Bucca v QBE Insurance (Australia) Ltd

1. [1]

   BASTEN AJ: The plaintiff, Carolyn Jean Bucca, was injured on 17 April 2017 when a motorised buggy ran into her at the Royal Easter Show. The first defendant, QBE Insurance (Australia) Limited (the insurer), has accepted liability. However, there is a dispute as to the level of permanent impairment suffered by the plaintiff. Her entitlement to any amount by way of non-economic loss is dependent upon her establishing a level of permanent impairment greater than 10%, for the purposes of the Motor Accidents Compensation Act 1999 (NSW) (the 1999 Act), s 131. The degree of permanent impairment must be assessed by a medical assessor under Pt 3.4 of the 1999 Act: s 132(1).

2. [2]

   On 7 September 2020, the plaintiff lodged an application for assessment of her permanent impairment. Two separate assessments were undertaken for “musculoskeletal injuries” and for “respiratory/sleep disorder”. Separate certificates assessing her whole person impairment were issued on 7 July 2021 (12%) [1] and 12 November 2021 (8%) [2] respectively. On 8 December 2021, a combined certificate was issued confirming the plaintiff’s degree of permanent impairment was above the 10% threshold.

3. [3]

   On 9 and 23 December 2021, the insurer applied for review of the separate assessment certificates, being the statutory procedure for review of the combined certificate. [3] The applications were referred to a medical review panel, which, on 17 August and 4 November 2022, undertook medical re-examinations of the plaintiff. However, it was not until 9 January and 12 January 2024 respectively, that the Review Panel issued certificates assessing her respiratory impairment as 0% and her physical impairment at 7%. The present application for judicial review challenges the validity of both certificates issued by the Review Panel, primarily on the basis of the lengthy and unexplained delay in issuing the certificates. That delay was said to invalidate the certificates.

Judicial review proceeding - issues

1. [4]

   The summons seeking judicial review, filed on 28 March 2024, identified the grounds discursively in 31 paragraphs. It did not state “with specificity, the grounds on which the relief is sought”, in accordance with Uniform Civil Procedure Rules 2005 (NSW), r 59.4(c). At the commencement of the hearing, the Court granted the plaintiff leave to rely upon an amended summons, which added two further grounds (one of which was promptly abandoned).

2. [5]

   Nevertheless, the following grounds may be extracted by reference to the separate certificates:

   1. (1)

      sleep disorder certificate:

   2. (2)

      physical injuries certificate:

3. [6]

   The amended summons filed on 9 August 2024 added two grounds challenging the adequacy of the reasons of the Review Panel in respect of each certificate. Those grounds were abandoned at the commencement of the hearing, correctly. By way of explanation of the grounds set out above, two aspects of the statutory scheme for medical assessments must be explained.

4. [7]

   First, s 44(1) of the 1999 Act, as in force in 2018, provided for the State Insurance Regulatory Authority (the Authority) to issue guidelines with respect to four matters, two being relevant for present purposes. As there was an issue as to the legal status of the guidelines issued in 2018, the relevant statutory provisions, as then in force, should be identified:

5. [8]

   Pursuant to s 45(2), permanent impairment guidelines were to be issued under s 44(1)(c) within three months of the commencement of the 1999 Act. Further, s 45(3) required that guidelines could only adopt the provisions of another document “as in force at a time before the issue of the guidelines”. Otherwise, s 45(4) mirrored s 44(7), though the language varied in ways immaterial for present purposes.

6. [9]

   Secondly, although it was common ground that the Permanent Impairment Guidelines applied, there was a dispute as to the application of the Medical Assessment Guidelines issued under s 44(1)(d) of the 1999 Act. Resolution of this dispute required consideration of two statutes which commenced after the date of the plaintiff’s accident in March 2017. The first was the Motor Accident Injuries Act 2017 (NSW) (the 2017 Act), which commenced on 1 November 2017. The second was the Personal Injury Commission Act 2020 (NSW) (the PIC Act), which commenced, together with the Personal Injury Commission Rules 2021 (NSW) (the PIC Rules), on 1 March 2021. It is necessary to resolve this dispute before assessing the plaintiff’s grounds of review.

