Boyce v Allianz Australia Insurance Ltd

1. [1]

   BASTEN JA: On 8 June 2012 the appellant, Joanna Boyce, suffered an injury in a motor vehicle accident, when her vehicle was struck from the rear. She brought proceedings against the other driver in negligence; liability was admitted. The present litigation arises from an assessment undertaken by a medical assessor under the Motor Accidents Compensation Act 1999 (NSW).

2. [2]

   For the appellant to be able to obtain damages for non-economic loss it is necessary for her to obtain an assessment of whole person impairment greater than 10%. She had several disparate injuries, but the relevant one for present purposes was an injury to her bladder. To recover non-economic loss, an assessment of impairment based on that specific injury of 3% was required. The initial medical assessor, Dr Michael Rochford, urologist, assessed the impairment relating to the injury to her bladder at 10%. On an application for review by Allianz Australia Insurance Ltd (the defendant’s insurer, and the first respondent on the appeal), a proper officer of the State Insurance Regulatory Authority (the second respondent) concluded that there should be a review by a medical assessment review panel. That review resulted in a certificate recording an assessment of 2% impairment.

3. [3]

   Ms Boyce commenced proceedings in the Common Law Division seeking judicial review of the Review Panel’s certificate. The basis on which she did so was that the Review Panel failed to carry out an interview and clinical examination before reaching its assessment. On 20 June 2017, the primary judge (Fagan J) dismissed the summons on the basis that no reviewable error had been established. [1]

Grounds of appeal

1. [4]

   There were 17 grounds of appeal; one (“unreasonableness”) was not pressed and the remaining substantive grounds, bar one, all related to an allegation of procedural unfairness. The remaining ground alleged a constructive failure on the part of the Review Panel to exercise its statutory function. It is convenient to address these grounds together.

Failure to conduct interview and clinical examination

1. [5]

   The appellant’s case in support of an obligation for the Review Panel to conduct an interview and clinical examination relied upon a combination of three factors, namely (a) the statutory scheme for assessments; (b) various procedural guidelines and (c) her written request for an examination. The third element (the written request) depended on a factual matter which was not in dispute, namely that the request had gone astray and had not been provided to the Review Panel or the proper officer assisting it. It is convenient to start with the statutory scheme.

(a) statutory scheme

1. [6]

   The Review Panel’s certificate was issued on 31 August 2016. The following discussion of the statutory provisions (and the procedural guidelines) refers to the legislation (and documents) in force at that time.

2. [7]

   Pursuant to s 131 of the Motor Accidents Compensation Act, no damages could be awarded for non-economic loss unless the degree of permanent impairment was greater than 10%. In the event of a dispute as to a claimant’s satisfaction of that requirement, an assessment by a medical assessor was required. [2] Such a dispute, referred to as a “medical assessment matter”, was to be undertaken by a medical assessor appointed by the Motor Accidents Medical Assessment Service. [3]

3. [8]

   The process for review of a medical assessment was set out in s 63, which relevantly provided:

4. [9]

   Although it was not suggested that a review panel should not have regard to the assessment under review, it may be inferred that the “new” assessment must be based on clinical information current at the time of the panel’s assessment, an inference confirmed by cl 1.23 of the Permanent Impairment Guidelines. [5] Accordingly, the appellant argued, if an original assessment required a clinical examination of and interview with the claimant, so should the review panel assessment.

5. [10]

   The other salient statutory provisions are those providing for procedural steps to be undertaken in the course of medical assessments. First, there are sets of medical guidelines, the issue of which was provided for in s 44 in the following terms:

6. [11]

   Assessments of permanent impairment were made under Pt 3.4, which included s 58(1)(d). There was a complementary provision in s 65:

7. [12]

   Section 44(1) also provided for guidelines relating to the assessment of the degree of permanent impairment, as required by s 132(1). The following section relevantly provided:

8. [13]

   It is unclear whether the different expressions in s 65(1) (“subject to”) and in s 133(2) (“in accordance with”) have different legal consequences; [6] nothing terms on that point in this case.

(b) procedural guidelines

1. [14]

   The Medical Assessment Guidelines made under s 44(1)(d) of the Motor Accidents Compensation Act cover, amongst other things, the procedure for review of assessments under Pt 3.4 of the Act. Applications for review are addressed in the first instance to the proper officer, who is required to consider the application under s 63. Chapter 16 deals with reviews and provides for the procedure to be adopted by the proper officer in determining whether to refer the application to a panel under s 63(3). [7] The proper officer is responsible not only for a referral to a review panel, but also for convening a review panel and arranging for the appointment of a chairperson for the panel. [8] The proper officer is to advise the parties of the arrangements for the review within five days of convening the panel. [9] The proper officer shall act as secretary to the panel and provide administrative support. Further, the officer “shall arrange for copies to be sent to each member of the Review Panel” of all material before the original assessor, the original assessor’s certificates, the review application and reply and supporting material. [10] The review panel is to carry out an assessment, with specific functions being identified in cll 16.21-16.26. Relevantly, cl 16.21 provides:

2. [15]

   The obligation imposed under cl 16.21.1 to “consider afresh all aspects of the assessment under review” is consistent with the obligation imposed by s 63(3A). However, the obligation under cl 16.21.2 is not to examine the claimant, but to determine whether “re-examination” is required. The assumption underlying this provision is that the initial assessor will have examined the claimant. As with cl 16.21.3 in relation to “additional information”, there is an evaluative judgment to be made by the panel in regard to each matter. In substance, the issue in the present case is whether there are constraints on that judgment with respect to carrying out an examination of the claimant.

3. [16]

   The second set of relevant medical guidelines is that entitled “Guidelines for the Assessment of the Degree of Permanent Impairment”. These are issued pursuant to s 44(1)(c) of the Motor Accidents Compensation Act; s 133 requires that the assessment of permanent impairment “is to be made” in accordance with these Guidelines.

