded at [55], “In this instance, I am not satisfied that in a claim such as this the questioning of the claimant during an assessment conference would be materially different from the questions put in cross-examination in a court, or that these issues could not be adequately explored”. In other words, the claims assessor considered whether, and was not satisfied that, a court hearing would provide a “better opportunity for proper and fair” cross-examination of questionably credible witnesses: see Banos at [43](d).

35. [90]

    As to the insurer’s submissions concerning compellable evidence, the claims assessor stated at [56] that arrangements could be made for medical practitioners to give oral testimony at an assessment conference. He noted at [57] that there was no suggestion that any nominated doctors would refuse to cooperate with the CARS process, such that the power to subpoena them for attendance would be required. To use the words of Campbell J in Banos at [43](d), the claims assessor had considered, and rejected, the argument that a court would provide “greater availability of cross-examination of medical experts” in relation to the application before him.

36. [91]

    It is not the effect of s 92(1)(b) of the MAC Act that any application made on the basis that a claimant made a false or misleading representation indicates that a court is a preferable venue. In its application, the insurer bore the onus of demonstrating that the availability of transcript, sworn evidence, or the power to compel witnesses would materially affect the proceedings such that CARS was not suitable. It was open to the claims assessor, on the evidence, to determine that they would not. In my view, his reasons engage with an evaluation of the insurer’s submissions and the comparative advantages of the forums as they relate to the facts of the application before him, as he was empowered to do under s 92(1)(b). This ground of review fails.

37. [92]

    The insurer submitted that the claims assessor also misconstrued his statutory task by failing to make a preliminary assessment having regard to the circumstances of the claim as at the time of its consideration, as required by cl 14.16 of the Guidelines. Instead, he speculated as to future possibilities.

38. [93]

    At [57], the claims assessor considered whether doctors nominated by Ms Qin would refuse to cooperate with the CARS process, and at [62] he assumed that Ms Qin’s previous solicitor would make herself available for questioning, despite there being no power in the MAC Act to compel their attendance. The insurer submitted that by so doing, the claims assessor wrongly made a prospective assessment on the basis of his speculation as to the circumstances in the future.

39. [94]

    The insurer argued that there was no evidence before the claims assessor that any of the proposed witnesses would make themselves available for questioning at an assessment. He required the insurer to provide evidence that proposed experts and lay witnesses would not attend the CARS process. The insurer submitted that this approach imposed an impermissible burden of proof on the insurer and departed from the preliminary assessment the claims assessor was required to undertake, having regard to present circumstances.

40. [95]

    Ms Qin submitted that as the insurer had applied for a discretionary exemption from CARS, it was for the insurer to demonstrate that CARS was “not suitable”.

41. [96]

    If there were foreseeable or reasonable grounds to suspect that the expert or lay witness required by the insurer were not available, or required the coercive measures of a court to ensure attendance, then that would constitute evidence that CARS was not suitable. The insurer provided no such evidence.

42. [97]

    Ms Qin submitted that on any reading, the claims assessor assessed the matter as at the time of the application. There was no evidence to suggest that there was an issue with availability, and there was no evidence to suggest that these circumstances might change. It was open to the claims assessor to make the determination, in the absence of evidence or submissions to the contrary, that the coercive powers of the court were not expressly required. As such, the preliminary assessment of the matter, based on the facts and submissions provided, was well within the scope of the claims assessor’s duty in making his determination.

43. [98]

    In considering the insurer’s application, the claims assessor was bound under s 106 to consider cl 14.16 of the Guidelines. Clause 14.16 required him to consider “the circumstances of the claim at the time of consideration of the claim”, and entitled (but did not require) him to consider any and all of the matters listed in its sub-clauses.

44. [99]

    I note that a preliminary assessment under s 92(1)(b) “is of its nature based on incomplete information”: see Zurich Australian at [41]. The information before the claims assessor at the time of its consideration was contained in the submissions of the insurer and Ms Qin.

