Insurance Australia Limited v Kong Lai Kai

By further amended summons filed in Court on 20 June 2018, Insurance Australia Limited (the plaintiff, or the insurer) seeks relief pursuant to ss 65 and 69 of the Supreme Court Act 1970 (NSW). The first defendant is Kong Lai Kai (the defendant, or the claimant). The second defendant, the State Insurance Regulatory Authority of New South Wales (the Authority), has filed a submitting appearance. The original summons was filed on 16 March 2018.

The plaintiff, a compulsory third-party insurer, has admitted liability to the claimant for injuries sustained by her as a result of a motor vehicle accident.

In essence, the insurer claims that it was entitled to have the medical dispute it referred to the Authority referred by the Authority for medical assessment. The insurer submitted that instead of referring the whole medical dispute for medical assessment, the Authority referred only part of it. The insurer contended that the Authority was obliged by the statutory duty imposed on it by s 60 of the Motor Accidents Compensation Act 1999 (NSW) (the Act) to refer the whole dispute and, having failed to discharge its statutory duty, ought be ordered to do so.

All references to legislation in these reasons are references to the Act, unless otherwise stated.

Before turning to the facts, I propose to summarise the relevant statutory provisions, which are principally contained within Part 3.4 of the Act, together with authorities which are of significance to the present case.

Part 3.4 of the Act, entitled “Medical Assessment”, provides for the assessment by medical practitioners of medical issues which arise between claimants and insurers. Medical assessment, which is undertaken by medical practitioners, is to be distinguished from claims assessment, which is undertaken under Part 4.4 by lawyers.

Section 57 defines “medical assessment matters” as meaning any of the matters referred to in s 58 (set out below). A “medical assessor” is a person appointed under Part 3.4. A “medical dispute” means “a disagreement or issue to which this Part applies.” It is of significance that the term “medical dispute” is defined to include “issue” which is a word of wide import.

Section 58 relevantly provides:

Section 58(1) covers not merely past treatment, but also future treatment (“to be provided”) and causation (s 58(1)(b)). Section 58(2) expressly contemplates that a court or a claims assessor can have a medical dispute referred for medical assessment. Thus, Part 3.4 is not merely a mechanism which operates between the insurer and the claimant before the question of damages is under consideration by a claims assessor or a court, but also during that process.

Section 59 requires the Authority to appoint medical practitioners and other suitably qualified persons to be medical assessors for the purposes of Part 3.4. Section 59(2) provides that the terms of the appointment may restrict a medical assessor to disputes of a particular kind.

Section 60 is central to the issues in the present case. It provides:

Several matters may be noted about s 60. First, the word “may” in s 60(1), which is expressed in the passive voice, refers to the right of either party to the dispute (the insurer or the claimant), a court or a claims assessor to refer a medical dispute to the Authority. Referral of a medical dispute to the Authority by any of those persons or institutions imposes an obligation on the Authority, under s 60(2), to “arrange for the dispute to be referred” to one or more medical assessors. The word “arrange” in this context connotes a facilitative role. The words “is to” impose a mandatory obligation on the Authority to refer the dispute to one or more medical assessors. Further, it is plain from the wording of s 60 that what is to be referred to the medical assessors is “the dispute”, that is, the medical dispute that has been referred by one of those persons or institutions described in s 60(1).

The role of the Authority under s 60 was considered in Insurance Australia Ltd t/as NRMA Insurance v Scott (2016) 92 NSWLR 741; [2016] NSWCA 138 (Scott). In that case, the insurer referred the issue of domestic assistance and attendant care to the Authority, which in turn referred the medical dispute for assessment. I note that the Authority in Scott referred the dispute that had been referred to it, without changing or refining it (in contrast to the present case). The medical assessors determined the dispute and issued a certificate. The claimant challenged the certificate on the basis that domestic assistance and attendant care did not amount to “treatment” within the meaning of Part 3.4. The primary judge upheld this argument, quashed the certificate and found that the existence of a medical dispute was a jurisdictional fact that was amenable to judicial review. The Court of Appeal found that the existence of a medical dispute was not a jurisdictional fact to be determined by the court. At [100] Ward JA (Basten JA and Gleeson J agreeing) referred to ss 56-60 as “mandatory provisions”. Her Honour said at [118], with respect to the availability of judicial review with respect to a referral by the Authority to the assessors:

Her Honour continued at [119]:

Basten JA said, obiter, that the existence of a “disagreement or issue” is a factual matter to be determined by the Authority (if the subject matter of the disagreement falls within the defined terms of matters) and that the decision to refer the matter to assessment should not have been set aside by the primary judge as there was no contention that that the opinion of the Authority was founded on some irrational or legally erroneous basis: [6]-[9].