4. [17]

   The introduction to the Permanent Impairment Guidelines notes that they were “based on” the American Medical Association publication of 1995 (referred to as the “AMA 4 Guides”), but with a number of significant departures. Assessors are advised: [11]

5. [18]

   This last statement is ambiguous in two respects. First, in some legal contexts, provisions are described as “mandatory or directory.” [13] However, in the Guidelines it is clear that a “directive” is mandatory. There is then a question as to the use of the term “definitive”. If the Guidelines are “definitive” only with respect to matters in bold type, there is potential confusion as to the meaning of s 133(2) which requires that the assessment “is to be made in accordance with” the Guidelines. However, the purpose of cl 1.2 and 1.3 of the Guidelines is to fix the relationship of the Guidelines with the AMA 4 Guides. The purpose of placing certain parts of the text in bold is that the AMA 4 Guides are not to be followed on such matters. It would be inconsistent with the combination of s 133(2) and the mandatory terms in which parts of the unbolded text are expressed to suggest that the assessor can ignore what is, in effect, the bulk of the Guidelines. The point may be illustrated by two consecutive paragraphs under the head “Permanent impairment”:

6. [19]

   Under the heading “Application of Guidelines” reference is made to their application to original assessments (cl 1.4), further assessments (cl 1.5) and reviews of assessments (cl 1.6). The primary purpose of these provisions is not to limit the application of the Guidelines in some form, but to deal with changes in the Guidelines over time. Relevantly for present purposes, cl 1.6 provides:

7. [20]

   There are also general requirements with respect to “Causation of injury”, “Impairment and disability” and then, importantly, “Evaluation of impairment”. The last heading includes the following propositions:

8. [21]

   On one view, there is an inconsistency between cl 1.20(ii) of the Permanent Impairment Guidelines and cl 16.21.2 of the Medical Assessment Guidelines. The latter suggests that the panel is required to determine whether a re-examination is required, whereas the Permanent Impairment Guidelines provide that “[a]n interview and a clinical examination” is to be conducted as a part of the process “wherever possible”, at least in circumstances where such an interview and examination is “necessary” to obtain the information required.

9. [22]

   Any apparent inconsistency may readily be resolved. First, some forms of assessment may turn on diagnostic tests, whereas other forms of assessment (including levels of pain) will require reporting by the claimant. Clause 1.20(ii) envisages such differences in circumstance. It also envisages that an interview and clinical examination may not be practically possible in some cases. The Permanent Impairment Guidelines are specific to a particular kind of assessment; the Medical Assessment Guidelines apply to assessment disputes generally. To the extent that the Permanent Impairment Guidelines do require examination of the claimant, that obligation is not diminished by the general Medical Assessment Guidelines.

10. [23]

    Relevantly for present purposes, the Permanent Impairment Guidelines rely upon Ch 11 of the AMA 4 Guides, although for sexual dysfunction they require “objective pathology” before an impairment percentage can be given. [15]

11. [24]

    Chapter 11 of the AMA 4 Guides provides “criteria for evaluating the effects that permanent impairments of the urinary and reproductive systems have on the ability of individuals to perform their activities of daily living.” With respect to the bladder, Ch 11.3 notes that “the bladder is a voluntarily controllable reservoir for urine that normally permits the patient to retain urine for several hours. Symptoms and signs of impairment of function of the bladder may include urinary frequency, pain with voiding (dysuria),…. Objective techniques useful in evaluating function of the bladder include but are not limited to cystoscopy ….”

12. [25]

    It is clear that subjective reporting of “[s]ymptoms and signs of impairment of function” and of the effect on “activities of daily living” form an essential part of the evaluation of permanent impairment with respect to the bladder.

(d) correspondence with proper officer

1. [26]

   Section 65(2) of the Act provides that “[t]he Authority may arrange for the provision of training and information to medical assessors to promote accurate and consistent medical assessments under this Part.” Pursuant to this section, the Authority promulgated a “Review Panel Practice Note 3/2005” (“the practice note”) addressing “the Review Panel process”. Even when expressed in mandatory language, and where they may confine and structure discretion, such documents are not likely to give rise to controls which are legally enforceable by way of judicial review. [16] On the other hand, such provisions may provide a basis for demonstrating unfairness resulting from the breach of a procedural requirement.

2. [27]

   In large part, the practice note speaks in generalities and provides checklists of things to be considered. Relevantly for present purposes, it identifies a number of matters which the chairperson should ensure that the panel has considered, identified by reference to five questions of which the first is: [17]

3. [28]

   Paragraph 4 reads in part as follows:

4. [29]

   It was in this context that the Authority wrote to the solicitors for the appellant (Turner Freeman) on 9 August 2016 notifying them that the matter would be referred to a review panel. The letter identified the terms of the original assessment and, under the heading “Referral to a Review Panel”, noted that the panel would conduct a “new assessment” and would “confirm or revoke the certificate” issued by the assessor. The letter continued:

5. [30]

   On 11 August 2016 Ms Sally Gleeson, a partner at Turner Freeman, replied, referring to the letter of 9 August and continuing:

6. [31]

   On 16 August 2016 Ms Gleeson sent an email to the Authority in the following terms:

7. [32]

   There were aspects of the email which were not self-explanatory. For example, the first sentence suggested that the Authority may have already mislaid the letter of 11 August and was being given a second copy. Further, there appears to have been a letter from the Authority of 12 August (which was not in evidence), although it was possibly a mistaken reference to the letter of 9 August received on 10 August.

8. [33]

   In an affidavit of 25 November 2016 some further clarification was given by Ms Gleeson in respect of the first question. She stated: [18]

9. [34]

   Ms Gleeson said she did not receive a response until after the decision of the Review Panel of 31 August 2016, and then only by email dated 8 September 2016. As Ms Gleeson noted, the email of 8 September demonstrated that the Authority had in fact received the earlier email from her of 16 August.

10. [35]

    Ms Gleeson further stated in her affidavit that the Review Panel had “ignored my objection to their assessment going ahead without their examination of the plaintiff but had not advised me that they were proceeding in that fashion.” [19] The affidavit continued: [20]

11. [36]

    Despite the fact that the Authority had received the request from the appellant’s solicitor, and that the proper officer of the Authority was directly involved in the review process, it appears to have been assumed that the Panel was unaware of the correspondence. That assumption should be accepted.

12. [37]

    The review certificate contained a heading “Documentation and Other Material Reviewed.” [21] The correspondence with the appellant’s solicitor was not identified in that section.