45. [100]

    The insurer’s submissions before the claims assessor provided no indication, let alone evidence, that witnesses might not attend a CARS assessment, or that the unavailability of the coercive powers of a court might affect the suitability of CARS to hear the claim. As stated earlier, as the applicant for the discretionary exemption, the insurer bore the onus of demonstrating that CARS was not a suitable venue. It was open for the claims assessor to conclude that without satisfactory evidence, he was not satisfied that CARS was not suitable. Moreover, by indicating that there was no current evidence that witnesses would not attend a CARS hearing, the claims assessor was not “speculating about future possibilities” but rather envisioning the way the assessment would be conducted based off the evidence before him, as he was required to do: see Abdelrazek at [57]. This ground of review fails.

46. [101]

    The insurer submitted that the claims assessor merely assumed that he would be the claims assessor determining the substantive application, and therefore that his practice was relevant. This was the wrong approach for two reasons. First, he was required to consider the circumstances of the claim as at the time of consideration of the claim. It was possible that the matter would be referred to another claims assessor for determination, and he should not have assumed that he would necessarily assess the claim.

47. [102]

    Secondly, and more importantly, the insurer submitted that the statutory question for determination was not whether the claim was unsuitable for assessment by the claims assessor, but whether the claim was not suitable for assessment under the MAC Act. This required the claims assessor to consider the suitability of the claim for assessment generally and not in light of his own practices. He could not, in any event, bind himself to exercise his procedural powers in a particular way when conducting an assessment in the future: see Ansett Transport Industries (Operations) Pty Ltd v Commonwealth (1977) 139 CLR 54, per Mason J at 74. It follows that he should not have considered the claim's suitability or otherwise for assessment on the basis that he would exercise his discretionary powers in a stated or particular way.

48. [103]

    The insurer submitted that by considering the suitability of the claim for assessment by him personally, in light of hisown practice, the claims assessor asked himself the wrong question and fell into error.

49. [104]

    Ms Qin submitted that the use of the claims assessor’s knowledge and experience is directly contemplated, permitted and expected within the CARS scheme. The claims assessor’s practices in assessing a claim are relevant because the claim had already been allocated to him, pursuant to s 93 of the MAC Act. There is no evidence that that would change.

50. [105]

    Further, the claims assessor was bound to assess the claim by application of the Guidelines, the statutory provisions and the common law. In this way, while each claims assessor may have forensically differing approaches to assessment, there is no practical likelihood of those differing approaches being substantively different. The variation between assessors is nominal at best given the overall requirement to assess within the bounds of lawful decision making. In other words, the practices and experiences of the claims assessor are substantively common amongst claims assessors. This consideration was a relevant and valid one in concluding that the practices within CARS were capable of accommodating the claim.

51. [106]

    The claims assessor’s consideration of the matter was a lawful preliminary consideration on the facts as they are available.

52. [107]

    As stated under ground 1(c), in considering the insurer’s application, the claims assessor was obliged to consider the circumstances of the claim at the time of its consideration. In my view, the claims assessor was entitled to envision the way in which the assessment would be conducted on the basis of present information, which included that he had been allocated to hear the claim, should it progress to a CARS assessment, pursuant to s 93 of the MAC Act. I note on this point that cl 1.14.4 of the Guidelines provides that one of the objects of CARS is “to make appropriate use of the knowledge and experience of CARS Assessors”. To do so was not in error. This ground of review fails.

53. [108]

    The insurer submitted that the claims assessor wrongly sought to evaluate the false or misleading allegations to the extent that he effectively minimised and dismissed them. At [53], [54] and [64] of his reasons, the claims assessor referred to the allegations as merely “issues” of credit which could be accommodated in his “practice” of permitting questioning at CARS. By doing so, the claims assessor effectively avoided the statutory question of whether the allegations rendered the claim “not suitable” for assessment. He did not consider the nature of the allegations at all in the analytical part of his reasons, but merely reported what they allegations were. As such, he wrongly failed to consider the seriousness of what had been alleged: see Taylor at [38].

54. [109]

    The insurer further submitted that the claims assessor’s comments at [64] to [65] about the timing of the completion of the claim form and Ms Qin’s statement that she did not raise her psychological symptoms with her doctor until they started to affect her life also minimised the allegations. These comments impermissibly indicated that the claims assessor had come to a view as to the veracity of Ms Qin’s explanation for the false and misleading statements: see Tarabay at [63]). While the claims assessor purported to make no finding either way, he conveyed his opinion that the insurer’s allegations were not strong.

55. [110]

    The insurer submitted that the “assessor’s role is not to determine the truth or even the strength of the insurer’s allegations”: see Abiad at [76]. Nor is it “to second guess an insurer’s allegations that a claimant has made a false or misleading claim”. The insurer submitted that the insurer did both. As such, he did not ask himself the correct legal question and failed to understand and perform his statutory task.

56. [111]

    Ms Qin submitted that in his reasons, the claims assessor did not make any finding as to whether the allegations were in fact false or misleading. On any reading, and especially with beneficial construction as is required by law, the claims assessor did not dismiss the allegations.

57. [112]

    The claims assessor did not need to reach a conclusion on the issue of whether Ms Qin had made false or misleading statements, and arguably would fall into legal error in attempting to do so: see Tarabay. However, the merits of the allegations made by the insurer are still relevant to the determination.

58. [113]

    The question that required determination was whether the matter was “not suitable” for assessment, having regard to the allegation of false or misleading statements that had been made by the insurer. This necessarily involves an exercise of discretion.

59. [114]

    The insurer was required to satisfy the claims assessor that the matter was not one that should be heard in a CARS assessment, on the basis of an allegation, reasonably put: see Tarabay at [66]. It is not the case, as submitted by the insurer, that the claims assessor provided some commentary on the truth or strength of the insurer’s allegations. The claims assessor merely stated that the documents or circumstances were capable of explaining any inconsistencies.

60. [115]

    Ms Qin submitted that as such, there is no error in the claims assessor’s treatment of the allegation, and the fine tooth comb approach of the insurer in this respect violates the beneficial construction principle afforded to administrative decision makers.

61. [116]

    In Taylor, Davies J stated at [38]:

62. [117]

    In his decision at [64] and [66], the claims assessor stated:

63. [118]

    In my view, the claims assessor’s reasons cannot be read as dismissing the insurer’s allegations. The claims assessor made clear that the issues of credit were those which, in his experience and based on the available evidence, could be clarified in a CARS assessment. The question of the reasonableness of the allegations, and the strength of the insurer’s allegations, were relevant to the question to be determined by the claims assessor, and to the exercise of his discretion. The claims assessor was entitled to form a preliminary view about whether the statements were false or misleading in order to come to a decision about the suitability of the matter for assessment.

64. [119]

    In my view, the claims assessor has not constructively failed to exercise his jurisdiction. Ground 1 fails.

65. [120]

    The second error the claims assessor made was to take into account irrelevant matters.

66. [121]

    These are that the granting the exemption application would cause “further delay” and would result in a significant increase in legal costs (reasons at [59]).

67. [122]

    This is another indication that the claims assessor misconstrued the scope and nature of his power under s 92(1)(b) of the MAC Act is that he had regard to matters which were not relevant to the question of suitability for assessment.

68. [123]

    The claims assessor indicated at [14] and [58] of his in the reasons that he considered delay to be relevant because he is “required” to take into account the objects of the MAC Act and those of the Guidelines. Those objects were neither relevant nor determinative, and pull in a number of different directions.

69. [124]

    The objects of the MAC Act include “to deter fraud in connection with compulsory third-party insurance”: see s 5(1)(g). That object supported the granting of an exemption. The claims assessor did not identify any particular object of the MAC Act which supported declining the insurer’s discretionary exemption application.

70. [125]

    The insurer submitted that claims assessor fell into error by considering that the objects of the MAC Act supported declining a discretionary exemption application in circumstances where a long time had passed since the motor vehicle accident. His sole statutory task was to consider whether the claim was not suitable for assessment. Its suitability or otherwise for assessment was entirely unaffected by the time which had passed since the accident, and the objects of the Act did not alter this.

71. [126]

    The claims assessor did not identify which of the objects of the Guidelines favoured a decision that the claim was suitable for assessment. Some of those objects are set out at [15] of his reasons. He omitted the objects in cls 1.14.4 and 1.14.5. While it may be guessed that the claims assessor had clause 1.14.1 in mind (“to provide a timely, fair and cost effective system for the assessment of claims...”), the insurer submitted that that is not an object which can properly be relied upon to take into account costs or delay when determining the non-suitability of a claim for assessment.