In Lithgow v Insurance Australia Ltd trading as NRMA Insurance [2017] NSWSC 1104, I said at [42] with respect to s 60(2), obiter:

Section 61 of the Act is also significant because its effect explains, in part, why the insurer wants all the matters it has referred to the Authority to be referred for medical assessment. Section 61(1) relevantly provides:

There was some debate about the status of reasons given by the medical assessor or assessors, as distinct from the certificate itself. Ms Allars SC, who appeared with Mr Trainor on behalf of the claimant, in reliance on Little v Allianz Australia Insurance Limited [2017] NSWSC 1024 (Little) at [41]-[42] (Campbell J), contended that every word of the reasons constituted conclusive evidence as the reasons were part of the certificate under s 61(9). I do not regard Little as standing for this proposition. In any event, this submission must be rejected as inconsistent with Pham v Shui [2006] NSWCA 373; (2006) 47 MVR 231 in which Santow JA (Bryson JA and Brereton J agreeing) said at [96]:

Section 62 provides that a matter referred for assessment under Part 3.4 may be referred again on one or more further occasions in accordance with the Part. This provision is relevant in the present case because of what was said of previous version of s 62 in Motor Accidents Authority of NSW v Mills (2010) 78 NSWLR 125; [2010] NSWCA 82. In that case a judge, who was assessing damages, was satisfied that the accident caused the plaintiff’s back injury. The trial judge purported to refer the degree of permanent impairment to a medical assessor pursuant to s 62(1)(b). His Honour ordered that the question whether the back injury was caused by the accident be excluded from the re-assessment. The Authority was granted leave to appear on a summons it filed in the Court of Appeal seeking an order pursuant to s 69 of the Supreme Court Act that such exclusion be deleted from the order or that the trial judge’s direction be quashed as it was ultra vires.

When Motor Accidents Authority of NSW v Mills was decided, s 62 relevantly provided:

The Court (Giles JA, Tobias and Handley JJA agreeing) said at [74]:

Of further present relevance, the Court considered a supplementary submission made by Mr Mills, which was considered, and rejected, at [87]:

In the present case, the applicable section, s 60, refers to “medical dispute” which, as set out above, is defined as “disagreement or issue”. The difference between “matter” and “disagreement or issue” may be significant in some cases. However, it does not alter the proposition that what is to be referred by the Authority under s 60 is the “disagreement or issue” that has been referred to the Authority.

Section 63(1) provides:

Section 63 was considered in McKee v Allianz Australia Insurance Ltd (2008) 71 NSWLR 609; [2008] NSWCA 163 where the question arose whether a review panel was entitled to review the whole of a medical assessment referred to it or was limited to the grounds particularised in the application for review. The majority (Allsop P, Giles JA agreeing) considered that there was no such restriction. Allsop P said:

This passage tends to suggest that the majority considered that the dispute or “matter” ought not be confined in any particular way, since the review was a review of an assessment following the referral of a dispute by one of the parties for assessment. This reasoning is consistent with the insurer’s proposition that the Authority had no right to interfere with the parameters of the dispute referred to it.

Section 65 of the Act relevantly provides:

Section 44(1)(d) of the Act provides that the Authority may issue guidelines with respect to “the procedures for the referral of disputes for assessment or review of assessments, and the procedure for assessment and review of assessments, under Part 3.4.” In Ali v AAI Ltd [2016] NSWCA 110; (2016) 75 MVR 502, Leeming JA said, obiter, that Guidelines are not delegated legislation and, accordingly, they do not bind the parties or the assessors of their own force: [85]. His Honour also said at [87]:

The Guidelines relevantly provide:

It was common ground that the Guidelines could not be used to interpret the Act and cannot provide a gloss on the statutory provisions: see McKee v Allianz Australia Insurance Ltd at [6] (Allsop P). Mr Robinson accepted that the Guidelines constituted one way of the Authority complying with its obligation to refer a medical dispute to an assessor under s 60(2). Ms Allars contended that they were relevant as a policy document and were, as such, a mandatory relevant consideration in the Proper Officer’s decision whether, and what, to refer for assessment: Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577. The Proper Officer is, relevantly, a member of staff of the Authority who is designated as such. The Proper Officer has an express statutory role under s 62(1B). There is no equivalent reference in s 60. Nonetheless there are references to the Proper Officer in correspondence. Nothing turns on this since it is common ground since it is the Authority which is obliged to refer the dispute under s 60(2).