13. [38]

    It may be that the certificate was wrong in this respect; there were other matters in the certificate of material significance which were wrong. For example, in identifying the dispute between the parties, the certificate stated:

14. [39]

    Under the heading “Matters considered and Decided by the Panel” the certificate stated:

15. [40]

    Despite these patent errors, it should not be inferred that the statement as to the material received by the Review Panel was inaccurate; there was nothing in the reasons to suggest that they knew that the applicant was seeking an interview and clinical examination.

(a) constructive failure to exercise statutory function

1. [41]

   The appellant’s case commenced with the proposition that the Review Panel was required to make a “new assessment of all the matters with which the medical assessment is concerned.” [22] Secondly, that assessment (like the original assessment) must be made in accordance with the Permanent Impairment Guidelines as required by s 133(2). The respondent did not challenge the proposition that a medical assessment was governed by the Permanent Impairment Guidelines, so that a departure from their requirements could constitute reviewable error. Rather, the respondent contended that there had been no significant departure.

2. [42]

   The relevant provisions with respect to the assessment of impairment contained two important propositions. One was that the assessment “involves three stages”, the second of which was “[a]n interview and a clinical examination”. [23] That obligation was qualified by the words “wherever possible”, but it was not in doubt that an interview and clinical examination would have been possible in the present case, as the appellant was both willing and able to undergo that exercise and requested that it occur.

3. [43]

   The second proposition, relied on by the respondent, was that cl 1.20(ii) allowed a discretionary judgment on the part of the review panel, because the purpose of the interview and clinical examination was to obtain information necessary to determine the extent of the impairment. The existence of such a discretion was, it was submitted, confirmed by the procedural requirement that a review panel should determine whether re-examination of the claimant is required. [24]

4. [44]

   The interrelationship between the provisions in the separate guidelines has already been addressed; the general statement in the procedural guideline should not be understood as diminishing the obligations of the panel as set out in the Permanent Impairment Guidelines, given statutory force by s 133(2). However, the respondent’s submission that the scope of the obligation is governed by its purpose, which is limited to obtaining information which is “necessary” to the exercise of the function, raised a question as to whether the scope of the obligation is a matter entirely for the review panel or is itself subject to judicial control.

5. [45]

   Although the respondent accepted that the relevant criteria required information as to the effect of the impairment on activities of daily living and on the normal functioning of the bladder, being information which could only be obtained from the appellant, it submitted that the relevant information had already been obtained by Dr Rochford and recorded by him in his certificate which was before the Review Panel. It was therefore not “necessary” to repeat the task in order to obtain the information; or at least it was open to the Panel to take that view, as they did.

6. [46]

   There was, of course, a time lapse of some four months between Dr Rochford’s assessment and that undertaken by the Review Panel. Because the Panel was required [25] to consider the impairment “at the time of the assessment”, a further step in the appellant’s submission was that the Review Panel lacked any basis to find that it had current information. The appellant sought to demonstrate that the appellant’s medical condition was a fluctuating condition. The respondent countered that Dr Rochford had expressed the view that the appellant’s medical condition had stabilised.

7. [47]

   In relation to the appellant’s submission, the Panel did not consider whether her condition might fluctuate, because it was not raised before them. In relation to the respondent’s submission, permanency of impairment was a statutory precondition to the carrying out of a medical assessment; [26] further the Permanent Impairment Guidelines required that it have stabilised before being assessed. [27] Applying the definition of permanency in the Guidelines, Dr Rochford expressed the view that the appellant “has reached a state of maximum medical improvement and her symptoms are unlikely to change significantly in the next year.” This was not a finding that her condition might not fluctuate over the ensuing months. In any event, these factual disputes cannot be resolved in judicial review proceedings.

8. [48]

   The opinion of the Panel as to the need to carry out an interview and clinical assessment was expressed in the following terms:

9. [49]

   Accepting that the question as to the need for “re-examination” was a factual issue for the Panel (and not a matter for the reviewing court to determine), the Panel’s decision was not a proper exercise of the function conferred on it.

10. [50]

    First, the decision to conduct (or not conduct) an interview and clinical examination is 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 Permanent Impairment Guidelines.

11. [51]

    The importance of such a process may be understood by analogy with the factual circumstances addressed by the High Court in Minister for Immigration and Border Protection v WZARH. [28] The applicant had claimed a protection visa based on his well-founded fear of harm in his home country, Sri Lanka, arising from his Tamil ethnicity. In protection visa cases, it is routine that the decision-maker will have access to “country information” in varying degrees of particularity against which to assess a claim of a well-founded fear of persecution. Nevertheless, the applicant’s own history will also be of central importance to the decision-making process. The applicant was interviewed by an officer who was unable to complete the process, responsibility being transferred to a second officer. The second officer formed an adverse view of the credibility of the applicant, but without conducting a further hearing. The second officer had, however, listened to a tape of the original hearing and read the transcript. Nevertheless, Kiefel, Bell and Keane JJ stated:

12. [52]

    The question of procedural unfairness will be addressed below; these observations are relevant to the importance of allowing a claimant to give his or her account in person to the decision-maker. Similar reasoning may be applied to a medical interview and examination.

13. [53]

    Secondly, the Panel had only brief notes of the history and symptoms recounted to Dr Rochford. He had set out in his certificate (in the present tense) what might be described as symptoms of bladder dysfunction as reported by the appellant. The Panel had no information as to whether the appellant agreed that his description reflected the seriousness of her condition, although the Panel itself, in determining that the level of impairment was 2%, rather than 10%, identified a major discrepancy between Dr Rochford’s description and his assessment. The Panel may have thought that the appellant accepted Dr Rochford’s description because she had not sought a further interview and examination, but that was an erroneous assumption.

14. [54]

    In Dranichnikov v Minister for Immigration and Multicultural Affairs, [30] the applicant contended in the High Court “that the Tribunal misstated and failed to deal with the case presented to it.” [31] Gummow and Callinan JJ responded to this complaint in the following terms:

15. [55]

    To similar effect, Kirby J stated: [32]

16. [56]

    By parity of reasoning, given that the Panel was required to consider subjective as well as objective criteria, which could only be assessed upon examination of the appellant and considering her description of her condition, the circumstances in which it can be legitimate to reject an application for examination will be rare. The decision not to examine in such circumstances cannot properly be exercised on a false belief that the claimant does not seek an examination.

17. [57]

    The decision of the Panel to rely entirely upon the description given by the original assessor of the complainant’s condition, while concluding that his assessment should be reduced by 80%, was flawed. The Panel was required to carry out the whole process of assessment afresh; to accept all the findings (it made no finding of its own as to permanency) of the original assessor, whilst rejecting his conclusion, was to run perilously close to the error identified in Allianz Australia Insurance Ltd v Rutland, [34] namely to reassess only that aspect of the original assessment which the proper officer had found reasonable cause to suspect was incorrect in a material respect.

18. [58]

    Whether the Panel would have refused to allow an interview and clinical examination had it known that the appellant sought one cannot be known. All it decided was that a re-examination “was not necessary.” It reached that conclusion on a false premise. The conclusion was an essential element of the assessment process, which accordingly miscarried.

19. [59]

    The primary judge reached a different conclusion. In dealing with the grounds of review, the primary judge commenced with the complaint of failure to exercise the statutory function. He reasoned that “[c]lause 16.21.2 of the Medical Assessment Guidelines … makes it clear that it was for the Panel members to determine, according to their respective professional opinions, whether a re-examination of the plaintiff was required.” [35]

20. [60]

    He noted that there was doubt as to the legal status of the Guidelines, but continued: [36]

21. [61]

    The judge also referred to the following statement in Rutland: [37]

22. [62]

    The Court in Rutland further noted that the review panel did not have the benefit of any transcript or clinical notes of the original assessors examination and said that in those circumstances, “and recognising that clinical judgment between medical practitioners may vary on the issue which had to be assessed, it would, in our view, be surprising and unusual that a panel of medical assessors seeking to assess a person’s degree of impairment due to a particular psychological injury would not interview the relevant individual so as to be satisfied they have an accurate and complete history of his or her pre-accident lifestyle, activities and habits and the extent to which those may have changed as a result of that injury ….” [38]

23. [63]

    It is true that Rutland involved circumstances which differed from the present case in two respects, namely (a) that the question was not whether the review panel was required to interview the claimant, but whether it had approached its tasks too narrowly by focusing on the alleged errors in the original assessment, [39] and (b) the relevant impairment involved a psychiatric illness, not bladder dysfunction. However, the observations set out above had direct relevance for the present case. It is true that they may have supported a conclusion that “[r]e-examination is not so inflexibly prescribed that failure to undertake it necessarily and of itself constitutes a repudiation of the statutory function”, as suggested by the primary judge, but that was not the question which needed to be addressed. [40]

24. [64]

    The primary judge’s conclusion was in the following terms: [41]

25. [65]

    The first sentence in this passage is open to challenge on two grounds. First, it did not refer to evidence which was current at the time of the review, as opposed to the time of the original assessment, albeit the difference was only four months. Secondly, a judgment as to where on the scale of percentage impairment the claimant’s account as summarised by Dr Rochford would fall appears not to have been self-evident to the medical practitioners, who differed widely; it is certainly not a matter on which the Court’s view is relevant. Further, to say that practitioners might reasonably conclude that a further clinical examination or account of the appellant’s circumstances would not lead to a different result, does not mean that they could properly perform their function without taking the steps which would usually be involved in such an assessment. It is possible that the difference between the percentages accepted by the Review Panel and by Dr Rochford was a function of the fact that Dr Rochford examined the appellant personally, whereas the Review Panel did not.

26. [66]

    The decision of the Review Panel not to interview and clinically examine the appellant was fatally flawed. Given the criteria which they were required to address, the failure properly to address that issue involved a constructive failure to carry out their statutory function of conducting a new assessment. The fact that it occurred without fault on the part of the Panel is immaterial.

(b) failure to accord procedural fairness

1. [67]

   On the assumption that the foregoing conclusion is erroneous, it is necessary to assess whether the appellant was denied procedural fairness by not being given an opportunity for an interview and clinical examination, as requested by her solicitor, or to take alternative steps if her request were denied. It was common ground that the Review Panel was obliged to accord the appellant procedural fairness.

2. [68]

   The primary judge correctly rejected any unqualified analogy between the function of a review panel and that of a court. [42] He then reasoned that an examination is not otherwise “a self-evident aspect of procedural fairness” and referred again to the decision in Rutland: [43]

3. [69]

   The primary judge did not at this point advert to the fact that the appellant had asked for an opportunity to be interviewed and clinically examined, a fact of which the Review Panel was unaware. However, he concluded that an “interview”, which he then treated as equivalent to a “hearing”, would only be necessary where there was a “critical issue which affected the review panel’s determination and which would not have been anticipated by the plaintiff, such that she ought to have been given an opportunity to respond.” [44] The judge continued:

4. [70]

   This statement assumed both that the brief summary of the appellant’s case in Dr Rochford’s certificate meant that the Panel had all the relevant facts, and that the appellant’s circumstances had not changed since she gave her account to Dr Rochford. The reasoning falls into the error identified by Deane J in Kioa v West: [45]

5. [71]

   Finally, with respect to the separate concept of a clinical examination, the judge concluded:

6. [72]

   This too is not a basis for denying the person an opportunity to have a clinical examination in order to (a) correct any errors in the account in Dr Rochford’s certificate, (b) flesh out the detail which was probably missing from the brief record, and (c) update the description of her circumstances and symptoms.

7. [73]

   However, the issue is not whether she should have been given an opportunity to give her account of her symptoms and the effect on her daily activities, nor whether the Review Panel should have carried out a clinical examination, but rather, in circumstances where she had expressly requested that those steps be taken, whether she should have been advised in advance that they would not be taken so that further information could be supplied indirectly by means of a submission.

8. [74]

   A judicial assumption that an opportunity to provide further evidence or material could not have affected the outcome is fraught with difficulty. In Re Refugee Tribunal; Ex parte Aala, [46] the prosecutor, Mr Aala, was advised by the Tribunal before which he was appearing that it had certain material which he had provided in advance of the hearing. As a result, he did not make submissions repeating what was in that material. In fact the Tribunal did not have it. Gleeson CJ stated: [47]

9. [75]

   A central element in this case is that the claimant was willing and able to participate in a further interview and clinical examination and had asked that that happen. The trial judge dismissed both the grounds of constructive failure to exercise a statutory function and procedural unfairness without regard to the letter from the proper officer inviting her to indicate if she objected to a review “on the papers”. When the judge turned to the effect of the letter, he merely said that it “did not alter” the conclusion already reached. He continued: [49]

10. [76]

    This reasoning cannot be accepted. First, the proffering of an opportunity to allow an applicant to take a particular step can indeed give rise to procedural unfairness if the opportunity is subsequently withdrawn without notice, even if the opportunity need not have been proffered in the first place. Secondly, it was not merely the proffering of an opportunity, but the response with the request for an interview and examination which needed to be addressed. Thirdly, because the Tribunal was unaware of what had transpired, there was no decision to proceed without granting the appellant the steps she sought to have taken, or allow her the opportunity to adopt an alternative course. (Her situation was close to that of persons misled into not making submissions.) Fourthly, the approach adopted by the Review Panel appears to have been based on the proposition that the appellant “agreed with” the application for review. That was patently fallacious; indeed, it suggested that the Panel had not read or understood the substantive reply which had been filed by the appellant’s solicitor. At least, if it took that view, it was a matter which should have been exposed to the appellant to allow her to respond.

11. [77]

    On appeal, the respondent contended that, accepting that the response to the letter had gone astray, there was no procedural unfairness because no “practical injustice” had occurred, adopting the language of Gleeson CJ in Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam. [50] Senior counsel further submitted that the statement by the appellant’s solicitor as to what steps she would have taken on behalf of the appellant had she known that an interview and clinical examination would be refused, as set out at [35] above, did not demonstrate injustice for two reasons. First, the solicitor did not identify the content of any further submissions which would have been made, so as to allow the Court to assess whether there had been any change in circumstances warranting a further examination. Secondly, the assertion that evidence would have been put before the Review Panel was based on the solicitor’s false belief that the Panel had “ignored the particular findings on examination by Dr Rochford”. [51]

12. [78]

    The second submission may be addressed first. As counsel for the respondent recognised, the affidavit was a mixture of factual material and material in the nature of submissions. The passage in which it said that the Panel “ignored” the particular findings on examination by Dr Rochford is argumentative in style; it does not purport to state a fact, but an inference from the large divergence between the 2% reached by the Panel and the 10% reached by the original assessor on the same material. In any event, the beliefs of the solicitor as to how the Panel reached its decision are of no present relevance.

13. [79]

    The first submission, based on “practical injustice”, needs to be addressed by reference to the issues in Ex parte Lam and to pre-existing and well established principles which were not in issue in Ex parte Lam.

14. [80]

    Broadly speaking, the reviewing court does not assess the conclusions of the tribunal against the material before it, as it might on an appeal by way of rehearing. The underlying principle derives from the fact that judicial review is only concerned with policing the legal limits of power. The rules applied in respect of judicial review where there is an allegation of procedural unfairness are those identified in Stead v State Government Insurance Commission, albeit a case involving an appeal from a civil trial. [52] At trial, evidence had been called as to causation from a medical expert for the defendant; in the course of the plaintiff’s submissions, the trial judge indicated that he did not accept the expert and no further submissions were made on behalf of the plaintiff. The judge ultimately accepted the evidence and, on appeal, the plaintiff’s complaint of procedural unfairness was upheld. The question was whether relief should be withheld on the basis that no miscarriage of justice had occurred because further argument could not have made a difference to the result.

15. [81]

    The High Court noted that to refuse relief would be to deny the plaintiff a fair trial; subject to one qualification, relief would not be refused: [53]

16. [82]

    A similar approach was adopted in the UK in 1971 in Malloch v Aberdeen Corporation, [56] although the UK Supreme Court has recently reopened the issue. [57] In Australia, Stead has been consistently applied in judicial review proceedings, for example, in Ex parte Aala. [58] Ex parte Aala was another case in which a party before a tribunal was misled into not making submissions about a particular matter. Referring to Stead, as already noted, Gleeson CJ said that, “[i]t cannot be concluded that the denial of that opportunity made no difference to the outcome of the proceeding. … It is possible that, even if the prosecutor had been given an opportunity to deal with the point, the Tribunal’s ultimate conclusion would have been the same. But no one can be sure of that. Decisions as to credibility are often based upon matters of impression, and an unfavourable view taken upon an otherwise minor issue may be decisive.” [59]

17. [83]

    To similar effect, Gaudron and Gummow JJ stated: [60]

18. [84]

    In these cases, the Court was not concerned with what further submissions might have been made, because the reviewing court is in no position to assess the significance which might have been paid to further submissions, whatever they might be, by the tribunal of fact, which did not hear them. As further explained by Gaudron and Gummow JJ, cases where futility will lead to a refusal of relief include cases where “the decision-maker was bound by the governing statute to refuse” the application or the applicant had been stopped in making submissions “on a point of law which must clearly have been answered unfavourably” to the applicant. [61] No such conclusion could be reached in the circumstances of this case.

19. [85]

    Ex parte Lam concerned the cancellation of the applicant’s visa. The decision-maker had to take into account the best interests of his children. The applicant had supplied submissions in relation to the interests of his children and his bond with them and included a letter from the carers of the children. A letter from a departmental officer sought contact details for the children’s carers because it wished to contact them before making a decision to cancel the visa. The applicant supplied the information, but the department did not take steps to contact the relevant carer, Ms Tran. The visa was cancelled and the applicant sought to review the cancellation on the basis that he had had a “legitimate expectation” that Ms Tran would be contacted before a decision was made. Gleeson CJ, after referring to the sole basis of complaint, namely the lack of contact with Ms Tran after the letter was sent, stated: [62]

20. [86]

    The application was dismissed, on the basis that disappointment of a “legitimate expectation” provided no independent ground of review. As further explained by the Chief Justice: [63]

21. [87]

    In a passage expressly relied upon by the respondent, the Chief Justice continued: [65]

22. [88]

    To similar effect, McHugh and Gummow JJ stated: [66]

23. [89]

    Ex parte Lam was an extreme case. Statements that the applicant placed no reliance on the letter and would not have placed further material before the decision-maker had he been told that the department did not intend to contact the carer again, does not mean that, in order to succeed, all applicants must put on evidence as to such matters. Ex parte Lam sounded the death knell of legitimate expectations as an independent head of review in Australia, but otherwise did not change established principle. So much may be inferred from Applicant NAFF of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs, [68] decided less than two years after Ex parte Lam. The applicant was interviewed by the Tribunal, at the conclusion of which the Tribunal member said: [69]

24. [90]

    In fact she did not do so. The Tribunal decision, adverse to the applicant, was challenged for procedural unfairness. The High Court identified procedural unfairness in the following terms: [70]

25. [91]

    Most recently, the High Court returned to the question of “legitimate expectations” in Minister for Immigration and Border Protection v WZARH. [72] In two joint judgments, the Court affirmed that the concept of “legitimate expectations” is both unnecessary and unhelpful. The facts have been briefly stated above. [73] Kiefel, Bell and Keane JJ identified two issues for determination, namely “whether it was unfair for the Second Reviewer to proceed by reference only to some of the information made available to the First Reviewer and the impressions as to his credibility formed from those materials, and whether it was unfair to deny the respondent the opportunity to be heard on whether the IMR should proceed in that way.” [74]

26. [92]

    The joint reasons then addressed the first issue in the passages set out at [51] above and continued:

27. [93]

    Gageler and Gordon JJ in WZARH dealt expressly with the observations of Gleeson CJ in Ex parte Lam at [58] and [60]. Read in their context, those observations were as follows:

28. [94]

    The present case was not one in which a claimant was dissuaded from making submissions because she was misled by the decision-maker; rather it was a case in which the decision-maker failed to provide an opportunity either for an interview and clinical examination, or for further submissions, because it was itself misled as to the appellant’s wishes, through no fault of hers. The result, however, was the same: the appellant was deprived of an opportunity to put her case fully before the Review Panel, either as to why she “objected” to the Panel proceeding “on the papers”, or as to what she might do if her objection were rejected. That constitutes procedural unfairness; she did not have to tell the reviewing court what she would have said if she had been accorded the opportunity by the Panel, not least because the court could not (and should not) assess how the Panel might have responded.

29. [95]

    Further, given the criteria and the statutory scheme outlined above, including by reference to the Permanent Impairment Guidelines, this is a case where impressions created by a personal interview and clinical examination may well have been of such potential significance that a reasonable review panel could not properly have denied her the opportunity for such a process had it been aware that she sought it. That alone may be sufficient to justify a finding of procedural unfairness. It cannot be demonstrated that the absence of such opportunities “did not deprive [the appellant] of the possibility of a successful outcome”, and hence relief should not be refused.

The terms of the letter

1. [96]

   Although the appeal must be upheld for the reasons already given, it is appropriate to note that the letter from the proper officer, which reflected the language of the practice note, spoke of a party who has “objected to the review being conducted ‘on the papers’.” [84] That aspect of the practice note is inconsistent with the preceding statement of principle, namely that the panel “should generally include a re-examination of the claimant, except in cases where there is no dispute, ambiguity or uncertainty as to the clinical findings that are required in order to complete all aspects of the assessment.”

2. [97]

   The importance of an interview and clinical examination in circumstances where the criteria indicate that information supplied by the claimant will be material, if not critical, casts doubt on the propriety of a letter which appears to assume that the review will be conducted “on the papers” unless the claimant “objects” and further requires that, if the claimant does object, he or she should provide reasons why an examination is required.

3. [98]

   Whether such letters are in identical form where it is the claimant who seeks review, rather than the respondent, is not apparent from the evidence. In either case, the underlying inference of an assumption against interview and clinical examination is inconsistent with the principles discussed above.

4. [99]

   Further, the letter required a response “by the initial conference date”, but no date was identified, presumably because no date had then been fixed. Whether the claimant was advised of the date in a manner which reiterated the right to make a request (or “objection”) is not known. No harm was done in the present case because the appellant had an experienced solicitor.

Orders

1. [100]

   The Court should make the following orders:

   1. (1)

      Allow the appeal and set aside the orders made in the Common Law Division on 20 June 2017.

   2. (2)

      Order that the Review Panel certificates dated 31 August 2016 and 5 September 2016 be set aside.

   3. (3)

      Order that the first respondent pay the appellant’s costs of the appeal.

   4. (4)

      Order that the first defendant (Allianz) pay the plaintiff’s costs in the Court below.

2. [101]

   MACFARLAN JA: I agree with the judgments of both Basten JA and Sackville AJA.

3. [102]

   SACKVILLE AJA: I am grateful to Basten JA for recording the facts and setting out the relevant provisions of the following:

Background

1. [103]

   The appellant commenced proceedings in the Common Law Division seeking judicial review of the Review Panel Certificate issued on 31 August 2016 by the Medical Review Panel (Review Panel) pursuant to s 63(4) of the MAC Act. The Review Panel revoked the Medical Assessment Certificate issued by Dr MJ Rochford on 6 May 2016 which assessed the degree of permanent impairment of the appellant for the purposes of s 131 of the MAC Act at 10 per cent. In lieu of that assessment, the Review Panel assessed the appellant’s degree of permanent impairment relating to injuries sustained by her in the motor vehicle accident of 8 June 2012 at two per cent. The Review Panel described the appellant’s injuries resulting from the accident as “Urinary bladder-overactive”.

2. [104]

   In order for the appellant to be entitled to damages for non-economic loss s 131 of the MAC Act requires that her degree of permanent impairment be greater than 10 per cent. The consequence of the Review Panel’s assessment, taking into account other Medical Assessment Certificates issued in relation to different injuries sustained by the appellant, was that she could not satisfy the statutory threshold and thus was not entitled to damages for non-economic loss.

3. [105]

   The appellant’s summons in the Common Law proceedings alleged that the Authority should have advised the appellant’s solicitor that the Review Panel would not interview the appellant or, alternatively, that the Review Panel should have interviewed the appellant before making its decision. The failure to take either course was said to constitute a denial of procedural fairness.

4. [106]

   As the primary Judge noted, the appellant’s submissions in the Common Law proceedings strayed from the grounds identified in the summons. Among the additional arguments advanced on her behalf, the appellant contended that the decision comprised in the Review Panel Certificate was vitiated by jurisdictional error because the Panel was required by statute to conduct a re-examination of the appellant but had failed to do so.

5. [107]

   The appellant’s notice of appeal identifies 17 grounds of appeal. In my opinion it is necessary to deal only with the contention that the primary Judge erred in failing to conclude that the Review Panel denied the appellant procedural fairness. I express no view on the other grounds raised by the appellant some of which raise issues not fully canvassed in the parties’ submissions.

Procedural fairness

1. [108]

   Mr Rewell SC, who appeared for the first respondent (Insurer) did not dispute that the principles of procedural fairness apply to a determination by the Review Panel. [85] Nor did Mr Rewell dispute that the PI Guidelines applied to the Review Panel’s review of Dr Rochford’s assessment. [86] Thus the Review Panel, in assessing the degree of the appellant’s impairment, had to follow the three stages specified in cl 1.20 of the PI Guidelines. The second of the three stages is as follows:

2. [109]

   The Practice Note was issued pursuant to the Authority’s power to provide training and information to assessors. Nonetheless, Mr Rewell correctly accepted that the contents of the Practice Note can be taken into account in determining whether the appellant was denied procedural fairness. The Practice Note includes the following provisions:

3. [110]

   The Authority wrote to the appellant’s solicitor on 9 August 2016 inviting her to indicate whether the appellant objected to the Review Panel being conducted without an examination and, if so, to provide reasons why an examination was required. As Basten JA has pointed out, the letter was apparently drafted by reference to par 4(a)(ii) of the Practice Note and seems not to have taken account of the general principle stated in par 4(a)(i) of the Practice Note [87] or the terms of cl 1.20(ii) of the MA Guidelines. [88]

4. [111]

   In any event, the solicitor’s responses made it clear that the appellant wished to be examined by the Review Panel. Indeed the solicitor’s letter of 11 August 2016 asserted that the Review Panel could not give proper consideration to the application for review without an examination of the appellant, particularly having regard to the Review Panel’s duty to determine the matter afresh. The solicitor’s letter was not passed on to the Review Panel which proceeded on the erroneous assumption that the appellant did not object to the review being conducted on the documentation provided to the Review Panel. The appellant’s solicitor was not notified that the Review Panel did not propose to re-examine her until after the Review Panel made its assessment of her percentage permanent impairment by reason of the injuries to the appellant’s bladder.

5. [112]

   A decision-maker’s departure from a representation made by it or on its behalf as to the manner in which a review or assessment is to take place does not, of itself, constitute a denial of procedural fairness to the claimant. [89] However, such a departure may constitute a denial of procedural fairness if the circumstances show that the claimant has suffered practical injustice.

6. [113]

   In Re Minister for Immigration and Multicultural and Indigenous Affairs; ex parte Lam (Ex parte Lam), [90] Gleeson CJ observed that: [91]

7. [114]

   Gleeson CJ identified Haoucher v Minister for Immigration and Ethnic Affairs (Haoucher) [93] as a case in which a decision-maker’s failure to take a procedural step caused a claimant to lose an opportunity to make representations and thus denied the claimant procedural fairness. In Haoucher, the Minister had a statutory power to order the deportation of a non-citizen who had been convicted of certain offences. A ministerial policy statement tabled in Parliament stated that only in exceptional circumstances would the Minister overturn a recommendation by the Administrative Appeals Tribunal to revoke a deportation order. The High Court, by majority, held that procedural fairness required that the deportee be given the opportunity to be heard on the question of exceptional circumstances. [94] Specifically, the deportee was entitled to know what circumstances were said by the Minister to be exceptional and to be given an opportunity to address the question. [95]

8. [115]

   Some of the language in the majority judgments in Haoucher refers to “legitimate expectations”, a concept since rejected as a touchstone for determining whether procedural fairness should be accorded to a person or for determining the content of procedural fairness. [96] But as Gleeson CJ’s reference shows, the decision in Haoucher does not depend on the concept of legitimate expectations, but on the principle that if a decision-maker has represented that a particular procedure will be followed, fairness may require that the decision-maker be held to the representation. [97]

9. [116]

   If a decision-maker fails to follow an announced procedure, there may be an issue as to whether the claimant must show that he or she would have acted differently had the correct procedure been followed. In Ex parte Lam, the Minister was considering whether to cancel the applicant’s visa on character grounds. A representative of the Minister indicated to the applicant that the Department wished to contact a carer of the applicant’s children to assess the impact of cancellation of the visa on the children. No such contact took place. However, there was no suggestion that the applicant would have acted differently had he had known that the Department would not contact the carer.

10. [117]

    The applicant’s claim to have been denied procedural fairness was rejected. According to Gleeson CJ, no practical injustice had been shown because the applicant had not lost any opportunity to present his case and had not relied to his disadvantage on the Department’s statement of intention. [98] Other members of the Court took the same view. [99]

11. [118]

    The decision in Ex parte Lam does not mean that it is always necessary for a person seeking to establish a denial of procedural fairness to prove what he or she would have done if procedural fairness had been observed. As Gageler and Gordon JJ explained in Minister v WZARH: [100]

12. [119]

    The facts of Minister v WZARH bear some resemblance to those of the present case. The claimant sought an “Independent Merits Review” of a decision of a delegate of the Minister to refuse the claimant’s application for a protection visa. The claimant was interviewed by a reviewer who told him she would undertake a rehearing of his claim and consider all information he provided. Subsequently, a second reviewer took over the review. The second reviewer rejected the claimant’s application without a further interview of the claimant, although the second reviewer had available a transcript and recording of the interview conducted by the first reviewer. The High Court held that the second reviewer had denied the claimant procedural fairness by failing to conduct another face to face interview.

13. [120]

    The plurality in Minister v WZARH pointed out that the first reviewer could take into account the impression gained at the interview in determining whether the claimant’s account of events was truthful. This fact provided a basis on which to distinguish Ex parte Lam. [101] The plurality reasoned as follows: [102]

14. [121]

    It follows from Minister v WZARH that there are circumstances in which a decision-maker’s failure to interview (or, in a medical case, examine) a claimant may constitute a denial of procedural fairness. It also follows that in order to make out a denial of procedural fairness, a claimant does not necessarily have to show what he or she would have done had procedural fairness been afforded. The touchstone is whether the claimant has shown that the procedure adopted involved practical injustice.

15. [122]

    There are a number of features of this case that are of significance on the question of whether the appellant was denied procedural fairness.

16. [123]

    First, the Review Panel was required by cl 1.20(ii) of the PI Guidelines to conduct an interview and clinical examination, wherever possible, to obtain the information specified in the MA Guidelines and the AMA 4 Guidelines necessary to determine the percentage impairment.

17. [124]

    Secondly, the Practice Note, which contains General Principles for the guidance of the Review Panel, states that:

18. [125]

    Thirdly, Chapter 11 of the AMA 4 Guidelines, which applies to the urinary and reproductive systems, provides criteria:

19. [126]

    Chapter 11.3 of the AMA 4 Guidelines identifies four classes of “Impairment of Whole Person” where there is permanent impairment of the bladder. A patient is within Class 1 (0 to 15 per cent impairment) when:

20. [127]

    Fourthly, Dr Rochford conducted an interview with and examination of the appellant. He therefore had the advantage afforded by an interview and examination in applying the criteria laid down by Chapter 11 of the AMA 4 Guidelines

21. [128]

    Fifthly, in response to the Authority’s invitation to indicate whether the appellant objected to the review being conducted without an examination, the appellant’s solicitor in effect asserted that an examination was essential if the Review Panel was to carry out its task. Since the reply was never passed on, the Review Panel was unaware that the appellant did indeed object to the review being conducted without an examination. Accordingly, the Review Panel’s determination was made without a re-examination of the appellant.

22. [129]

    Sixthly, the Review Panel was required by the PI Guidelines, cl 1.23, to consider the impairment at the date of its assessment, not the date of Dr Rochford’s assessment.

23. [130]

    The Practice Note constituted a public pronouncement that the Review Panel, if the appellant objected to the review being conducted on the papers, would “generally” conduct a re-examination. The Review Panel clearly accepted that it should proceed consistently with the Practice Note, since the letter it sent to the appellant’s solicitor was drafted by reference to the language in the Practice Note.

24. [131]

    Independently of the Practice Note, by virtue of the PI Guidelines the Review Panel was obliged, wherever possible, to obtain the information specified in the AMA 4 Guidelines necessary to determine the percentage impairment. Clearly in this case a re-examination of the appellant was possible. It may be accepted that it was for the Review Panel to make a judgment as to whether a re-examination was “necessary to determine the percentage impairment” referable to the injuries to the appellant’s bladder. But in making that judgment the Review Panel had to take into account not merely the objective clinical manifestations of the appellant’s condition, but (in the language of the AMA 4 Guidelines) the impact of the appellant’s urinary condition on her ability to perform the activities of daily living. The fact (unknown to the Panel) that the appellant not only wished to be re-examined but considered a re-examination essential if the Review Panel was to make its decision afresh, was clearly material to the question of whether a re-examination was “necessary to determine the percentage impairment”.

25. [132]

    In these circumstances, the Authority’s failure to inform the Review Panel that the appellant insisted on a re-examination resulted in practical injustice in at least two respects. First, the Review Panel was unable to take into account the appellant’s objection when considering whether or not the general rule stated in par 4(a)(ii) of the Practice Note should be followed because the Review Panel was not told that she objected to the review being conducted unless a re-examination took place. Secondly, the Review Panel was unable to make a fully informed decision as to whether a re-examination was “necessary to determine the percentage impairment” unless it took into account that the appellant considered a re-examination to be essential for the proper discharge of the Review Panel’s statutory functions.

26. [133]

    The Review Panel’s judgment on these matters had to be made for the purpose of assessing the degree of the appellant’s permanent impairment or as at the date of the assessment. That task, as has been noted, did not merely require the Review Panel to make an objective clinical judgment about the nature and extent of the physical damage to the appellant’s bladder. The Review Panel had to assess the impact of the physical damage on the appellant’s “activities of daily living”. The appellant’s own experiences and her perceptions of the impact of her condition on her daily life were directly relevant to that question.

27. [134]

    In my view, this is a case where the procedure adopted by the Review Panel, albeit through no fault of the members, denied the appellant a fair opportunity to be heard and therefore resulted in practical injustice. The appellant was denied the opportunity to have the Review Panel make a fully informed decision, in accordance with the published criteria, as to whether it should conduct a re-examination.

28. [135]

    It cannot be said that if the Review Panel had before it the appellant’s request for a re-examination it would still have decided that a re-examination was neither necessary nor appropriate. And it certainly cannot be said that the Review Panel’s assessment would inevitably have been the same even if a re-examination had taken place. [103] It follows that it was not essential for the appellant to demonstrate what she or her advisers would have done had the Review Panel informed her in a timely fashion that it intended to reject her request for a re-examination to take place. Nor was it necessary for the appellant to show that her actions were likely to have made a difference to the Review Panel’s decision. The procedure adopted by the Review Panel involved practical injustice to the appellant.

29. [136]

    If, contrary to my view, the appellant had to demonstrate that, if given the opportunity, she would have taken further steps to attempt to persuade the Review Panel to assess her degree of permanent impairment at higher than two per cent, the appellant discharged that burden.

30. [137]

    The appellant’s solicitor, Ms Gleeson, gave unchallenged evidence that the Review Panel did not advise her of their decision not to re-examine the appellant until after the Review Panel had issued its certificate assessing the appellant’s whole person impairment at two per cent. Ms Gleeson further stated as follows:

31. [138]

    As Mr Rewell pointed out, this evidence was perhaps less precise than it might have been, in that the affidavit did not specify the additional material on which the appellant wished to rely. Nonetheless, the evidence establishes that if the Review Panel had notified the appellant’s solicitor that the request for a re-examination had been rejected (a notification that could have been made only if the Review Panel was aware of the request), the appellant would have provided additional material addressing the question the Review Panel was required to consider. Had this course been followed, there is at the very least a real possibility that the Review Panel’s assessment may have been more favourable to the appellant.

32. [139]

    Contrary to Mr Rewell’s submissions, it is not to the point that there was no specific evidence that the appellant’s physical condition had deteriorated in the four months between the assessment of Dr Rochford and that of the Review Panel. The appellant may well have wished to present more detailed information explaining the effect of her bladder condition on her daily life in order to explain and support Dr Rochford’s assessment of her permanent impairment or even to argue for a higher percentage assessment. The appellant was denied that opportunity.

Orders

1. [140]

   I agree with the orders proposed by Basten JA. However, I would make the following additional order which was sought in the appellant’s summons filed in the Common Law Division proceedings: