Wood v Insurance Australia Group Limited trading as NRMA Insurance

1. [1]

   By a summons filed on 13 December 2021, the plaintiff, Joshua Wood, sought judicial review of the decision made on 20 September 2021 by the delegate of the President of the Personal Injury Commission of New South Wales (PIC), the second defendant, under s 63(2B) of the Motor Accidents Compensation Act 1999 (NSW) (MAC Act).

2. [2]

   The decision of which Mr Wood sought judicial review related to his claim arising out of injuries he allegedly suffered as a result of a motor vehicle accident that occurred on 10 June 2015 at Kotara in New South Wales. The first defendant, Insurance Australia Group Limited trading as NRMA Insurance, was the compulsory third party insurer in respect of the vehicle at fault in that accident.

3. [3]

   It is significant to note at this point that, by the time of the final hearing in this matter on 24 August 2022, both defendants had filed submitting appearances, except as to costs. Accordingly, there was no opposition to the making of the orders sought by the plaintiff. The procedural history of how this came about is as follows.

Relevant procedural history

1. [4]

   On 9 March 2022, the plaintiff filed an amended summons adding further grounds of review and identifying the second defendant as the President of the PIC, not his delegate.

2. [5]

   On 10 March 2022, the second defendant filed a submitting appearance, save as to costs.

3. [6]

   On 19 April 2022, NRMA filed a response to the amended summons setting out the basis on which it opposed the plaintiff’s application for judicial review.

4. [7]

   On 6 June 2022, the plaintiff filed a second amended summons in which the grounds of review were further refined.

5. [8]

   On 29 July 2022, NRMA filed its response to the second amended summons opposing the granting of the relief sought by the plaintiff.

6. [9]

   On 4 August 2022, the matter came on for final hearing before me after the parties had taken appropriate preparatory steps . On that occasion, Mr Hart of counsel appeared for the plaintiff and Ms Dinka of counsel appeared for NRMA. During that hearing, it became apparent that it would be helpful to understand with more clarity the content of the material that was before the delegate of the second defendant when she made the decision which is challenged in the present case. To permit the parties to reach agreement, if possible, on what was relevantly before the delegate or to put on further evidence, if necessary, the hearing of the matter was adjourned. The orders made on 4 August 2022 were:

7. [10]

   On 22 August 2022, despite its prior opposition to the plaintiff’s application for judicial review, NRMA filed a submitting appearance which stated:

8. [11]

   On 24 August 2022, at the directions hearing, Mr Hart again appeared for the plaintiff and Mr Cass, solicitor, appeared for NRMA as a courtesy to the Court and noted that his client had recently filed a submitting appearance except as to costs. Thus, although initially there was a contradictor, by 24 August 2022, there was no opposition to the orders sought being made.

9. [12]

   In the circumstances, it appeared to me that the proper approach was to consider the plaintiff’s application, in light of the evidence adduced and the submissions made orally and in writing, and to take into account the absence of any opposition when determining whether or not to grant any relief.

Background

1. [13]

   On 10 June 2015, Mr Wood was involved in a motor accident as a result of which he claimed that he suffered injuries to his lumbar spine and right hip as well as psychiatric or psychological injury.

2. [14]

   On 5 February 2016, the plaintiff served his Personal Injury Claim Form.

3. [15]

   On 5 April 2018, Mr Wood underwent spinal surgery by Dr Sears involving a L5/S1 microdiscectomy and right S1 rhizolysis.

4. [16]

   A disagreement arose between Mr Wood and NRMA about whether the treatment provided to Mr Wood by Dr Sears was reasonable and necessary in the circumstances and whether such treatment related to the injury caused by the motor accident. By virtue of ss 57 and 58 of the MAC Act, these were thus “medical disputes” to which Pt 3.4 of the MAC Act applied. Those disputes were eventually referred to Medical Assessor Dr Frank Machart, under s 60 of the MAC Act.

5. [17]

   On 13 February 2020, Dr Machart assessed Mr Wood.

6. [18]

   On 6 May 2020, Dr Machart issued two certificates under s 61(1) of the MAC Act as follows:

7. [19]

   It appeared from all the circumstances, and I accepted, that although the wording of each of those certificates was infelicitous, it was undoubtedly intended to convey Dr Machart’s assessments that the right L5/S1 microdiscectomy and right S1 rhizolysis related to the injuries caused by the motor accident and were reasonable and necessary in the circumstances.