Although the insurer’s claim for relief in this Court is no more complicated than set out above, it is necessary to give some context to the dispute by reciting relevant facts, which are summarised below.

It is common ground that the relevant form for a party which wishes to have a treatment dispute referred for assessment is MAS (Medical Assessment Service) Form 1A, which expressly refers to ss 60(1), 58(1)(a) and 58(1)(b) and indicates on its face that it has been approved by the Authority in accordance with clause 8.1 of the Guidelines.

On 26 May 2017 the insurer lodged a Form 1A (see the heading above Guideline 8.2 above) entitled “Application for Assessment of a Treatment Dispute by the Medical Assessment Service” (the First Application). The First Application included several pages headed “Dispute Information”, some of which indicated that they related to past treatment and some of which indicated that they related to proposed future treatment. For example, one such page, which related to proposed future treatment indicated that the type of treatment in dispute is “psychological counselling”. The details listed for that dispute are “0-6 sessions CBT [cognitive behavioural therapy] counselling”. The insurer attached its submissions to the Form 1A. Under the heading “Dispute” the insurer said:

Mr Robinson explained that the reason for the range of “0-6” being specified was that it ensured, not only that the assessor would have to decide whether the claimant reasonably required such sessions as a result of the accident but also that the assessor would be obliged to include the determination in the certificate, which would therefore be conclusive evidence. If the dispute was merely about whether 6 sessions were required, the certificate could merely state either that 6 were or were not required. Even if the assessor said in the reasons that 4 sessions were required, this would not be conclusive unless it was in the certificate: Pham v Shui at [96].

On 24 July 2017 the claimant filed a reply using the MAS Form 1R in which she set out and attached documents on which she relied, together with her submissions in response, in which she set out her claims for past and future treatment.

On 31 July 2017 the Authority wrote to the parties and said:

By letter dated 7 August 2017 the Proper Officer responded to the parties in part as follows:

By letter dated 17 August 2017 the insurer responded by confirming its position, based on Dr Lim’s assessment, that any treatment and care beyond the first 12 weeks post-accident was not reasonable or necessary and was not causally related to the injury sustained in the accident.

On 17 August 2017, the insurer lodged another Form 1A (the Second Application). It annexed various pages, as before, which identified past treatment or proposed treatment which was disputed. Once again, it expressed the dispute in terms of a range. For example, proposed future treatment of physiotherapy was expressed as “0-1 consultations per fortnight with physiotherapist from the date of the assessment, ongoing for the claimant’s life expectancy.” The insurer’s submissions which accompanied the Second Application confirmed that, in light of further material from the claimant, it had amended its application and wanted the Second Application to be referred.

The following day the Authority wrote to the parties in the following terms:

Mr Robinson contended that this facsimile dated 18 August 2017 was an impermissible attempt by the Authority to interrogate the parties and constituted a breach of the Authority’s duty pursuant to s 60(2) of the Act to refer the medical dispute to a medical assessor or assessors. His submissions are set out in more detail below.

On 18 September 2017 the insurer wrote to the Authority and confirmed that it had paid for certain items but that it disputed the balance of the claim “in its entirety”. It concluded the letter as follows:

The insurer attached a further application (the Third Application), which, in substance, identified on separate pages (as above) the claims made by the claimant and expressed the “dispute” in terms of a range from zero to the amount (in terms of time, sessions or doses of medication) which the claimant claimed. The insurer confirmed that it relied on its submissions dated 17 August 2017, which accompanied the Second Application.

Of present relevance, the Third Application contained the following treatments in dispute:

In respect of each treatment dispute, the insurer identified as the reason for not paying the treatment: “not related to injuries caused by the accident” and “not reasonable and necessary”. The insurer contended that none of these four items have, to date, been referred, in breach of the Authority’s duty pursuant to s 60(2).