7. [10]

   On the basis that the 1999 Act, and not the 2017 Act applied, [4] it might be thought that the Medical Assessment Guidelines (version 5), issued on 12 February 2021, pursuant to s 44(1)(d) of the 1999 Act would also apply. Although the PIC Act post-dated both the 1999 Act and the 2017 Act, the Medical Assessment Guidelines were published after the enactment of the PIC Act, expressly stated that they “support the establishment of the Personal Injury Commission on 1 March 2021” and referred to the fact that the savings and transitional provisions in Sch 1 to the PIC Act provided that “pending proceedings and unexercised rights must be determined by applying the law as if [the PIC Act] had not been enacted”. The “Publication note” at the commencement of the Medical Assessment Guidelines stated:

8. [11]

   As the PIC Act provides for the processes of, amongst other things, medical assessment, it is necessary to identify whether that Act, and the PIC Rules, governed the Review Panel proceedings in the present case. The insurer submitted that they did. The relevant provisions are to be found in Div 4A of Sch 1 to the PIC Act, which provides for savings and transitional provisions. The heading to Div 4A is “Completion of existing proceedings”. It has separate defined categories of which the following definitions are relevant:

9. [12]

   It will be recalled that the Medical Assessment Guidelines were said to be necessary in order to determine “pending procedures” and “unexercised rights”. Accordingly, the question was whether the review applications made by the insurer fell within those categories.

10. [13]

    The insurer relied on cl 14F of Sch 1 to the PIC Act which relevantly provides:

11. [14]

    The phrase “pending proceedings completed under subdivision 2” includes, pursuant to cl 14B(2):

12. [15]

    The “new decision-maker” was equipped with the “functions” that the original decision-maker had immediately before the establishment day (cl 14B(4)) and was required to “apply to the completion of proceedings”, the provisions of any Act which would otherwise have applied, which may be understood to include the 1999 Act: cl 14B(4)(c).

13. [16]

    The insurer submitted that the plaintiff’s referral for a determination of her degree of permanent impairment, pursuant to s 60(1) of the 1999 Act, fell within the descriptions of a pending proceeding, and an unheard proceeding. That was because as at the establishment day under the PIC Act, [5] the matter had been referred, but had not been heard or considered. Accordingly, her proceeding was an unheard proceeding which was completed pursuant to cl 14B and therefore fell within the definition of “completed pre-establishment proceedings” in cl 14F. That clause provided that “new review provisions were to apply”.

14. [17]

    The new review provisions relevantly included r 129 of the PIC Rules:

15. [18]

    Thus, while s 63 of the 1999 Act conferred a right of review on the insurer, the provisions of the new PIC Rules governed the review.

16. [19]

    This conclusion is consistent with the apparent intent of the legislation that the substantive requirements be governed by the relevant motor accident legislation, while the procedural steps are governed by the PIC Act, including Sch 1 to that Act.

17. [20]

    The plaintiff resisted this construction of the legislation on the basis that the plaintiff’s unheard pending proceeding remained such until it had been finally determined, a result which was not achieved until any period for bringing an appeal as of right in respect of the proceedings had expired, in accordance with cl 14A(2) of Sch 1.

18. [21]

    There are several reasons for not accepting that approach. The first is that cl 14F applies to pending proceedings which are “completed” under subdiv (2). Pursuant to cl 14B(2) in subdiv (2), unheard proceedings are taken to have been commenced for determination by “the new decision-maker” and may be “determined by the new decision-maker instead of the original decision-maker”. Despite the variation in terminology, from “determined” (in cl 14B(2)(b)), to “the completion of proceedings under this clause” (in cl 14B(4)), and then to “proceedings completed under Subdivision (2)” (in cl 14F), it is clear that a proceeding determined under cl 14B(2) is a proceeding which has been completed under cl 14F(1). Whether or not it has been “finally determined”, cl 14F is engaged. If, arguably, the proceeding has not been “finally determined”, and thus remains a “pending proceeding” within the definition in cl 14A, that is beside the point, because neither cl 14B nor cl 14F refers to a proceeding being “finally determined”.

19. [22]

    The second point is that the definition of “finally determined” is, in any event, not engaged, for several reasons. One is that there is a distinction between a “right of appeal” and a power to seek review of a determination. There is no “right to” a review: pursuant to s 63 of the 1999 Act, the right is to apply to the President of the Commission, who may refer the medical assessment to a review panel for review. Even if the concepts of an “appeal” and a “review” were not distinguishable, there was no procedure for review “as of right”.