8. [20]

   By virtue of s 61(2) of the MAC Act, Dr Machart’s certificates are “conclusive evidence as to the matters certified … in any assessment by the [PIC] in respect of the claim concerned”. Furthermore, as required by s 61(9) of the MAC Act, Dr Machart set out in his certificates the reasons for his findings “as to any matter certified in the certificate in respect of which the certificate is conclusive evidence”.

9. [21]

   Dr Machart’s reasons included the following:

10. [22]

    As to his findings on clinical examination, Dr Machart said:

11. [23]

    Dr Machart then set out a review of the documentation submitted to him. The documentation referred to in his review was not, however, dealt with in date order in Dr Machart’s reasons. In date order, the document review included the following:

12. [24]

    After reviewing that documentation, Dr Machart included in his reasons for his certificates the following under the heading “Comment”:

13. [25]

    In section 6 of his reasons under the heading “Determinations”, Dr Machart said:

14. [26]

    In June 2020, NRMA applied under s 63(1) of the MAC Act for Dr Machart’s medical assessment to be referred to a review panel for review. At this time, s 63(3) provided that such a referral should be made “only if the proper officer is satisfied that there is reasonable cause to suspect that the medical assessment was incorrect in a material respect having regard to the particulars set out in the application”.

15. [27]

    On 6 August 2020, the proper officer dismissed NRMA’s review application under s 63(3). Accordingly, Dr Machart’s certificates remained “conclusive evidence as to the matters certified … in any assessment … in respect of the claim concerned”.

16. [28]

    After 6 August 2020, Mr Wood’s claim proceeded to claims assessment under the MAC Act.

17. [29]

    On 9 September 2020 the sixth preliminary conference in the General Assessment stream was conducted by way of telephone conference with the parties’ representatives by Claims Assessor Foggo. The claims assessor’s report of that preliminary conference included:

18. [30]

    The plaintiff contended and NRMA did not dispute, and I accepted, that by the time of the sixth preliminary conference and thereafter:

    1. (1)

       there was no disagreement between the plaintiff and NRMA that as a result of the motor accident Mr Wood suffered a spinal injury by way of initial disruption of the disc capsule, which was not static and over time caused a disc protrusion on the right at L5/S1 leading to various symptoms;

    2. (2)

       there was no disagreement that the microdiscectomy at L5/S1 and right S1 rhizolysis undertaken on 5 April 2018 were causally related to the spinal injury sustained in the subject motor accident;

    3. (3)

       there was no disagreement that the microdiscectomy at L5/S1 and right S1 rhizolysis were reasonable and necessary treatment; and

    4. (4)

       the only remaining medical dispute was whether the degree of permanent impairment as a result of the injury caused by the motor accident was greater than 10%.

19. [31]

    Thus, the only medical dispute that was required to be referred to a medical assessor for the purposes of the assessment of Mr Wood’s claim by the PIC was whether the degree of permanent impairment as a result of Mr Wood’s injury caused by the motor accident was greater than 10%. Furthermore, since there was no disagreement between Mr Wood and NRMA, by this time, as to causation of his spinal injury in the motor vehicle accident, the issue of causation of that injury was not referred to Medical Assessor Dr Christopher Harrington for assessment. In relation to the spinal injury, therefore, Dr Harrington was only required to assess the degree of permanent impairment as a result of that injury and to determine whether it was greater than 10%. This was recognised by Medical Assessor Harrington in his certificate dated 11 June 2021 where the dispute which had been referred to him for assessment was acknowledged in numbered paragraph 1 of his reasons to be only “the degree of permanent impairment under section 58(1)(d) of the Act”.

20. [32]

    On 11 June 2021, Dr Harrington issued a certificate under s 61(1) of the MAC Act which certified as followed:

21. [33]

    Dr Harrington’s reasons, which were incorporated into the certificate, included the following:

22. [34]

    On 7 July 2021, Mr Wood applied under s 63(1) of the MAC Act to the President to refer Dr Harrington’s medical assessment to a review panel for review.

23. [35]

    Mr Wood’s grounds for contending that there was reasonable cause to suspect that the medical assessment of Dr Harrington was incorrect in a material respect can be summarised as follows:

    1. (1)

       The certified findings of Dr Machart were of continuing effect and there was, in effect, no issue or an issue estoppel in relation to whether the subject injuries had been caused by the subject motor accident;

    2. (2)

       Dr Harrington failed to consider relevant evidence and provide adequate reasons, and

    3. (3)

       Dr Harrington fell into jurisdictional error because he “impermissibly treated the absence of contemporaneous medical records as determinative” and in that regard there was an error in the history.

24. [36]

    In accordance with s 63(2B) of the MAC Act, the President was required to arrange for the application to be referred to a review panel “but only if the President is satisfied that there is reasonable cause to suspect that the medical assessment was incorrect in a material respect having regard to the particulars set out in the application”.

25. [37]

    On 20 September 2021, Ms Tami O’Carroll, the delegate of the President of the PIC, determined that she was:

26. [38]

    More specifically, the President’s delegate considered each of the grounds in some detail. As to the first ground that there was reasonable cause to suspect that the medical assessment was incorrect because Dr Machart’s certified findings were of continuing effect or any issue estoppel arose, the President’s delegate’s reasoning included the following:

27. [39]

    As to the second ground that there was reasonable cause to suspect that the medical assessment was incorrect because Dr Harrington failed to consider relevant evidence and provide adequate reasons, the President’s delegate said:

28. [40]

    As to the third ground that there was reasonable cause to suspect that the medical assessment was incorrect because Dr Harrington impermissibly treated the absence of contemporaneous medical records as determinative and there was an error in the history, the President’s delegate’s reasons included the following:

Judicial review application

1. [41]

   As noted above, the plaintiff has sought judicial review of the decision made on 20 September 2021 by the delegate of the President. The prayers for relief in the second amended summons included:

2. [42]

   As was also noted above, the granting of such relief, except as to costs, was not opposed by any defendant. In these circumstances, consideration of the application can be dealt with more shortly than might otherwise have been the case.

3. [43]

   The grounds relied on by the plaintiff were somewhat discursive but included, inter alia:

4. [44]

   These grounds are to be considered in light of the relevant statutory provisions at the relevant times concerning medical assessments under Pt 3.4 of the MAC Act, which comprises ss 57 to 64.

5. [45]

   Section 58(1) provided that Pt 3.4 applies to “a disagreement between a claimant and an insurer” about the following “medical assessment matters”:

6. [46]

   By virtue of s 58(2), Pt 3.4 also relevantly applied to “any issue arising about such a [medical assessment] matter … in connection with the assessment of a claim by the [PIC]”, as in the present case.

7. [47]

   “Medical dispute” is defined in s 57 as meaning “a disagreement or issue to which this Part applies”. The word “issue” in s 57, given the relevant text of that section and its use in s 58 and the context of Pt 3.4 as a whole, naturally refers to some aspect of a medical assessment matter that is in dispute or in issue, in the sense that there is no agreement about that aspect and it is something that remains to be determined.

8. [48]

   If, therefore, a claimant and an insurer agreed about the whole or part of a medical assessment matter, there is in that regard no matter or no issue to which Pt 3.4 would apply. This is confirmed by the terms of ss 60, 61 and 63 of the MAC Act. Section 60 established that it was not the medical assessment matter which was referred for medical assessment but the “medical dispute”. Section 60 relevantly contained the following:

9. [49]

   Section 61 deals with the status of medical assessments and includes the following provisions:

10. [50]

    The wording of s 61(1) is a little confusing as it describes, consistently with s 60(1), the thing which is referred for assessment as a “medical dispute” but it also states that a certificate is to be given “as to the matters [rather than the medical dispute] referred for assessment”. The expression “medical dispute” is defined in s 57 as meaning “a disagreement or issue to which this Part applies” and s 58(1) describes the relevant types of “disagreement” and s 58(2) describes the relevant types of “issue”. Taking into account this context, the expression “the matters referred for assessment” in s 61(1) should be construed as referring to the particular disagreement about, or issue arising about, one of the matters set out in s 58(1)(a), (b) or (d), which constitutes the relevant medical dispute referred for assessment under s 60(1). In other words, what is referred for assessment and what is required under s 61(1) to be the subject of a certificate is not the general matter of the type referred to in s 58(1)(a), (b) or (d) but rather is the specific disagreement or issue concerning such a matter in the particular case. Accordingly, if there is no dispute between the parties as to whether certain injuries were caused by a motor accident but there is a dispute as to whether the degree of impairment as a result of those injuries is greater than 10%, the medical assessor is only required to give a certificate as to whether the degree of impairment is greater than 10% and not as to causation.

11. [51]

    Although there is no right of appeal from a medical assessment certificate given under s 61(1), s 63 establishes that a party to a medical dispute may seek a review of a medical assessment certificate in the following terms:

12. [52]

    The fact that the right to seek a review of a medical assessment is conferred by s 63(1) on a “party to a medical dispute” also serves to confirm that the subject matter of any medical assessment certificate is the “medical dispute”, that is that aspect of the matter of the type referred to in s 58(1)(a),(b) or (c) about which there is a disagreement or issue, not the whole matter as described in those paragraphs. This approach is consistent with that adopted by the Court of Appeal in Meeuwissen v Boden (2010) 78 NSWLR 143; [2010] NSWCA 253 (Meeuwissen) at [24] (Basten JA, Beazley JA and Sackville AJA agreeing) where the expression “all the matters with which the medical assessment is concerned” in s 63(3A) was construed as referring to “all of the matters in dispute” and “the whole of the matters in dispute”.

13. [53]

    By virtue of s 63(2), the only permitted ground of review is that the medical assessment was “incorrect in a material respect” but, if the President refers the assessment to a review panel under s 63(2B), s 63(3A) requires the review panel to make a new assessment of all the matters in dispute, not just to reassess that aspect of the medical assessment alleged to be incorrect.

14. [54]

    Section 63(2B) confers on the President a “gate keeper” function so that an application for review of a medical assessment is only to be referred to a review panel, to be dealt with in accordance with s 63(3A), “if the President is satisfied that there is reasonable cause to suspect that the medical assessment was incorrect in a material respect having regard to the particulars set out in the application”.

15. [55]

    Although it was President’s delegate who actually made the decision in this case, in considering this application for judicial review nothing turns on whether the decision was made by the President or his delegate. As a result, it is not necessary to differentiate between the President of the PIC and his delegate in these reasons and I shall generally only refer to the President or the decision maker and not to the President’s delegate in what follows.

16. [56]

    A number of general principles concerning the application of s 63(2B) have been established in Meeuwissen.

    1. (1)

       What must be “incorrect in a material respect” is “the medical assessment” not the certificate and, in addition, the subject matter of the medical assessment is the “medical dispute”: at [19].

    2. (2)

       To describe a medical assessment as “incorrect in a material respect” does not necessarily require that the certificate would, or might, have been different, absent the error: at [19].

    3. (3)

       The power conferred on the President is not discretionary, once the requisite state of satisfaction is achieved, the President “is to” arrange for the application to be referred: at [21].

    4. (4)

       The matter of which the President must be satisfied is not that the medical assessment was incorrect in a material respect, but only that “there is reasonable cause to suspect” that it was; such language is inconsistent with the President being expected, let alone required, to carry out an assessment or calculation, as opposed to identifying possible error: at [22].

17. [57]

    Relevantly for the present case, the parties to a “medical dispute” under the MAC Act are entitled to an assessment in respect of that dispute reached in accordance with a proper understanding of the statutory scheme and the facts: Meeuwissen at [23]. Where an important fact has been ignored, the medical assessment has not been properly undertaken and the statutory right subverted. Consequently, where there is reasonable cause to suspect that a significant or material error has been made, fairness suggests that the review should be allowed to proceed: Meeuwissen at [23].

18. [58]

    The condition in s 63(2B) which must be satisfied before a medical dispute can be referred to a review panel turns on the opinion or state of satisfaction of the President. Such an opinion is amenable to judicial review on conventional administrative law grounds: Insurance Australia Ltd v Marsh [2022] NSWCA 31; 99 MVR 1 at [14] (Basten JA) citing Leeming JA in AAI Ltd t/as AAMI v Chan [2021] NSWCA 19; 95 MVR 166 (Chan) and QBE Insurance (Australia) Ltd v Miller [2013] NSWCA 442; 67 MVR 322 (Miller).

19. [59]

    Since it is a matter for the President whether the required state of satisfaction has been reached and not one to be determined by this Court afresh, judicial review proceedings such as the present may be somewhat confined: Miller at [36]. It is sufficient for present purposes to observe that the available grounds of review in this type of case include:

    1. (1)

       that the determination was irrational, illogical and not based on findings or inferences of fact supported by logical grounds: Miller at [36] citing Minister for Immigration and Multicultural and Indigenous Affairs v SGLB [2004] HCA 32; 78 ALJR 992 (SGLB) at [38] (Gummow and Hayne JJ);

    2. (2)

       the opinion of the President was reached by taking into account irrelevant considerations or by otherwise misconstruing the terms of the relevant legislation and, consequently, the required opinion was not actually formed: Miller at [36] citing The King v Connell; Ex parte Hetton Bellbird Collieries Ltd (1944) 69 CLR 407 at 432; [1944] HCA 42; (Latham CJ); and

    3. (3)

       other forms of jurisdictional error.

20. [60]

    Leeming JA held, in a similar context, in Chan at [28]:

21. [61]

    Turning to the grounds of review relied upon by the plaintiff, the third ground raised, in substance, the issue of whether the decision to refuse to refer the medical assessment to a review panel was the result of the decision maker misunderstanding the gatekeeper function conferred by s 63(2B) and making a decision which was legally unreasonable. The tenth ground of review raised a related issue of whether the decision maker, insofar as she decided that Dr Harrington’s medical assessment required him to consider whether the claimant’s diagnosed sciatica and subsequent treatment in April 2018 were caused by the accident, failed to observe that no substantive dispute inter partes as to causation was before Dr Harrington and thus misconceived the task she was required to perform and addressed the wrong question.

22. [62]

    At the sixth preliminary conference before Claims Assessor Foggo, both Mr Wood and NRMA proceeded on the basis that Dr Machart’s certificate would not be challenged and the conclusions reached by Dr Machart were no longer in dispute. Consequently, after that conference and as noted above:

    1. (1)

       there was no disagreement between the plaintiff and NRMA that as a result of the motor accident Mr Wood suffered a spinal injury by way of initial disruption of the disc capsule, which was not static and over time caused a disc protrusion on the right at L5/S1 leading to various symptoms including sciatica and back pain;

    2. (2)

       there was no disagreement that the microdiscectomy at L5/S1 and right S1 rhizolysis undertaken on 5 April 2018 were causally related to the spinal injury sustained in the subject motor accident;

    3. (3)

       there was no disagreement that the microdiscectomy at L5/S1 and right S1 rhizolysis were reasonable and necessary treatment; and

    4. (4)

       the only remaining relevant medical dispute was whether the degree of permanent impairment as a result of that spinal injury was greater than 10%.

23. [63]

    It followed that the “medical dispute” referred to Dr Harrington was only whether the degree of permanent impairment, as a result of the spinal injury which was accepted as having been caused by the motor accident and which required treatment by way of the microdiscectomy at L5/S1 and right S1 rhizolysis, was greater than 10%. Dr Harrington’s certificate did not, however, deal with that injury but only other soft tissue injury to the lumbar spine and right hip. The certificate did not deal with the correct injury because Dr Harrington formed the view that the injury which required treatment by way of the microdiscectomy at L5/S1 and right S1 rhizolysis was not caused by the motor accident, even though there was no dispute or issue between the parties as to that fact, as previously certified by Dr Machart.

24. [64]

    These causes to suspect that Dr Harrington’s medical assessment was incorrect in a material respect were, in substance and effect, raised in the grounds relied on by Mr Wood in his application for review. The decision maker who considered the application for review rejected these grounds. However, her conclusion that these grounds provided no basis for being satisfied that there was reasonable cause to suspect that Dr Harrington’s medical assessment was incorrect proceeded on at least two misconceptions, namely:

    1. (1)

       that Dr Harrington was required to form an opinion as to causation as well as degree of impairment, when the only medical dispute referred to Dr Harrington was the degree of impairment as a result of the injuries accepted by the parties as having been caused by the motor accident; and

    2. (2)

       that Dr Machart’s certificate in that regard, which had been accepted by the parties and was not challenged, was irrelevant.

25. [65]

    As a result of these misconceptions, the decision maker fundamentally misunderstood the task required to be performed, in this case, when considering whether to be satisfied that there was reasonable cause to suspect that the medical assessment was incorrect. The question which she addressed, in effect, was whether it was open on the material before Dr Harrington to conclude that the injuries which gave rise to the treatment in April 2018 were not caused by the motor accident. This was incorrect since Dr Harrington was not required to form any view as to causation because that issue was not in dispute between the parties and had not been referred to Dr Harrington. As a result of the misconceptions and addressing the wrong question, the decision maker failed to address the correct question which was whether to be satisfied that there was reasonable cause to suspect that Dr Harrington’s medical assessment was incorrect in a material respect because he had based his certificate on his view that the relevant injury was not caused by the motor accident when that issue was not referred to him for assessment.