On 22 September 2017 the Authority wrote to the parties to inform them that the dispute was ready for assessment. The letter contained 48 questions which were said to be in dispute. There were, in effect, 24 pairs of questions, the first of which asked whether the treatment was reasonably necessary having regard to the injury sustained in the accident and the second of which asked whether the treatment was causally related to the injury sustained in the accident. For example, with respect to consultations with a psychiatrist, the Authority posed these questions:

On 5 October 2017 the Authority wrote to the parties and informed them that MAS would assess their dispute. It annexed copies of the letters of referral which it had written to the two assessors, Dr Cameron and Dr Parmegiani.

On 20 November 2017 the insurer wrote to the Authority and requested amendments to the questions which had been referred to include the ranges which had been in its applications referred to above “to ensure that the referral reflects the dispute between the parties and the production of a meaningful certificate.” For example, it requested that instead of asking Dr Cameron whether 6 consultations with a GP were required, the Authority ask whether “1-6” consultations with a GP were required, as the insurer had indicated in its various applications.

On 21 November 2017 the Authority wrote to the claimant seeking her view on what the insurer had proposed, to which the claimant’s solicitors responded that they would not consent. On 24 November 2017 the Authority wrote to the parties in the following terms:

Mr Robinson submitted that the letter of 24 November 2017 indicated that the Authority was refusing to refer the medical dispute which the insurer had referred to it under s 60(1).

The insurer responded to the Authority on 24 November 2017 and said there was a dispute about whether treatment was required at all and, if so, how much. The insurer contended that the range (such as 0-6) ought be referred to the assessors. The claimant, who was invited to respond to the insurer’s proposal, did not consent to the insurer’s proposal.

On 28 November 2017 the Authority responded as follows:

Mr Robinson submitted, for reasons given in more detail below, that the approach taken by the Authority in the letter set out above was “entirely the wrong approach in law”, which would warrant an order being made under s 65 or s 69 of the Supreme Court Act to require the Authority to refer the balance of the dispute.

On 8 December 2017 the insurer wrote to the Authority setting out its arguments in support of its contention that the Authority had failed to discharge its statutory duty. These largely mirror the submissions the insurer has made in support of its claim for relief in this Court. It is sufficient to set out the insurer’s argument about the numerical range, as follows:

On 18 December 2017 the Authority wrote to the parties confirming that the decision on the referral would not be changed.

Later that day, the insurer wrote to the Authority to seek a signed form of the decision on 18 December 2017 (which had been provided by facsimile) and contended that it was “infected by errors of law”. The insurer specifically reserved its right to seek “rectification in the Administrative Division”, which I take to be a reference to a claim for relief by way of judicial review in this Court.

Subsequently Drs Cameron and Parmegiani conducted an assessment of the matters referred to them by the Authority. They issued certificates on 27 and 30 January 2018 respectively. A further certificate was issued by Assessor Castle-Burton on 9 April 2018, which related to the assessment for domestic assistance. The insurer has sought review pursuant to s 63 of the Act of the certificates issued by Dr Parmegiani and Assessor Castle-Burton.

Mr Robinson submitted that no extension of time was required as the summons was filed on 16 March 2018, which was within three months of the operative decision or act, being the decision or referral on 18 December 2017: Uniform Civil Procedure Rules 2005 (NSW) (UCPR), r 59.10(1). Part 59, “Judicial Review Proceedings” applies to proceedings under ss 65 and 69 of the Supreme Court Act: UCPR 59.1(1)(a).

Ms Allars contended that the operative decision was made on 22 September 2017 and, accordingly, an extension of time was required. She contended that the insurer had been guilty of considerable delay, not least because, at least by 18 December 2017, it had formulated the case it would bring in this Court, as appears from its letter of that date to the Authority. Ms Allars contended that the insurer had little, if anything, to gain from the proceedings since “it remained open to the medical assessors to deal with specific claims made by [the claimant] and also to indicate what was reasonable and necessary within the range below the specific amounts claimed.” This contention does not take account of the important distinction between what is certified in the certificate (which is conclusive evidence) and the reasons which form part of the certificate (which, though evidence, are not conclusive).

Ms Allars also submitted that the claimant would be prejudiced if an extension were granted since, in the meantime, on 30 January 2018, Dr Parmegiani had issued a certificate which was favourable to the claimant in respect of the matters referred to him. Ms Allars contended that the insurer was guilty of “acquiescence” by refraining from commencing proceedings until after two of the medical assessors had issued certificates.