20. [23]

    Furthermore, even if a right of appeal vested in the party bringing the “pending proceeding” were engaged, it would not follow that a right of appeal conferred on the unsuccessful party which had not commenced a pending proceeding before the establishment day, and which did not arise until the application had been resolved against it, would engage cl 14A(2) of Sch 1.

21. [24]

    Finally, to speak of a right of appeal which “has not expired” assumes an existing right as at the establishment day. Where there had been no determination of an application as at that day, there could not have been an existing right of appeal.

22. [25]

    For these reasons, the insurer’s submissions should be accepted: the Medical Assessment Guidelines promulgated in 2018 did not apply to the proceedings before the Review Panel.

23. [26]

    This conclusion only affects ground (2)(b) (as identified at [5] above). Against the possibility that the PIC Rules applied, the plaintiff contended that the Review Panel was required, pursuant to r 130, to issue a certificate “as soon as practicable” after conducting a review. At the same time, she conceded that r 130 only applied to a review panel established under s 7.26 of the 2017 Act. There was no suggestion by the insurer that the 2017 Act had any application, and accordingly r 130 had no operation. In short, if the Medical Assessment Guidelines were not engaged, and putting to one side the Permanent Impairment Guidelines, there was no statutory (or otherwise prescribed) temporal constraint on the conduct of the Review Panel.

Delay

1. [27]

   Before addressing the plaintiff’s other grounds of review, it is convenient to explain the nature of the delay experienced in this case. The extent of the delay may be identified at three steps. The first step was the acceptance by a delegate of the President of the Commission of the insurer’s review applications, a step which occurred on 30 and 31 March 2022 respectively. On 11 April 2022, a review panel was established comprising a member of the Commission and two appropriate medical assessors, having regard to the nature of the claimed impairments.

2. [28]

   The second step was the undertaking of separate re-examinations of the plaintiff with respect to each impairment. On 17 August 2022, medical assessor Ian Cameron assessed her physical (musculoskeletal) injuries; on 4 November 2022, medical assessor Margaret Gibson assessed the plaintiff’s sleep disorder. There were periods of four months and seven months between the constitution of the Review Panel and the medical re-examinations. The plaintiff made no complaint as to those periods.

3. [29]

   The third step involved the issue of certificates by the Review Panel. Those certificates were not issued until 9 and 12 January 2024 respectively. It is the delay between the assessments made by the medical assessors in August and November 2022 and the issue of the certificates which gave rise to the principal challenge.

4. [30]

   There can be no doubt that the delay was unacceptable; it was also unexplained. Inquiries were sent to the Commission by the plaintiff’s solicitors in July, August, October and November 2023; the insurer’s solicitor wrote to the Commission in July 2023, and the plaintiff herself sent a personal plea on 1 December 2023. Although both the President of the Commission and the members of the Review Panel were joined as defendants in this Court, they filed submitting appearances and proffered no evidence as to the reasons for the delay. (The joinder of the President was presumably because the plaintiff sought orders setting aside the two certificates and remittal to the Commission for further consideration of the insurer’s applications for review, by a different review panel, the constitution of which would be the responsibility of the President: the 1999 Act, s 63(3).) As must have been apparent to the parties when entering appearances, the necessary result of the plaintiff’s success will be to extend the delay in resolving this issue.

5. [31]

   The plaintiff invited the Court to infer that there was no acceptable justification, an inference which should be accepted. The question, however, is whether the delay invalidated the issue of the certificates.

Grounds 1(a), 2(a): failure to comply with Permanent Impairment Guidelines

1. [32]

   Grounds 1(a) and 2(a) contended that the Review Panel failed to comply with cl 1.21 of the Permanent Impairment Guidelines, which reads:

2. [33]

   The plaintiff submitted that the impairment had been assessed (in each case) in late 2022, whereas the certificate of determination which recorded the “Review Panel assessment of permanent impairment” was only issued in January 2024. The 14- (or 17-) month delay between the medical assessment and the issuing of the certificates was said to constitute a breach of cl 1.21. Further, the breach was said to constitute an error of law on the face of the record and also a constructive failure to perform the duty imposed on the Review Panel under the 1999 Act.