26. [66]

    Alternatively, the conclusion that the decision maker was not satisfied that there was reasonable cause to suspect that the medical assessment was incorrect in a material respect can properly be characterised as being so unreasonable, in the circumstances outlined above, that no reasonable decision maker performing the required statutory task having regard to the provisions of Pt 3.4 of the MAC Act could have come to it.

27. [67]

    Accordingly, I uphold the application for judicial review on the third and tenth grounds of review.

28. [68]

    It is thus not necessary to deal with any other grounds of review. Nonetheless, it can be observed that it is difficult to perceive how a decision maker, acting reasonably, could not have been satisfied that there was reasonable cause to suspect that Dr Harrington’s medical assessment was incorrect in a material respect in light of:

    1. (1)

       Dr Harrington’s failure to refer to and explain why the evidence of the cost of repairing the damage to Mr Wood’s vehicle as a result of the motor accident and the other relevant circumstances did not establish, as Dr Machart found, that the accident caused trauma and “initial disruption of disc capsule, which over time caused a disc protrusion” which was treated by way of the L5/S1 microdiscectomy and right S1 rhizolysis, if the issue of causation had been referred to Dr Harrington for assessment;

    2. (2)

       Dr Harrington’s erroneous finding that Mr Wood “did not mention anything [in relation to complaints of back pain, left leg pain and left sided loin pain] to his GP for about 9 months” when: (a) the documentation summarised by Dr Machart (quoted at [23] above); (b) Dr Harrington’s own comment that Mr Wood “eventually reported his complaints in the accident to Dr Joshua George, some six weeks later”; and, (c) his being referred for a CT scan and MRI well before 9 months after the motor accident, demonstrated that mention had been made of back pain earlier than 9 months after the motor accident.

Discretion and orders

1. [69]

   Although the conclusion that the decision of the President’s delegate was affected by jurisdictional error has been reached, the Court still has a discretion whether to grant relief by way of an order in the nature of certiorari under s 69 of the Supreme Court Act 1970 (NSW): Navazi v New South Wales Land and Housing Corporation [2015] NSWCA 308 at [121] (Sackville AJA, Leeming JA and Adamson J agreeing).

2. [70]

   As has been noted above, however, there was no opposition to the making of any of the orders sought by the plaintiff, except as to costs, and there does not appear to me to be any reason why the discretion should not be exercised to make an order in the nature of certiorari as sought by the plaintiff. Furthermore, in the absence of any opposition and since it would have been unreasonable to reach any view other than that there was reasonable cause to suspect that Dr Harrington’s medical assessment was incorrect in a material respect, the appropriate consequential order to make is an order of the type sought in prayer 3 in the second amended summons.

3. [71]

   Finally, given that the President, the second defendant, filed a submitting appearance at the outset, it is not appropriate to make any costs order against him. The first defendant, NRMA, did not, however, file a submitting appearance until 22 August 2022. Prior to that date, NRMA had actively defended the proceedings. Since the plaintiff has been successful, it appears to me that costs should follow the event up to and including 22 August, but NRMA should have the benefit of ceasing their opposition to the relief sought being granted after 22 August 2022. It is noted that in the plaintiff’s written submissions an application for a special costs order is foreshadowed. If any such order is to be sought that can be done in accordance with r 36.16(3A) of the Uniform Civil Procedure Rules 2005 (NSW).

4. [72]

   For all these reasons, the orders of the Court are:

   1. (1)

      The decision of the delegate of the second defendant made on 20 September 2021 dismissing the plaintiff’s application for the medical assessment set out in the certificate of Dr Harrington dated 11 June 2021 to be referred to a review panel for review is set aside.

   2. (2)

      The matter is remitted to the Personal Injuries Commission for the second defendant to arrange for the plaintiff’s application for the medical assessment set out in the certificate of Dr Harrington dated 11 June 2021 to be referred to a review panel for review, under s 63 of the Motor Accidents Compensation Act 1999 (NSW).

   3. (3)

      The first defendant is to pay the plaintiff’s costs of the proceedings up to and including 22 August 2022 and otherwise there is no order as to costs.

   4. (4)

      Any application by a party to vary order (3) in relation to costs is to be made in accordance with r 36.16(3A) of the Uniform Civil Procedure Rules 2005 (NSW).