72. [127]

    The insurer submitted that the object in cl 1.14.1 of the Guidelines is concerned with the timeliness and fairness of the system for the assessment of claims. The question for the claims assessor is whether the claim should be assessed at all. This object is not relevant.

73. [128]

    Secondly, cl 1.13 of the Guidelines provides that the objects of CARS in cl 1.14 should be used as an aid to the interpretation of these Guidelines. The objects of CARS are not strictly relevant to determining whether a matter is not suitable for assessment at CARS (or, at least, not in the way in which the claims assessor relied upon them). Further, the claims assessor was not using the objects as an aid to interpretation of cl 14.16.11, but rather as a means of impermissibly expanding the statutory test of whether a claim is not suitable for assessment, by asking whether it should be assessed, not because of its suitability or otherwise, but because it has been in the system too long.

74. [129]

    Thirdly, the statutory question the claims assessor had to ask himself was whether the claim was not suitable for assessment on the basis of the insurer's allegation (Guidelines, clause 14.16.11; Taylor at [34]; Banos at [41]-[43]). The question of whether the claim was not suitable for assessment because of the allegation that Ms Qin had made false and misleading statements was wholly unrelated to the question of whether the claim should be determined quickly because it was five years since the accident, and to the question of whether a curial determination would be more costly.

75. [130]

    For these reasons, the claims assessor’s consideration of cost and delay as factors in favour of refusing the discretionary exemption application indicated that he was asking himself the wrong question. He was not asking whether the claim was not suitable for assessment on the ground advanced by the insurer; rather, he was considering whether it would be preferable for the claim to be assessed so as to avoid further costs and delay. That constituted a constructive failure to exercise jurisdiction.

76. [131]

    The insurer submitted that in citing the objects in the Guidelines, the claims assessor took into account irrelevant considerations.

77. [132]

    This submission should be rejected. The claims assessor was certainly entitled, if not required, to consider the objects of CARS to guide his interpretation of the Guidelines and the exercise of his discretion.

78. [133]

    The insurer submitted that another consideration of the objects was deterring fraud. Ms Qin noted that no allegation of fraud has been made to date.

79. [134]

    Finally, the insurer submitted that the time since the motor accident was an irrelevant consideration even though an object of CARS is to provide a timely resolution of the matter. Exempting the matter and requiring the commencement of Court proceedings would undoubtedly add time and cost. As such, Ms Qin submitted that the claims assessor did not taken into account irrelevant considerations in considering the object of CARS.

80. [135]

    As Adamson J stated in Feng at [38], the effect of s 92(1)(b) of the MAC Act and of cl 14.16 of the Guidelines is that, with the exception of the circumstances of the claim at the time of its consideration, it is for the assessor to decide what to take into account and what weight to give particular factors when determining whether a claim is not suitable for assessment at CARS. Certainly those factors may include the objects of the Guidelines, which under cl 1.13 “should be used as an aid to [their] interpretation”. As stated earlier, those objects include cl 1.14.1, to provide a “timely, fair and cost effective system for the assessment of claims”.

81. [136]

    More to the point, a consideration will only be irrelevant as a matter of law if the assessor is bound, expressly or by necessary implication, not to take it into account: see Minister for Aboriginal Affairs v Peko-Wallsend Limited (1986) 162 CLR 24 at 38-41 per Mason J. It is not suggested, nor could it be, that s 92(1)(b) of the MAC Act binds the claims assessor not to take into account the potential for further delay and increased legal costs when considering whether to grant a discretionary exemption application. In my view, the assessor’s reasons sufficiently explain his path of reasoning and refusal to grant a discretionary exemption. As such, I am not persuaded that there was any error of law on the face of the record or jurisdictional error. Ground 2 fails.

Result

1. [137]

   The result is that the insurer has failed to establish an error of law on the face of the record or jurisdictional error. The judicial review fails. The insurer’s summons filed 17 September 2019 is dismissed.

Costs

1. [138]

   Costs are discretionary. Costs usually follow the event. The insurer is to pay Ms Qin’s costs on an ordinary basis.