I am not persuaded that an extension of time is necessarily required. While the Authority indicated that it would refer certain matters for medical assessment prior to 18 December 2017, the matter was still the subject of correspondence between the parties and the Authority up until that time. It would, in my view, have been open to the Authority to consider the insurer’s submissions and refer the whole of the insurer’s medical dispute for assessment, had it been persuaded by the insurer’s submissions. This Court ought not, by taking too pedantic a view of when a “decision” is made or action is taken, create an imperative to commence proceedings before the issue has been sufficiently ventilated with the Authority. If the insurer had commenced proceedings shortly after 22 September 2017, it might have been criticised for not attempting to resolve the matter otherwise than by an application for judicial review.

If an extension of time is required, I would grant such an extension for the reasons set out above. I am not persuaded that there is any prejudice to the claimant. The insurer does not seek to challenge, by judicial review, the certificates issued in respect of those parts of the medical dispute which have already been referred to assessors; it merely seeks to have the balance of the dispute referred. The insurer has persistently sought to have the whole of its dispute referred to a medical assessor. At no time has it indicated that it does not press for the balance of its medical dispute to be referred.

Further, there is a question whether what is at stake is a “decision” in any event, since the principal complaint made by the insurer is that the Authority failed to discharge its statutory duty. There is a degree of artificiality in construing any alleged failure to refer the whole of a medical dispute for assessment as amounting to a “decision”, particularly where the existence of a medical dispute is not, as decided by Scott, a “jurisdictional fact”. While the summons, in all its iterations, including the further amended summons, seeks relief under s 69 in the nature of certiorari, it became apparent in the course of oral argument, that the insurer’s preferred basis for relief (which was also sought in the further amended summons) was mandamus, whether so-called “statutory mandamus” under s 65 or relief in the nature of mandamus, as claimed in prayer 5 of the further amended summons. Section 65 provides that the Court may order any person to fulfil any duty in the fulfilment of which the person seeking the order is personally interested. I consider the claim for an order in the nature of mandamus, whether under s 65 or s 69, to be a more appropriate remedy in the circumstances of this case. Section 65 does not require jurisdictional error (although I consider there to be one in the present case); the insurer is plainly “personally interested”; and s 60 imposes a duty on the Authority.

Ms Allars contended that the ambit of the medical dispute which was required to be referred under s 60(2) was a factual matter (although not a matter of jurisdictional fact) for the Authority to determine. She submitted that as long as the determination as to what ought be referred was conducted in good faith, there was no basis to challenge it, except if it involved a “decision”. She submitted that any such decision could only be challenged by reference to the principles set out in Minister for Immigration and Citizenship v Li (2013) 249 CLR 332; [2013] HCA 18 at [76] (Hayne, Kiefel and Bell JJ). Ms Allars accused the plaintiff of trying to “dress up” what was essentially a factual matter for the Authority to determine, whether there was a medical dispute and what its limits were, under the guise of an alleged statutory duty. She submitted that it was not for a party unilaterally to determine what the medical dispute to be referred was, since that was, pre-eminently, a matter for the Authority. I am not persuaded that this is the appropriate analysis.

In my view, the insurer was entitled, under s 60 of the Act, to have the medical dispute which it referred to the Authority referred to the assessors and not merely an expurgated version of it which had been filleted and edited by the Authority in consultation with the claimant. The reference in s 60(2) to “the medical dispute”, is a reference to the medical dispute which a party (or court or a claims assessor) has referred to the Authority. I regard it as of importance that the same provision applies to the referral of a dispute by a party or a court or a claims assessor. It could hardly have been the intention of Parliament to confer a power on the Authority to redraft the terms of a medical dispute referred by a court of claims assessor, as opposed to ascertaining that it corresponded with the definition of “medical dispute” in the Act (cf. Motor Accidents Authority v Mills, where the purported excision of the causation question from the dispute about permanent impairment brought it outside the definition in s 58(1)(d)).

