Insurance Australia Group Limited t/as NRMA Insurance v Saraceni

1. [1]

   HIS HONOUR: By a further amended summons filed in Court on 31 July 2019, Insurance Australia Group Ltd, trading as NRMA Insurance (“the plaintiff”) sought orders in the supervisory jurisdiction of this Court in the nature of certiorari, or alternatively, setting aside and declaring invalid a decision (and/or medical assessment and Review Panel Certificate) of a Medical Review Panel dated 4 December 2018. That Medical Review Panel was comprised of three medical assessors appointed by the State Insurance Regulatory Authority (“SIRA”): Dr Thomas Newlyn (Chairperson), Dr Samson Roberts and Dr Peter Anderson. Drs Newlyn, Roberts and Anderson, in their capacity as medical assessors, were listed jointly as the third defendant. The plaintiff also sought an order in the nature of a mandamus, remitting the matter the subject of the Review Panel decision and the Review Panel Certificate to the SIRA for reallocating to a different constituted review panel and other relief, if necessary.

FACTUAL BACKGROUND

1. [2]

   These proceedings arise from a claim by Mr Eduardo Saraceni (“the first defendant”) for damages under the Motor Accidents Compensation Act 1999 (NSW) (“the Act”) for injuries allegedly caused by a motor vehicle accident on 28 October 2016.

2. [3]

   The first defendant suffered from post-traumatic stress disorder (“PTSD”) as a result of the accident.

3. [4]

   The plaintiff is the Compulsory Third Party (“CTP”) insurer of the vehicle at fault in the accident.

4. [5]

   The second defendant, SIRA, is a State government agency which administers the entire CTP insurance and compensation scheme under the Act.

5. [6]

   The third defendant is the medical assessors that comprised the Medical Review Panel, constituted under s 63 of the Act. Medical assessors are appointed under s 59 of the Act, and are part of the Medical Assessment Service (“the MAS”), a unit established pursuant to s 57A of the Act.

6. [7]

   There was a medical dispute regarding the first defendant’s degree of whole person impairment pursuant to s 58(1)(d) of the Act, such that his entitlement to damages for non-economic loss, pursuant to s 131 of the Act, was in issue.

7. [8]

   On 13 July 2017, Dr Peter Snowdon provided a medico-legal report assessing the first defendant as having 22% whole person impairment.

8. [9]

   On 26 November 2017, Dr Matthew Jones provided a medico-legal report assessing the first defendant as having 5% whole person impairment.

9. [10]

   The first defendant applied to the MAS for an assessment of a permanent impairment dispute on 11 December 2017. Included in that application was a form indicating that the first defendant had assessed his difficulty in concentrating at 4 (“extremely”).

10. [11]

    The first defendant was assessed by medical assessor, Dr Alan D Jager (hereinafter, “Assessor Jager”). Assessor Jager provided a certificate under Pt 3.4 of the Act on 28 March 2018 stating that the first defendant’s PTSD gave rise to a permanent impairment which was not greater than 10%. (Assessor Jager assessed that the first defendant’s PTSD gave rise to a 5% whole person impairment and made a 1% provision for “adjustments % for the effects of treatment”).

11. [12]

    The first defendant successfully applied to the proper officer of the SIRA to refer the medical assessment to the third defendant, under s 63(1) of the Act.

12. [13]

    On 4 December 2018, the third defendant issued a “Review Panel Certificate” determining that the first defendant’s PTSD, caused by the motor accident, gave rise to a whole person impairment which was greater than 10%. (The reasons given by the third defendant indicated the total percentage of whole person impairment for assessed psychiatric injuries caused by the motor vehicle accident was 15%).

13. [14]

    In substance, by the further amended summons, the plaintiff effectively challenged the decision of the third defendant in that respect.

GROUNDS FOR JUDICIAL REVIEW AND THE RELIEF CLAIMED

1. [15]

   As stipulated in the further amended summons, the plaintiff contended that the decision of the third defendant consisted of three errors which were expressed as follows:

2. [16]

   The errors relied upon for judicial review shall be referred to as grounds 1, 2 and 3, respectively, for each corresponding numbered error.

3. [17]

   The relief claimed was as follows:

   1. (1)

      An order in the nature of certiorari or, alternatively, a declaration setting aside or declaring invalid the decision and/or medical assessment and Review Panel Certificate of the third defendant, the medical assessors review panel as was constituted by the SIRA, namely, the assessment dated 4 December 2018, made purportedly pursuant to ss 63 and 61 of the Act.

   2. (2)

      An order in the nature of mandamus remitting the matters the subject of the review panel decision and the Review Panel Certificate to the SIRA for reallocation of the matter to a differently constituted medical assessors review panel for determination of the matter according to law.

   3. (3)

      If necessary, an interim order or stay in the nature of prohibition or an interlocutory injunction preventing the defendants or any of them or their officers, servants or agents from acting on or taking any further step in reliance on the Review Panel Certificate until the final determination of these proceedings or until further order.

   4. (4)

      Any such further or other order as the Court deems fit.

   5. (5)

      Costs.

LEGISLATIVE SCHEME

1. [18]

   Section 131 of the Act provides that no damages may be awarded for non-economic loss unless the degree of permanent impairment of the injured person as a result of the injury caused by the motor vehicle accident is greater than 10% (see also ss 58(1)(d) and 61(10) of the Act).

2. [19]

   Section 132(1) of the Act provides that, in the case of a dispute as to the degree of permanent impairment, a court may not award damages for non-economic loss unless the degree of permanent impairment has been assessed by a medical assessor under Pt 3.4 of the Act.

3. [20]

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

4. [21]

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

   1. (1)

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

   2. (2)

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

   3. (3)

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

5. [22]

   Section 57A provides:

6. [23]

   Section 3 of the Act provides: “Authority means “the State Insurance Regulatory Authority constituted under the State Insurance and Care Governance Act 2015”.

7. [24]

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

8. [25]

   Section 60(1) provides that a medical dispute may be referred to the MAS under the authority of the SIRA.

9. [26]

   Section 61 of the Act provides that the medical assessors to whom the medical dispute is referred are to give a certificate as to the matters referred for assessment. Assessors Newlyn, Roberts and Anderson had this obligation and issued a Review Panel Certificate on 28 March 2018 (“the Certificate”).

10. [27]

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

11. [28]

    Section 61(2) is subject to the provisions of s 63. Section 63(1) is extracted below:

12. [29]

    The first defendant correctly emphasised that in discharging its functions the third defendant is considering the assessment “a fresh” on the day of the assessment: Frost v Kourouche (2014) 86 NSWLR 214; [2014] NSWCA 39 (“Frost”) at [9].

13. [30]

    The Act provides for the making of guidelines with respect to medical assessments. Those guidelines were a focal point of the proceedings.

14. [31]

    As to the guidelines for the assessments conducted by medical assessors, s 44(1) provides:

15. [32]

    Section 65 provides:

16. [33]

    Section 133 provides:

The Guidelines

1. [34]

   The SIRA issued the Motor Accident Permanent Impairment Guidelines (effective 1 June 2018), with respect to motor accidents occurring between 5 October 1999 and 30 November 2017 (“the Guidelines”). They were Motor Accident Medical Guidelines for the purposes of s 44(1) of the Act. Section 133 provides that the assessment of permanent impairment is to be made in accordance with those guidelines. Further, ss 44(1)(d) and 65(1) of the Act provide that guidelines may establish procedures for the review of assessments made under Pt 3.4 of the Act.

2. [35]

   The Preamble to the Guidelines stated:

3. [36]

   Under the heading “Permanent Impairment”, there are four relevant headings: “Introduction”, “Application of Guidelines”, “Causation of Injury” and “Consistency”. Those aspects of the Guidelines are in the following terms:

4. [37]

   There are a number of entries under the heading “Mental and behavioural disorders”, which are relevant. Under the sub-heading “Introduction” the following entries appear:

5. [38]

   Under “Assessment of mental and behavioural disorders” the following entries appear:

6. [39]

   The plaintiff drew particular attention to cl 1.219.5, which appears under the heading, “The psychiatric impairment rating scale”. Extracted below are cll 1.219 and 1.220:

7. [40]

   The Guidelines provide tables referred to in the psychiatric impairment rating scale. Table 11 concerns “Self-care and personal hygiene” and is extracted below:

8. [41]

   Table 15, which corresponds to cl 1.219.5, concerns “Concentration, persistence and pace” and is extracted below:

9. [42]

   As to the calculation of psychiatric impairment, the Guidelines provide as follows:

10. [43]

    Table 17 is “Conversion table” and is extracted below:

11. [44]

    The following “Explanatory note” accompanied the above table:

The Former Guidelines

1. [45]

   The plaintiff also placed reliance on the former guidelines dated 10 October 2007. Those guidelines were entitled “Permanent Impairment Guidelines” and were issued by the Motor Accidents Authority (“MAA”) (“the former Guidelines”).

2. [46]

   The former Guidelines were introduced by an “Explanatory Note” in which it was stated:

3. [47]

   There was an “Introduction” to the former Guidelines which was a counterpart to the Guidelines (see cll 1.1-1.2). Under that heading to the former Guidelines, the following appeared:

4. [48]

   Under the subheading “Application of Guidelines” the following appeared:

5. [49]

   Under the subheading “Consistency” the former Guidelines provided:

6. [50]

   The plaintiff contended the following differences are apparent between the Guidelines and the former Guidelines:

   1. (1)

      As to paragraph titled “Consistency”, whilst the wording is largely the same, in the former Guidelines cl 1.43 provided: “The inconsistencies should be brought to the claimant’s attention”, whereas in the Guidelines, cl 1.41 provides: “The inconsistencies must be brought to the claimant’s attention”.

   2. (2)

      Further, in the former Guidelines, cl 1.43 stated: “The claimant will then have an opportunity to confirm the history…”. Under the Guidelines, cl 1.41 states that “[t]he injured person must have an opportunity to confirm the history...”.

   3. (3)

      In the former Guidelines, cl 1.2 is bolded, whereas in the Guidelines any bolding has been removed. The Guidelines no longer have “bold” and “unbolded” sections.

   4. (4)

      It was submitted that the Guidelines are more emphatic and mandatory, as opposed to the former Guidelines, with respect to the aforementioned use of the word “must” rather than “should” and the emboldening of the words.

7. [51]

   As to the more emphatic and mandatory nature of the words “must” in cl 1.41 of the Guidelines rather than “should” in cl 1.43 of the former Guidelines, the plaintiff referred to Dominice v Allianz Australia Insurance Ltd (2017) 81 MVR 249; [2017] NSWCA 171 (“Dominice”) at [61], in which the plaintiff submitted that cl 1.43 of the Guidelines exists as a safeguard against the drawing of unfair conclusions that may affect either party’s interest, particularly in circumstances where there are discrepancies between a claimant’s presentation to different medical assessors. The provisions of cl 1.43 were to ensure procedural fairness.

8. [52]

   The plaintiff then made reference to the judgment of Simpson JA (with whom Emmett AJA agreed), concerning cl 1.43, in Dominice at [61] and [70]:

9. [53]

   The first defendant sought to distinguish Dominice in the present proceedings. I will return to this issue.

10. [54]

    As to the relevance of emboldened words in the former Guidelines and, in particular, the absence of emboldening in the Guidelines, the plaintiff referred to Boyce v Allianz Australia Insurance Ltd (2018) 96 NSWLR 356; [2018] NSWCA 22 (“Boyce”), specifically, the statement of Basten JA at [18], which concerned cl 1.2 of the former Guidelines:

11. [55]

    The plaintiff submitted that non-bolded words in the former Guidelines may still be mandatory if their terms say they are. The plaintiff submitted that, in the Guidelines, the result of removing the emboldening is that if the terms are mandatory in their nature, then the Guidelines will stipulate as such (see Boyce at [18]-[19]).

12. [56]

    In the result, the plaintiff submitted that the Guidelines are “mandatory” with respect to cl 1.41 by the use of the word “must” rather than “should”.

13. [57]

    Further, the plaintiff submitted the consequence of a failure to comply or adhere to the Guidelines when expressed in mandatory terms can, depending on the facts of the case, constitute a failure to perform a statutory function or a constructive failure to exercise jurisdiction.

MAS GUIDELINES

1. [58]

   Pursuant to s 44(1)(d) of the Act, the MAA published Medical Assessment Guidelines, with respect to the procedures for the referral of disputes for assessment or review of assessments, and the procedure for assessments and Review Panel assessments under Pt 3.4 of the Act. Those guidelines shall hereinafter be referred to as “the MAS Guidelines”.

2. [59]

   The MAS Guidelines commence by setting out the objects at cll 1.13 and 1.14 as follows:

3. [60]

   Permanent impairment dispute are referred to in cl 13.5 as follows:

4. [61]

   The arrangements for Review Panel assessment appear in cl 16.21. Clause 16.24 provides:

THE ASSESSMENT BY ASSESSOR JAGER

1. [62]

   Assessor Jager’s assessment of the first defendant’s current functions was as follows:

2. [63]

   Assessor Jager found no inconsistencies in the first defendant.

3. [64]

   Assessor Jager’s determination as to permanent impairment was as follows:

THE ASSESSMENT BY THE THIRD DEFENDANT

1. [65]

   The third defendant examined the first defendant on 12 November 2018.

2. [66]

   As to the assessment, the third defendant reviewed the following history given by the first defendant to Assessor Jager:

3. [67]

   The first defendant’s description of his current symptoms as set out in the third defendant’s assessment was as follows:

4. [68]

   Under the heading “Mental State Examination”, the third defendant, inter alia, stated:

5. [69]

   As to “Current Functioning”, the third defendant recorded:

6. [70]

   There next appears a heading in the third defendant’s assessment, “Consistency of Presentation”, in which the following entry appears:

7. [71]

   Under the broad heading “Panel Deliberations”, there appears a heading “Stabilisation” wherein the third defendant stated:

8. [72]

   Next follows the heading, “Psychiatric Diagnosis”. The plaintiff directed attention to the following passages:

9. [73]

   The next major heading in the assessment of the third defendant is “Panel Decision”. Under that heading, the third defendant applied the psychiatric impairment rating scale. The assessments were as follows:

10. [74]

    The plaintiff contrasted the score of “3” with the score given by Assessor Jager’s of “2”.

THE REPORT OF DR MATTHEW JONES

1. [75]

   Dr Jones was engaged by the insurers. He gave his report about a year before the assessment by the third defendant.

2. [76]

   Under the heading, “Recent Functioning”, Dr Jones stated:

3. [77]

   Dr Jones answered a series of questions posed by the plaintiff. As to the relationship between the first defendant’s injuries and the accident, Dr Jones stated:

4. [78]

   Under the heading “Social Functioning”, Dr Jones gave the following answer to the stated question:

5. [79]

   As to permanent impairment, Dr Jones set out his determination as to permanent impairment in tabular form. Whilst the plaintiff’s written submissions relied upon all of the categories contained in the table extracted in Dr Jones’ report vis-à-vis permanent impairment, in oral submissions, contentions were ultimately confined to “Concentration, persistence and pace”. As to “Concentration, persistence and pace”, Dr Jones determination is extracted below:

DR PETER SNOWDON

1. [80]

   Dr Snowdon assessed the first defendant at the request of his solicitor. Dr Snowdon’s first report was dated 13 July 2017.

2. [81]

   Under the heading, “History of Presenting Complaints”, Dr Snowdon observed:

3. [82]

   Under the heading, “Review of Psychological Symptoms”, Dr Snowdon stated:

4. [83]

   Under the heading, “Mental State Examination”, Dr Snowdon stated:

5. [84]

   The plaintiff pointed to different classes assessed by Dr Snowdon with respect to each category on the impairment scale, noting that Dr Snowdon opined, as earlier noted, an aggregate whole personal impairment of 22%.

6. [85]

   As for the category “Concentration, position and pace”, Dr Snowdon opined the class of “3”. His reason for that finding was as follows:

The Plaintiff’s Submissions

1. [86]

   In summary, the plaintiff made the following submissions in support of this ground:

   1. (1)

      The review panel failed to comply with cl 1.41 of the Guidelines and failed to afford procedural fairness “generally”, in that the third defendant failed to bring its findings of inconsistencies to the first defendant’s attention and to give it a chance to respond.

   2. (2)

      It has been held by the Court of Appeal that cl 1.41 requires that procedural fairness be afforded to both claimants and insurers (and further, exists to ensure accuracy as well).

   3. (3)

      The Guidelines require that the evaluation of impairment should only consider the impairment at the time of the assessment (cl 1.20). However, this co-exists with the requirement under cl 1.41. In any event, cl 1.20 cannot abrogate the duty to provide procedural fairness.

   4. (4)

      In conducting its assessment, the third defendant failed to consider and/or apply cl 1.41.

   5. (5)

      As earlier mentioned, submissions directed to inconsistencies across a number of categories such as self-care and personal hygiene, social functions, concentration, persistence and pace and adaption, the plaintiff ultimately focused attention upon the category addressed in Assessor Jager’s and the third defendant’s assessment of “Concentration, Persistence and Pace”.

   6. (6)

      The third defendant found a class 3 impairment for this category and found there was consistency between the history of current psychiatric symptoms, presentation at assessment interview and findings on examination.

   7. (7)

      The finding as to “consistency” did not meet the third defendant objectives under cl 1.41 or the requirements of procedural fairness.

   8. (8)

      The history given to the third defendant by the first defendant and the third defendant’s findings, were inconsistent with the information obtained through the medical records, particularly the report of Assessor Jager, which has been obtained 8 months earlier with respect to concentration, persistence and pace.

   9. (9)

      There were further inconsistencies between the information obtained by the third defendant and observed, and the information obtained through medical records. The third defendant had before it the reports of Drs Snowdon and Jones where there were, again, inconsistencies with the findings of the third defendant. The third defendant did not put those inconsistencies to the first defendant.

   10. (10)

       There were inconsistencies between the third defendant’s findings and the information obtained through medical records which were not put to the first defendant.

   11. (11)

       In failing to apply cl 1.41, the third defendant failed to afford procedural fairness to the parties.

The First Defendant’s Submissions

1. [87]

   There were four primary contentions advanced by the first defendant in reply, as follows:

   1. (1)

      There was no evidence of the claimed failures to alert the first defendant to inconsistency.

   2. (2)

      There were no relevant inconsistencies.

   3. (3)

      The Guidelines were not directive and a failure to comply with them did not result in the invalidity of the third defendant’s decision.

   4. (4)

      In the alternative, the third defendant did not fail to afford procedural fairness by not bringing its findings of inconsistency to the first defendant’s attention or giving him a chance to respond.

2. [88]

   As to the first contention, the first defendant submitted that there was no evidence to support the first ground because there was no evidence of what was, and what was not, brought to the first defendant’s attention during the third defendant’s examination of him. There was no oral transcript of the examination or any evidence from anyone who was present.

3. [89]

   As to the second contention, the first defendant made, in summary, the following submissions:

   1. (1)

      Clause 1.41 is not directed to inconsistencies concerning the first defendant’s ability to concentrate between his presentation and his self-reporting.

   2. (2)

      It is doubtful that a divergence between a claimant’s assessment of his or her ability to concentrate, or a claimant’s account of difficulties concentrating in the past, and a third defendant’s assessment of that person’s ability to concentrate in an interview, is an inconsistency at all. First, the two relate to different time periods. Secondly, the expert body is expressing an opinion about a medical matter (whether the claimant suffers from concentration deficit from a psychiatric point of view) whereas the claimant is reporting his or her symptoms.

   3. (3)

      Further, the first defendant’s estimate of his own ability to concentrate is not “information obtained through medical records and/or observations of non-clinical activities” which could give rise to an inconsistency with the third defendant’s “clinical findings” within clause 1.41.

   4. (4)

      It is information given by the first defendant to the third defendant in an interview.

   5. (5)

      The third defendant’s comment that the first defendant’s estimate of his own concentration was more pessimistic than his real deficit is consistent with the medical records, a matter which is the subject of cl 1.41. Assessor Jager made the same comment, using the same language.

   6. (6)

      There are no inconsistencies between the third defendant’s findings and the history given to the third defendant and the medical records, such as Assessor Jager’s report, which were not put to the first defendant. Assessor Jager’s report relates to the first defendant’s condition as at 14 March 2018 (the assessment date) and the third defendant’s report relates to his condition 8 months later. The third defendant’s findings reflect what the first defendant told the third defendant.

   7. (7)

      The plaintiff appears to construe cl 1.41 as requiring every factual difference between an assessors finding and a medical record to be put to a claimant for comment, irrespective of its significance. That cannot be correct. It is not a sensible or workable construction, nor one consistent with the status of the Guidelines.

4. [90]

   As to the third contention, the first defendant submitted that, if the Court found that third defendant did not fully comply with cl 1.41 of the Guidelines, this would not result in the invalidity of the third defendant’s decision.

5. [91]

   The Act does not confer upon the SIRA the power to make delegated legislation but only confers the power to issue guidelines (see s 44(1) of the Act and NRMA Insurance Ltd v Motor Accidents Authority NSW (2004) 61 NSWLR 264; [2004] NSWSC 56 at [226] (per Dunford J)).

6. [92]

   It was submitted that, in Ali, the Court of Appeal found, albeit in a different statutory context, that the legal effect of guidelines depended upon the authority conferred by the empowering statute. Leeming JA rejected an insurer’s submission that guidelines made under the Act were “delegate legislation” making the following observation:

   1. (1)

      subsection 44(7) of the Act makes plain that guidelines are not statutory rules, by providing that ss 40 and 41 of the Interpretation Act 1987 (NSW) apply, as if the guidelines were statutory rules (at [83]);

   2. (2)

      permanent impairment guidelines are “treated as” disallowable instruments under s 45 of the Act (that is, they are not disallowable instruments) (at [84]);

   3. (3)

      none of the provisions in ss 44 and 45 of the Act “converts a guideline into delegated legislation which binds the parties or an assessor of its own force” (at [85]);

   4. (4)

      section 65(1) of the Act provides that medical assessments are “subject to” “relevant provisions of” the Guidelines. The relevant provisions are those “relating to” certain procedures – this does not give the guidelines the force of delegated legislation (at [87]); and

   5. (5)

      section 133(2) is expressed more strongly than s 65(1), but it is plain from each of these that the guidelines do not bind of their own force (at [89]).

7. [93]

   The provisions of s 133 of the Act, requiring the assessment of the degree of permanent impairment “in accordance with” the Guidelines, did not require “slavish adherence to them”. It does not require that every single factual discrepancy be put to a claimant, irrespective of its significance.

8. [94]

   An assessment may be in conformity with the Guidelines if it broadly adheres to them and if an assessor or review panel is guided by them (as the third defendant plainly was in the first defendant’s case).

9. [95]

   A failure to comply with the guidelines does not, of itself, render a decision invalid. It could not be said (and has not been said) that a purpose of the Act is that an act done in breach of any clause of the Guidelines should be invalid: see Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28 (“Project Blue Sky”) at [93].

10. [96]

    Reference was made to Dominice at [8], where Basten JA observed (with respect to an earlier version of the Guidelines) as follows:

11. [97]

    Here, the third defendant did not interpret the Guidelines as requiring it to put all alleged inconsistencies to the first defendant. This does not affect the validity of the third defendant’s decision, especially in circumstances where this was not procedurally unfair.

12. [98]

    The failure to put alleged inconsistencies to the first defendant would not “realistically have resulted in a different decision”: Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421; [2019] HCA 3 (“SZMTA”) at [45] and Hossain v Minister for Immigration and Border Protection (2018) 264 CLR 123; [2018] HCA 34 (“Hossain”) at [30].

13. [99]

    Lastly, even though the third defendant found that the first defendant’s estimate of his concentration was more pessimistic than the real deficit there was very little he could have said in response which, realistically, would have changed the third defendant’s opinion.

14. [100]

    Adjusted for the short forms in this judgment, the first defendant’s written submissions, with respect to the fourth contention, were as follows:

Consideration: Ground 1

1. [101]

   Upon the successful application to refer the medical assessment by Assessor Jager to the third defendant as a review panel of assessors for review pursuant to s 62(1) and (3), the third defendant was required to give a Certificate as to the matters referred for assessment and set out reasons for any finding by the assessors as to a matter certified in the certificate (see s 61(1) and (9) of the Act).

2. [102]

   Pursuant to s 44(1)(c), the Guidelines may address the assessment of the degree of permanent impairment or an injury period as a result of an injury caused by a motor accident.

3. [103]

   Section 65(1) provides that medical assessments made by the third defendant are “subject to” the Guidelines. Section 133(2)(a) provides that the assessment of permanent impairment is to be made “in accordance with” the Guidelines.

4. [104]

   The focus of the plaintiff’s attention in this matter was cl 1.41 of the Guidelines (the successor to cl 1.43 of the former Guidelines).

5. [105]

   I have earlier extracted passages from the judgment of Basten JA in Boyce. His Honour was dealing with the former Guidelines and, in particular, the distinction in those Guidelines between emboldened and unbolded text. Nonetheless, even with the unbolded text, his Honour found (at [18]) that it would be inconsistent with the combination of s 133(2) and the mandatory terms included in some unbolded texts are expressed to “suggest that the assessor can ignore what is, in effect, the bulk of the Guidelines [being a reference to unbolded type]”. His Honour illustrated why the former unbolded cl 1.24 was “mandatory” in its terms (see Project Blue Sky at [38] and [93], as to the concept of a mandatory term,). That conclusion may be reached with even greater force in the case of cl 1.41 having regard to the use of the word “must”. Further, having regard to the submissions of the plaintiff that I have earlier recorded and accept with respect to the former Guidelines (see [49]-[51]).

6. [106]

   The first defendant placed reliance upon Ali (at [75]-[93]) to contend that the Guidelines were not delegated legislation. This is certainly the effect of the judgment of Leeming JA in Ali, with respect to the former Guidelines. However, the judgment in Ali does not avail the first defendant, if it be advanced to support a proposition that the Guidelines were “mere guidelines” which did not require adherence (“slavish” or otherwise), even where the clause of the Guidelines is significant in its content, as is cl 1.41.

7. [107]

   It may be recalled that Basten JA specifically considered Ali in the passages of Boyce referred to above (see footnote 14). In Ali, Leeming JA considered the passages which were unbolded and hence, “less than a directive” (see at [96]) but those observations were referring to the structure of the former Guidelines (his Honour distinguished the unbolded portions of the former Guidelines from those of a more directive nature (see at [98])). Even then, his Honour stated that his judgment should not be taken as stating that failure to adhere to a guideline could never give rise to “judicial review” (see at [97]). Thus, his Honour observed (at [99]):

8. [108]

   Returning to Boyce, consideration was given to whether a decision by the Review Panel not to conduct an interview and direct examination pursuant to cl 1.20(ii) of the former Guidelines (the second stage in the assessment of permanent impairment) (see [20] and [50]). It was found that that step was a material (perhaps critical) step in the review process, “given the nature of the criteria to be applied and cl 1.20(ii) of the [Guidelines]” (see also Allianz Australia Insurance Ltd v Rutland (2015) 73 MVR 211; [2015] NSWCA 328 (“Rutland”) at [10]).

9. [109]

   In the result, Basten JA found that, given the criteria required to be applied, the failure to address that issue “involved a constructive failure to carry out their statutory function of conducting a new assessment”.

10. [110]

    It is true that in Dominice (at [8]) (as earlier extracted in this judgment), his Honour observed, with respect to an appeal from a refusal by the proper officer to refer an application for review under s 63(3) of the Act, the Guidelines were formulated in broad language and were “directed to those responsible for undertaking medical assessments”. Further, his Honour opined that the operation of the Guidelines was predominately a matter for the proper officer.

11. [111]

    However, as the plaintiff submitted, the nature of the determination undertaken by the proper officer under s 63(3) (where the test is whether or not the proper officer is “satisfied”) was quite different in its legal effect than determined by a Review Panel which is to issue a certificate as to a medical assessment with respect to a medical dispute under the Act (see s 61(1) and (2)) where its assessment may lead to a revocation of a certificate by a single medical assessor and the issue of a new certificate as to the medical dispute (see s 63(4)).

12. [112]

    Further, Basten JA drew a distinction between circumstances where judicial review was available with respect to a decision of a proper officer. Thus, whilst a misunderstanding as to the operation of a claim of the individual may not establish a finding of “unreasonableness”, it may constitute an error of law (whether it would invalidate the operation was not explored by the parties in this matter – see at [8]). Further, reference may be had to the distinction drawn in Dominice at [7] between a refusal by a proper officer to grant a review on the basis of a misunderstanding with the scope of the powers and a failure to refuse a referral as follows:

13. [113]

    In any event, the first defendant accepted that the third defendant would have been required to “broadly adhere” to the Guidelines. There is no indication that there was any adherence to cl 1.41, let alone broad adherence to the Guidelines, as I will find. I accept that plaintiff’s submissions that it did not do so in this case.

14. [114]

    In my view, cl 1.41, as identified by Simpson JA in Dominice, has a significant purpose, namely, guarding against the unfairness of conduct (relating to inconsistencies in medical records or histories), the nature of which, when considered in the light of the terms of cl 1.41 (in the context of statutory provisions governing the making of guidelines) required adherence by the third defendant.

15. [115]

    A failure to adhere to the Guidelines, in this regard, may result in an error of law or a constructive failure to exercise judgment such as to invalidate a decision made and thereby making it amenable to judicial review.

16. [116]

    The question which then arises is – was there a material failure by the third defendant to adhere to the terms of cl 1.41 of the Guidelines in this matter?

17. [117]

    Without repeating the earlier summary of the first defendant’s submissions, the following key elements may be identified at this juncture:

    1. (1)

       There were no inconsistencies.

    2. (2)

       There is no requirement in cl 1.41 for the third defendant to bring any information to the attention of the insurer.

    3. (3)

       Nor was the third defendant required to bring inconsistencies to an injured person’s attention when the medical assessor was not making an unfavourable decision with respect to the injured person.

    4. (4)

       The rules of procedural fairness do not require the assessor to do so in those circumstances.

    5. (5)

       Whilst Dominice (per Simpson JA and Emmett AJA) specify that the requirement to put inconsistencies to an injury claim was necessary to ensure accuracy, that judgment may be distinguished because the judgment was restricted to circumstances where the conclusions of the medical assessor were unsupported by medical records or history and that medical assessor had been at a loss to explain certain matters.

    6. (6)

       The third defendant’s conclusions were not unsupported by medical records or history. Anything the first defendant may have said in response to the third defendant, vis-à-vis inconsistencies, could not have assisted the third defendant.

    7. (7)

       In any event, any error was not such as would entitled the plaintiff to relief in judicial review proceedings. The error was not of such materiality to avow to jurisdictional error.

18. [118]

    There are two classes of inconsistency relied upon by the plaintiff which, in my view, are established by the evidence before the Court, as set out above:

    1. (1)

       Inconsistencies in the third defendant’s own assessment (“the first class of inconsistency”). Thus, the third defendant identified under the heading “Concentration, Persistence and Pace” (at [73] of this judgment) that the first defendant reported that he “could not concentrate to read or watch a complete action movie” and had “lost interest in completing domestic tasks” and referred to a “moderate impairment” but opined “there were no specific concentration benefits obvious during the assessment interview”. Those inconsistencies were exemplified by earlier references in the assessment between the first defendant’s self-report and his presentation. For example, the claimant stated he lost “concentration, I get upset, I don’t read now, I valued comic movies but I don’t watch them all the way through” and the third defendant observing that the first defendant did not exhibit “a short-term or long term memory deficit” and “his concentration was not impaired in this clinical interview with no problems in organising and answering questions”.

    2. (2)

       Inconsistencies between the assessments of the third defendant and medical records or history found in the assessment of Assessor Jager and the reports of Drs Snowdon and Jones (“the second class of inconsistency”).

19. [119]

    In the latter respect, the plaintiff proposed the following Table comprising Assessor Jager and the third defendant’s assessments across four categories (although the focus here is the category “Concentration, Persistence and Pace”).

20. [120]

    I turn to two further submissions of the first defendant as to inconsistencies, both of which I reject.

21. [121]

    First, the first defendant contended that because there is no evidence of the reasons of what was brought to the claimant’s attention during the examination, the plaintiff’s ground of review should be dismissed. I do not accept that submission for two reasons:

    1. (1)

       The review panel was required to give reasons for its decision, and the High Court has made it plain that the reasons must be sufficient to enable a court to see whether or not the decision involves an error of law: Wingfoot Australia Partners Pty Ltd v Kocak (2013) 252 CLR 480; [2013] HCA 43 (“Wingfoot”) at [55] (I will refer to this issue under Ground 2). Given that cl 1.41 is designed to ensure both procedural fairness and accuracy of assessment (these concepts will be discussed further below), it is crucial to the decision-making for the clause to be applied, and equally for reasons to be provided regarding its application.

    2. (2)

       The review panel does address the issue of consistency, stating:

22. [122]

    Secondly, the first defendant submitted that the inconsistencies relied upon by the plaintiff were not contemplated by cl 1.41. The classes of inconsistency relied upon by the plaintiff concern, in the first instance, an inconsistency between self-reporting by the first defendant and direct observations by the third defendant and the third defendant’s own assessments (as between “Moderate Impairment” based on self-reports and “No Impairment” in the sense of no specified concentration defects) and, in the second instance, between the third defendant’s assessment and medical records.

23. [123]

    The first defendant contended that the first class of inconsistency was not contemplated by cl 1.41. It would appear that this submission directed attention to the opening words of cl 1.41 which seem to draw attention to a comparison between a medical assessor’s clinical findings and, inter alia, information obtained through medical records.

24. [124]

    However, it is difficult to envisage how such a comparison would not include inconsistencies within clinical findings per se, at least for the purposes of identifying inconsistencies including comparisons made between clinical findings and medical records. This seems to be contemplated in the example given in cl 1.41 as well as the inconsistencies found as relevant for the purposes of the counterpart to cl 1.41 in the former Guidelines (cl 1.43) by Simpson JA in Dominice (at [61]), namely, inconsistencies noted by Dr Ashworth in what the plaintiff described to him.

25. [125]

    Furthermore, I do not accept the submission by the first defendant that the first class of inconsistency may not be an “inconsistency at all” because of the different time periods examined and the expert opinion concerned a medical assessment in contrast to all reporting. These matters may or may not explain an inconsistency and, thus, do not negate the fact of the inconsistency reported on the face of the third defendant’s assessment.

26. [126]

    The same conclusion may be reached with respect to the first defendant’s submission that there was an absence of real inconsistencies with Assessor Jager’s report (see [89] of this judgment).

27. [127]

    The first defendant submitted that the third defendant’s comment that the first defendant’s estimate of his own concentration was more pessimistic than his real deficit was consistent with the medical records, a matter which is the subject of cl 1.41. Assessor Jager made the same comment, it was submitted, using the same language.

28. [128]

    However, I accept, in this regard, the submission advanced by counsel for the plaintiff that the issue was not that the third defendant made the same observation as Assessor Jager, regarding the difference between the first defendant’s self-reporting and the actual extent of his impairment, but rather that, after noting this, the third defendant then relied on the self-reporting of the first defendant in order to base its findings, without first addressing the significant inconsistency, that is, that the claimant does not actually present with the impairment complained of.

29. [129]

    It follows, in my view, that these were inconsistencies detected by the third defendant that the third defendant was required to draw to the first defendant’s attention in order to provide an opportunity for explanation. That conclusion is reached notwithstanding further contentions advanced by the first defendant which I address and reject below.

30. [130]

    It was accepted by the first defendant that Simpson JA in Dominice commented (at [72]) that one reason for the requirement to put inconsistencies to an injured claimant was to ensure “accuracy” and this was for the benefit of both insurers and claimants and that, whilst in its ordinary course it would be expected that this requirement (cl 1.41) would be beneficial to claimants “…here the purpose of the claim was not so limited” (at [60]). However, the first defendant sought to distinguish Dominice from the circumstances of the present case. In particular, it was submitted that the judgments of Simpson JA and Emmett AJA in Dominice may be distinguished insofar as it was found that the requirements of cl 1.43 of the former Guidelines were for the benefit of claimants and insurers.

31. [131]

    These contentions were predicated upon an argument that the medical assessor in Dominice had found unexplained inconsistencies in his own assessment such that conclusion made in favour of insurers by Simpson JA were predicated upon the existence of conclusions unsupported by medical evidence.

32. [132]

    I reject this submission. The key passage from the judgment of Simpson JA was here earlier set out in this judgment at [51]. In determining at [61] of Domince that cl 1.43 of the former Guidelines also acted as a guard against conclusions that may be unfairly drawn in favour of a complainant which are not supported by medical records or history, her Honour referred to the need for the medical assessor to investigate a discrepancy between Ms Dominice’s presentation to Dr Kenna 10 months earlier and her presentation to him, as well as inconsistencies noted in her presentation to him. Her Honour found that it was the drawing of a conclusion in the face of inconsistent medical records (including the reports of Dr Kenna) and “without explanation or exploration”, that “caused the proper officer to have requisite satisfaction that there was reasonable cause to suspect that Dr Ashwell’s assessment was incorrect in a material respect”.

33. [133]

    An issue in Dominice was whether the complainant had suffered an injury to her shoulders attributable to a motor vehicle accident. Dr Kenna had found that Ms Dominice reported “mild to moderate pain toward the right shoulder” (at [23]) but there was “referral to both shoulders secondary from the cervical spine” and “no intrinsic shoulder pathology” (at [24]).

34. [134]

    Dr Kenna assessed Total Whole Person Impairment as “0 percent”; and Ms Dominice applied for an assessment of her injuries. Dr Ashwell was assigned for this purpose and had the reports of Dr Kenna. His assessment was that shoulder movements were “considerably more restricted than results produced by Dr Kenna” (see at [30]-[31]). He assessed whole person impairment at 18%.

35. [135]

    In an application to refer Dr Ashwell’s assessment to a review panel, the insurer relied upon inconsistencies for the purposes of cl 1.43 of the former Guidelines, particularly as to shoulder movement. In making a determination on the application, the proper officer referred to inconsistency with Dr Kenna’s reports and a failure to bring these to the claimant’s attention (see at [38]).

36. [136]

    The primary judge found that cl 1.43 was for the benefit of both parties. Ms Dominice’s appeal in that respect failed as reflected in the judgment of Simpson JA (at [61]) and the judgment of Emmett AJA at [93].

37. [137]

    There is no difference, of substance, between those circumstances and the present case. The inconsistencies between the findings of the third defendant and Assessor Jager and Dr Jones are of the same character as those identified by Simpson JA in Dominice with respect to Drs Kenna and Ashwell which triggered the need for the inconsistencies being put to the first defendant in Dominice. There is no warrant to distinguish Dominice from the present case, or reach a different conclusion as to the beneficial operation of, by extrapolation, cl 1.41 for insurers (vis-à-vis a requirement for the reconciliation of inconsistencies and the meeting of requirements for accuracy).

38. [138]

    Thus, I accept the plaintiff’s submission that the first defendant’s contention that cl 1.41 is primarily intended to benefit the claimant or injured person, or that the only beneficiary of the procedural fairness requirement is the claimant, should be rejected. A similar argument was made by a claimant and rejected by three Justices of the Court of Appeal in Dominice (at [61] and [72]).

39. [139]

    As to procedural fairness, three further observations may be made.

    1. (1)

       The obligation to afford procedural fairness exists at general law. In Frost, the Court of Appeal said (per Leeming JA, with Beazley P and Basten JA agreeing) at [31]:

    2. (2)

       The Court further said at [41]:

    3. (3)

       The content of the duty to provide procedural fairness is further clarified by cl 1.41 of the Guidelines as well as providing for accuracy: Dominice at [72].

40. [140]

    It follows that a failure to materially adhere to the provisions of cl 1.41 is to deny the insurer of the benefit of procedural fairness (as well as engaging in processes to ensure the accuracy of the assessments made).

41. [141]

    In the present case, and to borrow the language of the Court in Dominice at [61], it was the drawing of the conclusion (that impairment existed as self-reported by the claimant), in the face of inconsistent medical records and presentation, and without exploration or explanation, that caused the review panel to fall into error here.

42. [142]

    As Simpson JA stated in Dominice at [70]:

43. [143]

    I note that the first defendant also submitted that this case also differed from Dominice in that, here, anything the first defendant said in response to the review panel pointing out inconsistencies could not have assisted the insurer. The first defendant also gave the following example: if the panel had pointed out to the first defendant that his own assessment of his concentration problems was exaggerated, and he had agreed with the review panel that he could concentrate well at the interview, this could only have led to it making the finding it did make (that his estimate of his concentration was more pessimistic than his real deficit). If, on the other hand, he persuaded the panel that it had overestimated his ability to concentrate, the result could only have been detrimental to the insurer’s interests (in that it could have assessed him as having a “severe” concentration deficit instead of a “moderate” one).

44. [144]

    However, I accept the submissions of the plaintiff that the Court should not engage in the exercise of speculating whether the outcome would or would not have been the same, had the denial of procedural fairness not occurred: Partridge v IAG Limited t/as NRMA Insurance (2019) MVR 36; [2019] NSWSC 127 at [43]; and Boyce at [74] and [135].

45. [145]

    A further consideration raised by the first defendant was cl 1.18 of the Guidelines. The plaintiff accepted that this provision required that all impairments must be assessed as the claimant presents at the time of the assessment. However, the plaintiff correctly submitted that there is no real tension between this provision and cl 1.41. The evaluation being made at the time of assessment may, in my view, sit conformably with the requirements of cl 1.41 which acts as a bulwark against inconsistent and inaccurate findings in the interest of procedural fairness.

46. [146]

    Finally, the first defendant submitted that any “error” in this case would not have been of sufficient materiality to amount to jurisdictional error. I reject that submission. (I shall deal with the concepts of jurisdictional error further in the judgment below).

47. [147]

    The defendant abandoned part of its further submissions that even, if the panel had ruled the first defendant’s concentration as “1” that would not have affected its decision that he had a greater than 10% whole person impairment. However, that is not the end of the considerations as to materiality. Clauses 1.225-1.228 of the Guidelines set out how whole person impairment is calculated. If “Concentration, Persistence and Pace” had been assessed at lower than Class 3 impairment, the “median” class score would have been 2 instead of 3. By reference to Table 17 of the Guidelines, extracted earlier in this judgment, the total whole person impairment could not thereby possibly have exceeded 10%. The inconsistencies were, therefore, material.

48. [148]

    It follows that there was a significant material error by the first defendant in failing to adhere to the requirements of cl 1.41 of the Guidelines.

49. [149]

    In my view, and subject to the further consideration of access by the plaintiff to prerogative relief, ground 1 of the appeal has been made out by the plaintiff.

Plaintiff’s Submissions

1. [150]

   In summary, the plaintiff made the following submissions in support of this ground:

   1. (1)

      In its assessment decision, the third defendant was required, by general law, to provide adequate lawful reasons for its determination and, pursuant to s 61(9) of the Act and cll 13.2 and 16.24 of the Guidelines, to set out lawful reasons for its determination.

   2. (2)

      The failure of the third defendant to state its actual path of reasoning and to do so in a way that permitted identification by the court (and the parties) of any legal error is in and of itself a vitiating error of law on the face of the record which is amenable to an order in the nature of certiorari.

First Defendant’s Submissions

1. [151]

   In summary, the first defendant’s submissions as to this ground were as follows:

   1. (1)

      The third defendant’s reasons were sufficient to expose its path of reasoning to its conclusion that first defendant’s degree of whole person impairment was greater than 10%.

   2. (2)

      The plaintiff criticised the third defendant’s reasoning for failing to explain why:

   3. (3)

      The critique by the plaintiff of the third defendant’s reasoning was focused upon the “merits” of the third defendant’s decision, namely, the consistency of the reasoning, conclusions as to significant impairment and concentration and that injuries had stabilised. Legality must be the only issue in these proceedings and not the merits of the particular decision of the third defendant.

   4. (4)

      The third defendant’s reasons must of course be read as a whole, fairly and with a “beneficial construction”: Minister for Immigration and Ethnic Affairs v Liang (1996) 185 CLR 259; [1996] HCA 6 (“Liang”) at 271.9 to 272.2. The reasons are not to be construed minutely and finely with an eye keenly attuned to the perception of error: Liang at 272.2.

   5. (5)

      The third defendant here was not required to explain every comment made in the reasons, including why it considered that “there was consistency between the history of current psychiatric symptoms, presentation at the assessment interview and findings on examination”. Its “path of reasoning” to its conclusion that the first defendant’s whole person impairment was greater than 10% was adequately exposed by the reasons as a whole. The third defendant’s comment as to consistency is explained by its earlier remarks about the history of the first defendant’s psychiatric symptoms, his presentation at the assessment interview and the third defendant’s findings on examination. The three are, broadly, consistent.

   6. (6)

      The third defendant did not engage in “internally inconsistent reasoning” when considering the first defendant’s ability to concentrate and did not conclude that the first defendant had a “significant impairment of concentration”.

   7. (7)

      The third defendant concluded that the first defendant has a “moderate impairment” of “concentration, persistence and pace”. This conclusion is based not only upon the panel’s observation of the first defendant in an interview, but also upon the medical history and the first defendant’s report of his own symptoms. It relied upon his “withdrawal from organising the family finances, inability to concentrate to read or watch a complete action movie and a loss of interest in completing domestic tasks”. It also relied on its observation that the first defendant’s “speech was discursive as he organised his answers” in the interview. This might go to “pace” (an aspect of the category which the plaintiff has ignored).

   8. (8)

      It was submitted that the plaintiff had contended that the third defendant failed to explain why it concluded that the first defendant’s injuries had stabilised “given the time since the accident and the continued stability of symptoms” when (the plaintiff says) in fact the third defendant’s apparent conclusion was that the claimant had deteriorated quite significantly since the assessment with Assessor Jager less than 8 months earlier.

   9. (9)

      However, the third defendant did not conclude that the first defendant had “deteriorated quite significantly” since Assessor Jager’s assessment as the plaintiff suggests. The panel’s conclusions about the first defendant’s condition (in December 2018) were more positive than those of Dr Snowdon (on 13 July 2017), which were reached 8 months before Assessor Jager’s assessment (on 14 March 2018), and only slightly less positive than those of Assessor Jager.

   10. (10)

       The plaintiff also complains that the review panel failed to explain why it concluded that the first defendant’s injuries had stabilised “given the time since the accident and the continued stability of symptoms” when (the plaintiff says) in fact the review panel’s apparent conclusion was that the claimant had deteriorated quite significantly since the assessment with Assessor Jager less than 8 months earlier.

   11. (11)

       The third defendant did not conclude that the first defendant had “deteriorated quite significantly” since Assessor Jager’s assessment as the plaintiff suggested. The third defendant’s conclusions about the first defendant’s condition (in December 2018) were more positive than those of Dr Snowdon (on 13 July 2017), which were reached eight months before the Jager assessment (on 14 March 2018), and only slightly less positive than those of Assessor Jager. For “concentration, persistence and pace” and “adaptation”, the third defendant found that he had a “moderate impairment” (Class 3); Assessor Jager assessed the impairment as mild (Class 2); and Dr Snowdon assessed those categories as moderate (Class 3) and totally impaired (Class 5), respectively. The third defendant, Assessor Jager and Dr Snowdon all gave the first defendant the same scores for social and recreational activities and travel.

   12. (12)

       It is not correct to suggest that the third defendant differed from Assessor Jager solely because it considered that there had been a deterioration in the first defendant’s condition and not primarily because it evaluated the medical evidence differently.

   13. (13)

       The differences in the assessments of the third defendant, Assessor Jager and Dr Snowdon reveal divergences of judgment, as well as differences in the material that was before each. As indicated in cl 1.40 of the Guidelines, an assessor (or review panel) is to “use the entire gamut of clinical skill and judgement” in making an assessment. The third defendant’s view that the first defendant’s condition had stabilised is consistent with the history given in its reasons and, broadly, with the material in the other reports. It is the expression of a professional judgment (that is, a decision as to the merits).

   14. (14)

       When considering the material as a whole, the inference that the panel concluded that any deterioration in the first defendant was “significant” is not reasonably available. The claimed inconsistency in the reasoning is illusory.

Consideration: Ground 2

1. [152]

   In Wingfoot, the High Court determined, in a similar statutory regime concerning a medical panel of assessors in a Victorian workers compensation context, the duty to give reasons as follows (at [55]):

2. [153]

   The plaintiff accepted that the category “concentration, persistence and pace” included both “persistence and pace”. However, the review panel’s findings plainly included a number of factors that were related to “concentration” and it is these factors that have not been properly explained, for the reasons set out in the plaintiff’s summary submissions.

3. [154]

   In Sadsad v NRMA Insurance Ltd (2014) 67 MVR 601, the Court considered the adequacy of reasons of a medical assessor. After applying Wingfoot, and citing Campbelltown City Council v Vegan (2006) 67 NSWLR 372; [2006] NSWCA 284, Hamill J stated (at [47]-[48]):

4. [155]

   In my view, the third defendant has failed to state its actual path of reasoning in such a way as to permit the identification by the Court of any legal error. My reasons for this conclusion are as follows:

   1. (1)

      In making its decision, the third defendant was bound to set out its actual path of reasoning and to do so in terms sufficiently clear so as to enable a determination as to whether or not it fell into legal error pursuant to s 61(9) of the Act. It failed to do this.

   2. (2)

      The third defendant failed to explain why it concluded, on page 11, that “[t]here was consistency between the history of current psychiatric symptoms, presentation at the assessment interview and findings on examination” in light of the apparent inconsistencies as discussed in ground 1.

   3. (3)

      There was internally inconsistent reasoning in that the third defendant noted in its reasons that the first defendant did not demonstrate concentration difficulties during examination but then found that the first defendant had significant impairment of concentration. This was an unexplained step in the reasoning process. This has been held to constitute error of law: IAG Limited v Sleiman (2017) 82 MVR 1; [2017] NSWSC 1346 at [29] and Zurich Australia Insurance Limited v Drca (2018) 87 MVR 100; [2018] NSWSC 1945 at [65]).

   4. (4)

      The third defendant failed to explain why it found that the first defendant had a significant impairment of concentration in light of the inconsistencies referred to above, and in light of the third defendant’s own findings on examination.

   5. (5)

      The third defendant failed to explain why it concluded that the first defendant’s injuries had stabilised “given the time since the accident and the continued stability of symptoms” when, it is apparent, the third defendant’s conclusion was that the first defendant had deteriorated to a significant extent since the assessment with Assessor Jager less than 8 months earlier. This is wholly unexplained.

   6. (6)

      The third defendant had before it two other assessments by psychiatrists (Drs Snowdon and Jones) which both had different assessments of impairment to the assessment of Assessor Jager or of the third defendant. I agree with the submissions of the plaintiff that this makes the third defendant’s statement regarding “the continued stability of symptoms” somewhat confounding and, more significantly, lacking in reasons.

5. [156]

   I agree with the plaintiff’s reply to the first defendant’s submissions, summarised above at [151(11)] of this judgment. The matters raised by the first defendant illustrate a significant problem with the review panel’s lack of reasoning regarding “the continued stability of symptoms”. There were three other reports from psychiatrists before the third defendant, all of which had different findings and conclusions regarding impairment than the third defendant. The third defendant’s statement as to “continued stability”, in light of these reports, is simply unexplained.

6. [157]

   The differences between the third defendant’s assessment, and the earlier assessments, may have been due to “divergences of judgment” as the first defendant contended. However, this is just one possible explanation. The third defendant was required to explain the divergence

7. [158]

   The plaintiff has made good Ground 2.

Plaintiff’s Submissions

1. [159]

   The plaintiff made the following submissions in relation to this ground as follows:

The First Defendant’s Submissions

1. [160]

   Making adjustments for the short forms used in this judgment, the first defendant made the following submissions in relation to ground 3:

Consideration

1. [161]

   This ground of review is supported by the High Court in Minister for Immigration v Li (2013) 249 CLR 332; [2013] HCA 18 and has been applied by this Court in relation to the very type of error complained of here: IAG Limited v Sleiman (2017) 82 MVR 1; [2017] NSWSC 1346.

2. [162]

   As the High Court said in Hossain (at [25]), “the unavoidable distinction between jurisdictional errors and non-jurisdictional errors is ultimately ‘a distinction between errors that are authorised and errors that are not; between acts that are unauthorised by law and acts that are authorised’". Further, jurisdictional error and a decision wanting in authority are one in the same (see Hossain at [26], extracted in full below).

3. [163]

   I accept the submissions of the first defendant that the ground of unreasonableness does not involve the Court reviewing the merits of a decision “under the guise of the decision’s unreasonableness”. However, I do not consider that the challenges brought by the plaintiff constitute a merits review of the first defendant’s submissions.

4. [164]

   Further, the plaintiff’s submission that it has demonstrated that the findings of the third defendant were not within the scope of the authority conferred upon it, in my view, have real substance.

5. [165]

   However, the Court should be slow to find a decision of the kind under review was legally unreasonable. In this case it is unnecessary to do so, having regard to the conclusions reached for grounds 1 and 2.

JURISDICTIONAL ERROR

1. [166]

   The first defendant contended that the alleged errors do not constitute a constructive failure to exercise jurisdiction or any other kind of jurisdictional error.

2. [167]

   The submissions of the first defendant in that respect may be briefly outlined as follows:

   1. (1)

      Jurisdictional error is a “failure to comply with one or more statutory preconditions or conditions to an extent which results in a decision which has been made in fact lacking characteristics necessary for it to be given force and effect by the statute pursuant to which the decision-maker purported to make it” (Hossain at [24]). It is an expression of the gravity of an error (Hossain at [25]). A decision made in breach of a condition to be observed in the course of a decision-making process, implied by statute, is not necessarily invalid. There is generally a threshold of materiality in the event of non-compliance (see Hossain at [29]; and SZMTA at [45]). For an error to be jurisdictional, there must be “a material breach of an express or implied condition of the valid exercise of a decision-making power conferred by” an Act (Wei v Minister for Immigration and Border Protection (2015) 257 CLR 22; [2015] HCA 51 at [23]; Hossain at [31]).

   2. (2)

      None of the alleged breaches (if established) were relevantly material.

3. [168]

   It may be reiterated, in that respect, that the first defendant did not press a submission that alleged errors did not appear on the face of the record.

Consideration: Jurisdictional Error

1. [169]

   For the plaintiff to establish its case and so to enliven the Court's power to issue remedies it must establish an error of law on the face of the record (the "record" is the written reasons – see, s 69(3) and (4) of the Supreme Court Act 1970 (NSW)). Errors of law on the face of the record need not be errors going to jurisdiction: see, Garcia v MAA (2009) 54 MVR 102; [2009] NSWSC 1056 at [21]-[24] and the discussion in Kirk v Industrial Court of New South Wales (2010) 239 CLR 531; [2010] HCA 1 at [78]-[90] and also [66]-[70].

2. [170]

   The first defendant properly did not pursue its submission that the errors that the plaintiff alleged here were, if established, not apparent on the face of the record.

3. [171]

   In any event, I note that In Pham v NRMA Insurance Ltd (2014) 66 MVR 152; [2014] NSWCA 22 at [27] it was held (per Leeming JA, with Tobias AJA agreeing) that both a claims assessor's certificate and reasons form part of the record, by reason of the statute requiring reasons to be given. The plaintiff correctly submitted that MAS Assessors' reasons form part of the record, for the same reason, in that the obligation to give reasons is in the Act: s 61(9).

4. [172]

   I have found error of law on the face of the record with regard to grounds 1 and 2.

5. [173]

   In those circumstances, it is strictly unnecessary to consider whether the errors which I have found are jurisdictional errors. However, I note that, as to the issue of jurisdictional error, the plaintiff has pleaded that the errors include a constructive failure to exercise jurisdiction. The Court of Appeal in Rodger v De Gelder (2015) 71 MVR 514 said (at [95] per Gleeson JA, with Macfarlan and Leeming JJA agreeing):

6. [174]

   Indeed, the Court of Appeal in Boyce per Basten JA at [9], [14]-[22], [41], [44], [49]-[51], [66] (Macfarlan JA agreeing) (see also [108] per Sackville AJA); Rutland at [10] (per McColl and Meagher JJA, with Macfarlan JA agreeing) has found that the Guidelines have statutory force and a failure to comply with the Guidelines can constitute a constructive failure to exercise jurisdiction.

7. [175]

   Here the errors alleged by the plaintiff heed to the exercise of power by the third defendant and, in particular, breach of conditions which the statute expressly or impliedly required to be observed. They represent a constructive failure to exercise jurisdiction.

8. [176]

   The third defendant was required by statute to give reasons: ss 63(6) and 61(9) of Act. A failure to do so also represents an error of law on the face of the record.

9. [177]

   The first defendant placed reliance upon Hossain. Particular reliance was placed upon [24] and [25] of that judgment. I extract [23]-[29] below:

10. [178]

    For the reasons I have discussed earlier, the “breaches” (the error found in Grounds 1 and 2) are relevantly material.

RELIEF

1. [179]

   The question is whether there is established relevant error of law on the face of the record that warrants quashing the decision, should that step be determined to be taken in the Court’s discretion. That is the nature of judicial review proceedings as distinct from an appeal or review on questions of law, fact or discretion.

2. [180]

   The first defendant submitted that, should the Court find that the third defendant made any error concerning the application of cl 1.41 of the Guidelines, it should decline to grant relief in its discretion. This is because cl 1.41 is primarily intended to benefit a claimant and ensure that the claimant is afforded procedural fairness. The first defendant contended that he had made no complaint about the third defendant’s application of that clause. Further, the first defendant submitted that the plaintiff should not be granted relief where any failure of compliance of the Guidelines did not directly affect it. The further amended summons, it was contended, should be dismissed.

3. [181]

   Having regard to the purpose of cl 1.41 of the Guidelines as discussed in Dominice, my findings as to the proper operation of the provision, the circumstances of this matter as discussed in this judgment and the materiality of the errors of law by the third defendant, I do not accept those submissions.

4. [182]

   An orders in the nature of certiorari should be made quashing the decision of the third defendant and an order should be made in the nature of mandamus remitting the matters the subject of the third defendant’s decision to the SIRA for reallocation to a Medical Assessors Panel for determination of the matter according to law.

5. [183]

   Both parties agreed that costs should follow the event. I shall make orders against the first defendant accordingly, noting my conclusions below as to the Suitors’ Fund.

SUITORS’ FUND APPLICATION

1. [184]

   Following the conclusion of proceedings, the first defendant filed submissions dated 5 August 2020 seeking the grant of a certificate under the Suitors’ Fund, in the event the plaintiff was successful on its appeal, pursuant to the Suitors’ Fund Act 1951 (NSW) (“the SF Act”). The first defendant sought the following order:

2. [185]

   The first defendant’s submissions were brief and are extracted in full below:

3. [186]

   I accept the submission of the first defendant that it was not unreasonable for the first defendant to have defended the judicial review proceeding brought by the plaintiff and that an indemnity certificate under the SF Act should be issued to ameliorate hardship.

ORDERS

1. [187]

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