3. [34]

   The language of “evaluation”, “assessment”, and “determination” is imprecise. The general factors identified in cl 1 of the Permanent Impairment Guidelines, immediately preceding the heading “Permanent impairment”, are as follows:

4. [35]

   Clause 1.21 is one of the four clauses appearing under the heading “Permanent impairment”. The first two (cll 1.19 and 1.20) address the need to consider that the injuries have stabilised, in order for the impairment to be permanent; if stability has not been achieved, the impairment should not be assessed: cl 1.19. Clause 1.21, read in that context, states that some future assessment based on an expectation of stability, should not be made. Further, cl 1.22 excludes the possibility of a predicted deterioration. So understood, the thrust of cl 1.21 is not directed to any possible lapse of time between the date of a medical examination and the date of issue of a certificate, but to the need not to predict the future.

5. [36]

   Further, the reference to “evaluation” in cl 1.21 may be traced to cl 1.17, which identifies the process undertaken by the medical assessor, stated in cl 1.18 to be a three-stage process, commencing with a “review and evaluation of all the available evidence”. The term “evaluation” is not used to refer to the second stage (the interview and clinical examination), nor to the third stage (the issue of a certificate).

6. [37]

   Read in context, the use of the term “evaluation” in cl 1.21 is significant: consistently with cl 1.18, it refers to the process of assessing historical records (step 1). It makes sense in that context to remind a review panel that it is not making an assessment as at some earlier point in time, when the documents were prepared, but as to the degree of impairment at the time of its assessment. The process of evaluation of the historical records is to be undertaken, cl 1.21 states, for the purpose of assessing current impairment. Neither the past, nor the future, is determinative. But cl 1.21 is not directed to the different times at which the three steps in the assessment are carried out.

7. [38]

   If, over the period of more than a year while the decision was pending, the plaintiff’s condition had deteriorated, it might have been necessary for that to be addressed by the Review Panel, if drawn to their attention. [7] Although the plaintiff wrote to the President on December 2023, in understandably impassioned terms, she did not suggest that her condition resulting from the injuries caused by the accident had materially deteriorated.

8. [39]

   The Review Panel clearly directed its assessment to the plaintiff’s current degree of impairment. There was no error of law. Grounds 1(a) and 2 (a) should be rejected.

Ground 2(b): failure to comply with Medical Assessment Guidelines

1. [40]

   The second alleged error with respect to the physical injuries determination was the failure to comply with a specific time limit set out in the Medical Assessment Guidelines with which, it was submitted, “the panel is expected to comply”. [8] This ground should be rejected on the basis that the Medical Assessment Guidelines were not engaged, as explained in discussing the transitional provisions. However, against the possibility that that conclusion is wrong, it is convenient to assess the ground on its merits.

2. [41]

   The Medical Assessment Guidelines, with which (it is assumed) the Review Panel was required to comply pursuant to s 133(2) of the 1999 Act, contained a number of temporal requirements. The plaintiff submitted the panel’s failure to comply constituted an error of law.

3. [42]

   Under the heading “Review Panel assessment”, the following provisions appear:

4. [43]

   On 14 April 2022, Mr Thompson, on behalf of the Review Panel, sent a set of directions issued by the panel. The plaintiff correctly inferred that there must have been an “initial meeting” on or shortly before that date. In any event, she accepted that the meeting was held within 30 days of the date the Review Panel was convened, in compliance with cl 6.19. The significance of that date was, however, that cl 16.22 provided that a review panel “shall issue its determination” within 60 days of the “initial meeting”. Thus, cll 16.19 and 16.22 in combination required that the certificate of determination be issued within 90 days of the convening of the Panel. Either unnecessarily, or perhaps inconsistently, cl 16.24 required the Panel to act “as expeditiously as practicable in the circumstances”.

5. [44]

   It should be accepted that the Review Panel did not comply with those temporal obligations: the question is whether its failure to do so constituted an “error of law” appearing on the face of the record, namely by reference to the convening of the panel and the date on the certificate of determination. In the alternative, it was said to be a constructive failure to perform the panel’s statutory function.

6. [45]

   If there is a time fixed by the law within which some act is to be taken, failure to do so is not readily characterised as an “error of law” on the face of the record (if there be one); rather it is a legally ineffective act. If a person commences legal proceedings out of time, the proceedings may be struck out as incompetent. In the case of a statutory authority, the act may properly be described as a failure to exercise its statutory function. However, in circumstances where there is no provision for an extension of time, the effect of the plaintiff’s contention is that the Review Panel effectively lost its function 90 days after it was convened, when no certificate of determination had been issued, namely on 10 July 2022. Indeed, it may have constructively abandoned its function when it arranged to examine the plaintiff on 17 August 2022 and on 4 November 2022, well after the 90-day period would have expired.

7. [46]

   Such an understanding of the Medical Assessment Guidelines is so unlikely that it is necessary either to reconsider that understanding, or to conclude that the Guidelines so understood are inconsistent with the statute and therefore invalid. It is sufficient to conclude that the plaintiff’s proposed reading of the Medical Assessment Guidelines should not be accepted. First, the Guidelines generally are expressed in mandatory form, namely that the panel or the proper officer or any other party involved “is to” do certain things. It does not follow that compliance with such a requirement is a jurisdictional fact, so that failure to comply renders a step, or the ultimate determination, invalid.

8. [47]

   In Parisienne Basket Shoes Pty Ltd v Whyte [9] the High Court was dealing with a question as to whether a time limitation on bringing proceedings imposed a restraint on the jurisdiction of the court to hear the matter. Dixon J stated (at 391):

9. [48]

   This case does not concern the jurisdiction of a court, but it does concern what is said to be a jurisdictional limit on a medical review panel. It is implausible that a set of guidelines, made by a statutory authority, and not even a form of delegated legislation, [10] should have intended such an implausible result. In those circumstances, a statement that something “is to” happen is, in the context, a “guideline”, failure of compliance with which will not render any later step invalid. The effect may be to create an expectation; the times specified are best identified as aspirational.

10. [49]

    It is not immaterial that when a re-examination is required certain other parts of the guidelines are said to apply: cl 16.20. One of those involves a power of the medical assessor to dismiss an application where the claimant has not made himself or herself available for examination within 12 months. Such a power would be either otiose or meaningless where a review panel loses its functions after 90 days.

11. [50]

    It is not necessary to examine the precise limits of the statutory powers under which the Medical Assessment Guidelines were made. However, it may be recalled that the Authority was given power under s 44(1) of the 1999 Act to issue medical guidelines “with respect to” the assessment of the degree of permanent impairment of an injured person (par (c)), and the procedures for the referral of disputes for review of assessments, and the procedures for such reviews (par (d)). The latter, par (d), conferred the power to make the Medical Assessment Guidelines: it is at least arguable that the power is meant to be facilitative and not to impose temporal limitations which are not in the statute. Even the use of the phrase “guidelines” is significant in that respect.

12. [51]

    Suffice it to say that there was neither an error of law on the face of the record, nor a constructive failure to exercise jurisdiction, by the Review Panel in failing to comply with the temporal requirements of the Medical Assessment Guidelines identified in the ground. Ground 2(b) must be rejected.

Grounds 1(b) and 2(c) – procedural unfairness

1. [52]

   The claim that the delay caused procedural unfairness to the plaintiff relied, not upon any breach of the guidelines or other express provisions of statute or regulation, but rather upon the general law principle that all executive power must be exercised in a procedurally fair manner. That usually means that a claimant must be given a reasonable opportunity to present his or her claim and to respond to any adverse material which the decision-maker has available for consideration. There are circumstances in which delay can impinge on that form of procedural fairness. However, that is not this case: there is no complaint that the steps taken to allow the plaintiff to make submissions, to provide material and for an interview and re-examination by a panel member, were inadequate.

2. [53]

   There is, however, another aspect of procedural unfairness which can arise from excessive delay: that is the loss of an opportunity to have one’s case fairly considered by the tribunal or decision-maker. As explained by Gleeson CJ in NAIS v Minister for Immigration & Multicultural & Indigenous Affairs: [11]

3. [54]

   In NAIS, the delay between the time at which the principal applicants (a husband and wife of different religious persuasions) were interviewed by the Refugee Review Tribunal, and the date of the determination of their claims for protection visas on the basis of a well-founded fear of persecution in their home country, Bangladesh, was five years. As Gleeson CJ further noted:

4. [55]

   For reasons which will be explained, the decision of the Review Panel with respect to the sleep disorder did not depend upon the interview and medical examination of the plaintiff. On the other hand, the review of her physical injuries did rely in a material respect on the interview and medical assessment conducted by assessor Cameron. Consistently with the approach taken in NAIS, it is appropriate to have regard to the reasons given by the Review Panel to determine whether the delay did potentially impair the Panel’s capacity to make the necessary assessment.

5. [56]

   Although the reasons are no longer attacked as legally insufficient, it is necessary to have regard to their purpose and proper scope in order to address the question of what they reveal about the Review Panel’s functioning. The nature of the reasons required of a medical assessment panel was explained by the High Court in Wingfoot Australia Partners Pty Ltd v Kocak [12] in the following passage:

6. [57]

   The High Court identified the purpose of the (Victorian) statute in requiring that the Panel give reasons to be “that persons affected by the opinion automatically be provided with a written statement of reasons adequate to enable a court to see whether the opinion does or does not involve any error of law”. [13] The judgment continued:

7. [58]

   These principles, including the purpose of the requirement for written reasons identified in s 61(9) of the 1999 Act, apply equally to that statutory scheme. [14]

8. [59]

   The plaintiff’s abandoned written submissions noted that there was “no other report provided at or around the time of the re-examination”, with the result that the plaintiff was left guessing as to how the Panel made its findings. It asked, rhetorically, were the findings made “from notes taken at the re-examination” and if so, where are those notes? However, the answer to the rhetorical questions was straight-forward. The reasons of the Review Panel summarised the history of medical examination and the parties’ submissions from pars 1-119. Between that material and the next heading, “Findings” (at par 120) there are four full pages headed “Re-examination” which referred to the re-examination by medical assessor Cameron on 17 August 2022 and set out verbatim (as indicated by quotation marks) that it was his report.

9. [60]

   The report of the re-examination was detailed, containing history provided by the plaintiff, factual findings made by the assessor, and an evaluation of the physical impairments by reference to seven elements, identifying the degree of impairment in each case and providing a conclusion that the impairments in combination give a total of “7% WPI”.

10. [61]

    The statement of reasons then noted that the review was “a new assessment of all matters with which the medical assessment is concerned” (par 120), that the Panel “is not required to choose between competing medical opinions and is required to form its own opinion” (par 121) and that the Panel “adopts the re-examination report of medical assessor Cameron in its reasons and adds the following further reasons” (par 122). Under the heading “Causation”, the Panel set out further reasons for rejecting claims of a bunion on the left great toe and a right knee injury as not resulting from the accident. It then set out its determination as to the degree of permanent impairment of each of the injuries found to be caused by the accident, findings which effectively repeated the findings of medical assessor Cameron.

11. [62]

    The reasons were comprehensive, clear and logical. There is no suggestion of omission. While it is not known when the bulk of the statement of reasons was prepared, any delay in the preparation of the background, the assessment of medical histories and the summary of the parties’ submissions could readily have been undertaken belatedly without any risk to the soundness of the consideration. It is the kind of assessment which may readily be repeated by an appeal court based on the same documentary record as that considered by a trial judge, a year, or two years or more, after a trial has been concluded.

12. [63]

    If there were some indication from the reasons that the re-examination report of medical assessor Cameron had not been undertaken contemporaneously with the examination, the Court would infer that excessive delay had likely affected the assessor’s capacity to remember and comment upon the examination. However, although the precise form in which the report was made is not known, it is evident that it was made in a detailed form contemporaneously with the re-examination. This was not a case in which the credibility or reliability of the plaintiff was in issue. There is no suggestion that her own history of events was not accepted, nor that it was not faithfully recorded. The detail of measurements made by the assessor was recorded, for example, in the following terms:

13. [64]

    Such detail was to be found throughout the four pages of the re-examination report. Any suggestion that the report was not prepared contemporaneously with the re-examination would be implausible. Indeed, no such submission was expressed. Accordingly, although the delay was excessive and unexplained, it has not been shown there is a real and substantial risk that the Review Panel’s capacity to make a proper assessment of the plaintiff’s degree of permanent impairment was reduced. The challenges based on procedural unfairness must be rejected.

Ground 1(c): sleep disorder determination

1. [65]

   Ground 1(c) concerned the manner in which the Permanent Impairment Guidelines picked up the provisions of the AMA4 Guides.

2. [66]

   The original medical assessment prepared by medical assessor Grainge identified the injury referred for assessment as “respiratory/sleep disorder”. He assessed “chronic insomnia and sleep fragmentation” as giving rise to a permanent impairment of 8%. However, under the heading “Clinical examination”, assessor Grainge noted that the plaintiff’s “respiratory examination was unremarkable” and her “cardiovascular examination was also unremarkable”. He also noted (correctly) that the AMA4 Guides dealt with impairment criteria for sleep and arousal disorders in Table 6 of Chapter 4, “The Nervous System”. The accompanying text identified categories of impairment which may arise from sleep disorders as relating to various body systems and stated that “sleep disorders relating to these systems should be evaluated according to the Guides chapters that deal with the respective systems”. The text also noted that “[t]he subject of sleep disorders is considered also in the chapter on the respiratory system”. These statements were noted by assessor Grainge; he also referred to the reference to sleep disorders in Chapter 5, dealing with the respiratory system. Despite having found no respiratory problem, in assessing permanent impairment at 8%, he identified the body part or system as “respiratory – sleep fragmentation”, but without reference to any part of the AMA4 Guides.

3. [67]

   The Review Panel referred to the determination of assessor Grainge in the following part of its “Findings”:

4. [68]

   The Review Panel then expressed its own opinion in the following terms:

5. [69]

   The plaintiff challenged this reasoning by taking issue with the panel’s interpretation of cl 1.38 of the Permanent Impairment Guidelines.

6. [70]

   The plaintiff submitted that cl 1.38 merely stated that pain itself cannot form the basis for a separate allowance for permanent impairment; it did not state that there cannot be an assessment of permanent impairment where the pain causes impairment of a body part or system. So far as it goes, this submission may be accepted: the separate assessment of pain pursuant to Chapter 15 of the AMA4 Guides is precluded. What is not precluded is the ability to assess pain through assessment of impairment of another body part or system. However, the Review Panel reasoned that the body part or system which gives rise to the pain is the body part or system which is to be assessed. It reasoned that it is only by having regard to a body part or system affected by injuries resulting from an accident in a way provided for in the AMA4 Guides that a level of permanent impairment can be determined.

7. [71]

   Indeed, so much was implicit in the referral of the “medical dispute” for assessment which identified the body part or system as “respiratory”. The subject of assessment was therefore so limited. [15] Once the Panel (and indeed the original assessor) was satisfied that there was no degree of impairment of the respiratory system, the plaintiff was not entitled to any degree of permanent impairment related to that system. As Chapter 1 of the AMA4 Guides (though not applicable for assessing permanent impairment) noted, “[t]he medical, social and economic consequences of pain are enormous”. [16] That statement recognises medical effects on a variety of body parts and systems. However, sleep is not identified as a body part or system to be assessed as contributing to the level of permanent impairment. Like pain itself, such indirect effects must be incorporated into the assessment of the body part or system which is the source of the pain.

8. [72]

   That reasoning does not identify a legal principle. The proper application of the Permanent Impairment Guidelines and the AMA4 Guides is a matter for the medical assessors. If they adopt an approach which is manifestly unreasonable, there may be a basis for judicial review. No such ground was relied upon, nor could it have been in the present circumstances.

9. [73]

   If the proper construction of the Permanent Impairment Guidelines, with the AMA4 Guides, is a question of law to be resolved by this Court, in my view the approach adopted by the Review Panel has not been shown to be erroneous. Indeed, if the Court’s view were relevant, I am affirmatively satisfied that the Panel’s reasoning was correct.

10. [74]

    However, whether this is a matter for the Court – and I do not think it is – involves a question of statutory interpretation. There are a number of factors material to that exercise. First, the AMA4 Guides are not a legislative document: they are not found in a statute or in regulations made under a statute. As Leeming JA explained in Ali v AAI Ltd, [17] even the Medical Assessment Guidelines are not a statutory instrument, though for certain purposes of the 1999 Act they are treated as such. (That treatment would not be necessary were the Guidelines actually a statutory instrument.) The AMA4 Guides are one step further removed, as they are adopted (and in part adapted) by the Medical Assessment Guidelines.

11. [75]

    Secondly, the AMA4 Guides do not define the rights of parties, as do contracts, wills and other legal documents. Nor do they confer powers. Rather, they are, in the terms of their self-description, “guides” or “guidelines”. They are a form of “soft law”. [18]

12. [76]

    Thirdly, they are prepared by, and addressed to, those with medical expertise. As Kagan J said in a persuasive dissent in Loper Bright Enterprises v Raimondo, [19] discussing whether a population of an endangered species is a “distinct” population:

13. [77]

    This passage, echoing the reasoning of Dixon J in Parisienne Basket Shoes, supports the view that judicial restraint in questions of statutory interpretation should temper judicial hubris: it is quite unlikely that the legislature would, absent clear words, commit such a question to determination by a court, rather than by the specialist expert body it has established to administer the legislation.

14. [78]

    What Parliament did in the 1999 Act was to confer power on a statutory authority to promulgate guidelines for assessment of permanent impairment. The constraint it imposed on the Authority in the exercise of the power was that the guidelines “must be developed in consultation with relevant medical colleges…”: 1999 Act, s 44(6). Further, it expressly permitted the adoption of provisions of other publications, no doubt having the AMA4 Guides in mind: s 44(3). The objects of the 1999 Act are stated in functional terms (s 5) but the relevant purpose, apparent from the structure of the Act, is to remove medical disputes arising from injuries caused by motor vehicle accidents from the courts. To imply the conferral on the courts of the function of determining the meaning of guidelines devised with medical input for the determination of those disputes is as implausible as requiring judicial determination of the correctness of individual assessments. Determinations are subject to review for legal error, but not subject to appeal. A manifestly unreasonable reading of the AMA4 Guides, or a refusal to apply them, would be reviewable. Short of that, their construction and application are matters for medical assessors, subject to the guidance provided by the Authority.

15. [79]

    Ground 1(c) should be rejected. That means that the other grounds relating to the sleep disorder certificate are irrelevant: the delay could not have affected the application of cl 1.38, which provided an independent and sufficient basis for revoking the sleep disorder certificate.

Costs

1. [80]

   In the course of the hearing, the Court raised an issue as to whether the insurer sought an order for costs against the Commission. [21] Such an order would turn on the responsibility of the Commission for the delay of the Review Panel in issuing its certificates which delay formed the basis of the application for judicial review by the plaintiff. If the plaintiff were successful, the insurer would be liable not only for its own costs, but also for the costs of the plaintiff. If the insurer were successful, it would be entitled to an order for costs against the plaintiff, but with a real possibility that, as a practical matter, costs would not be recoverable. If the insurer were to seek costs against the Commission, the Commission would need to be given an opportunity to be heard, as the President’s submitting appearance did not extend to an adverse costs order. If the insurer seeks to make such an application, it should do so by a motion within 14 days of delivery of this judgment.

2. [81]

   In the meantime, the plaintiff filed a submission following the hearing (and indeed following the listing of the matter for judgment) applying for a certificate under the Suitors’ Fund Act 1951 (NSW). Such a certificate is available, on application, for a respondent to “an appeal against the decision of a court”: s 6(1). There are three difficulties facing that application.

3. [82]

   First, the proceeding is not by way of an appeal, but by way of the distinctly different process of judicial review pursuant to s 69 of the Supreme Court Act. It is true that the term “appeal” is defined to include “any motion for a new trial and any proceeding in the nature of an appeal”: s 2(1). There are authorities which have held that an application for judicial review constitutes a proceeding “in the nature of an appeal”, because it seeks to set aside the legal consequences of a judicial or administrative decision on the basis of a form of error of law. It thus bears close comparison with an appeal based on an error of law. There are, however, authorities to the contrary. [22]

4. [83]

   The second difficulty is that a medical review panel is not, in ordinary parlance a “court”. The term “court” is also defined in the Suitors’ Fund Act, to include “such tribunals or other bodies as are prescribed”: s 2(1). No tribunals or other bodies have been prescribed, casting doubt on whether any body other than a court qualifies. Although there are decisions of single judges giving certificates under the Suitors’ Fund Act in respect of judicial review proceedings from decisions under the 1999 Act, only two involve medical review panels and neither of them provided reasons referring to the statutory power in granting the certificate. [23] There are reasons for thinking that the function of medical assessors is closer to that of a body giving an expert opinion than that of a court or tribunal.

5. [84]

   These issues are intriguing and have been the subject of extrajudicial discussion. [24] However, they need not be pursued because the third difficulty faced by the plaintiff is insuperable. She is not a “respondent” in this Court, but the moving party. Only the defendant could make an application, and it is almost certainly ineligible by reason of the constraints on applications imposed by s 6(7), dealing with corporations. In any event, it has not made such an application. The plaintiff’s application is refused.

Conclusions

1. [85]

   The plaintiff’s application for judicial review must be refused. The amended summons is dismissed with costs.