I accept Mr Robinson’s submissions that “this micromanaging and dictation of the nature and scope of a medical dispute is impermissible.” The approach taken by the Authority has deprived the insurer of having its medical dispute result in a certificate which provided conclusive evidence as to what, if any, treatment was required within the range which included at the high end, what the claimant was claiming and, at the low end, what the insurer contended to be appropriate (zero). The Authority’s disregard of the express terms of s 60(2) has permitted the Authority (with the assistance of the claimant) to create a situation whereby the medical assessors are entitled to certify, for example, either zero consultations, or ten consultations, but nothing in between and any reference to any other number in the assessors’ reasons can effectively be disregarded because, although it is evidence, it is not conclusive evidence. Such tactics ought not be permitted to compromise the right of a party to have its medical dispute referred to a medical assessor.

The insurer’s medical dispute comprehended the questions whether, for example, any consultations of a particular variety were required and, if so, how many between the number claimed by the claimant and zero. The claimant’s version of the dispute (which the Authority adopted) was whether she was entitled to the number of consultations she claimed or zero. Plainly the insurer’s dispute was wider than the claimant’s dispute. By referring only the claimant’s version (in the example above), the Authority refused to refer part of the insurer’s medical dispute. What Ward JA said of the dispute in Scott, that “the debate as to whether there was in fact a dispute as to the claim . . . bordered on the farcical”, could be said of the contention that the matters comprehended in the insurer’s medical dispute did not correspond to the “medical dispute” which the Authority was obliged to refer to a medical assessor.

Despite the insurer’s dispute (which was plainly a medical dispute) being referred to the Authority, and the parameters of the dispute being clearly defined, the Authority erroneously considered itself to be entitled to frame the dispute which it referred to a medical assessor by reference to the claimant’s particularisation of it.

The Authority does not have a discretion whether to refer a medical dispute, it has a duty to do so. While it is, as Basten JA said in Scott, for the Authority to determine whether what has been referred to it is a “medical dispute”, it has no discretion, once the general character of the dispute has been identified, to refuse to refer whole, or part, of it. Nor, as Ward JA said in Scott is it for the Authority to determine whether the dispute is “genuine” or otherwise. The ambit of the medical dispute to be referred is determined by the ambit of the dispute referred to the Authority under s 60(1). There is no need for the other party to agree to the ambit, which is determined by the referring party. I am satisfied that the Authority, in failing to refer the whole of the insurer’s medical dispute, has committed a jurisdictional error in that it has, in misconceiving its statutory duty, failed to discharge it: Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323; [2001] HCA 30 at [41] (Gaudron J).

One consequence of the Authority’s failure to refer the insurer’s medical dispute was that the insurer is subject to the prospect that, if the assessor considers a lesser number of consultations to be required than the number claimed by the applicant, the insurer will, at best, have a finding to that effect in the reasons. Thus, the insurer will be deprived of conclusive evidence of the number reasonably required, such would have been provided by certification, had its medical dispute been referred. I am satisfied that the Authority has failed to discharge the duty imposed on it by s 60(2) of the Act in that it has not referred the whole medical dispute which the insurer referred to it in its Third Application.

I note for completeness that compliance with the Guidelines does not absolve the Authority of non-compliance with the Act. It is not necessary to express a view on whether adherence to the Guidelines has resulted in non-compliance with the Act in the present case.

Not every failure to comply with a statutory duty will warrant the grant of relief. Whether it is appropriate to grant relief will depend in part on the consequences for the aggrieved party of the failure. The question was considered in Dominice v Allianz Australia Insurance Ltd [2017] NSWCA 171; (2017) 81 MVR 249 where a claimant failed in an application to challenge the decision of the Proper Officer to refer an assessment for review pursuant to s 63. Basten JA emphasised that the question was to be determined by reference to the effect on the legal rights of the party of the decision or action. His Honour said at [7]:

Another relevant factor in deciding whether relief ought be granted is whether the duty is amenable to mandamus, or an order of that kind. In some cases a statutory duty is expressed in such broad language that it is not appropriate to order that it be exercised: see, for example, Weaven v Department of Justice [2012] VSC 582 at [6]-[12] (Macaulay J). In the present case the Authority (through its Proper Officer) has, on the basis of a legal misunderstanding as to the scope of its powers, refused to refer the whole of a medical dispute. The effect of that refusal has been to deprive the insurer of the right to have its medical dispute, that is, the dispute defined in accordance with its Third Application, determined. Although the Authority has referred part of that medical dispute for assessment under s 60(2), there remains another part which has not yet been referred and which the Authority has refused, despite detailed submissions from the insurer, to refer. This is no mere procedural matter. It is not to the point that there is no allegation of bad faith on the part of the Proper Officer or the Authority itself. Although it might be possible to construe the Proper Officer’s failure as a decision, which is legally unreasonable as it is based on a misapprehension of the content of a statutory duty, this is not, as I have said above, my preferred analysis.

I am satisfied that, in these circumstances, it is appropriate to grant relief to the insurer, who is plainly an applicant of sufficient standing who has, in my view, proved that the Authority has failed to perform a duty of a public nature, being the statutory duty in s 60(2) of the Act. As the correspondence set out above indicates, the Authority has refused to comply with the insurer’s specific demand that the duty be performed.

I have considered whether it is necessary or appropriate to grant relief in the nature of certiorari in addition to declaratory relief and relief in the nature of mandamus. For reasons given above, I do not consider it to be necessary to grant such relief since I do not propose to quash any part of the referral that was actually made by the Authority, which has resulted in assessments, the validity of which is not challenged on judicial review. Nor am I satisfied that the Authority’s conduct, which amounts to a refusal, ought properly be construed as a “decision” which would be amenable to relief in the nature of certiorari. In these circumstances, it is unnecessary to identify what constitutes “the record” for the purposes of determining whether there is an error of law on the face of the record within the meaning of s 69(3) of the Supreme Court Act.

The Authority’s conduct amounts to a refusal or failure to exercise jurisdiction, or power, which the Act requires it to exercise by referring the insurer’s medical dispute to a medical assessor, or assessors and thus does not require an order for certiorari: Public Service Association of South Australia Incorporated v Industrial Relations Commission of South Australia (2012) 249 CLR 398; [2012] HCA 25 at [57] (Gummow, Hayne, Crennan, Kiefel and Bell JJ).

In addition to making a declaration, I am disposed to make an order which has the effect of requiring the Authority to perform its statutory duty under s 60(2) in respect of the part of the medical dispute contained in the insurer’s Third Application that has not already been referred. The form of the order is a matter of some difficulty. Although I have the power to order that an undischarged statutory duty be discharged, I am not entitled to prescribe how the duty ought be discharged. As Hargrave J said in White v Lacey [2012] VSC 175 at [13]: “[t]he appropriate relief is to order a re-exercise of the public duty; not to compel the manner of performance of that duty.” Thus, while I can make an order to the effect set out above, I could not specify, for example, that any particular part of the medical dispute be referred to any particular medical assessor, such a matter being a matter within the purview of the administrative responsibilities of the Authority.

The insurer has provided a bundle of documents, which were marked for identification MFI1. It contended that these documents contain the parts of the Third Application which were not referred. The benefit of crafting an order by reference to MFI1 is that the Authority will be appraised of precisely what it must refer for medical assessment and could simply refer pages 1-5 of MFI1 to the appropriately qualified medical assessors. This would accord with the course which appears to have been adopted by the Authority in Scott where the terms of the dispute from the referring party’s (the insurer’s) application for referral were adopted in terms by the Authority when it made the referral.

Both Mr Robinson and Ms Allars confirmed their readiness to make submissions on draft orders or to assist with the crafting of orders to give effect to these reasons. In these circumstances I propose to make a declaration at the conclusion of these reasons but merely to indicate, in broad form, what I have in mind by way of a mandatory order so that any submissions from the parties can be directed to the draft. However, I remain open to persuasion that the proposed order should be crafted in a different way. In my view, the proposed order could be made under either s 65 or s 69, although s 65 might be a wider power in the context of a case such as the present: see Dickinson v Perrignon [1973] 1 NSWLR 72 at 83 (Street CJ in Eq).

Having considered the draft orders proposed in the further amended summons, I am not presently persuaded that the orders sought in prayers 1, 2, 3 or 4 are appropriate since they require setting aside, or quashing, certain “decisions” of the Authority or are premised on a “decision” being the relevant juridical act. I consider prayer 5, which seeks statutory mandamus, to be more appropriate although I am not presently persuaded that an order ought be made in precisely those terms.

For the purpose of providing the parties with an opportunity to be heard on the form of orders to give effect to these reasons, I propose, by way of indication only, the following order, the power for which derives from s 65 of the Supreme Court Act:

As neither party contended that costs ought not follow the event, I propose to order the first defendant to pay the plaintiff’s costs of the proceedings.

For the reasons set out above, I make the following orders: