AAI Ltd t/as AAMI v Chan

The first assessment (Dr Kenna)

1. First, a medical assessor (Dr Clive Kenna) determined, by certificate dated 3 May 2019, that Dr Chan did not suffer any injury to his right shoulder caused by the motor accident. The proper officer recorded that Dr Kenna concluded: "There was no evidence at that point in time that he experienced any symptoms or injuries pertaining to the right shoulder. Indeed, the right shoulder was only initially recorded almost three years post-accident, around October 2017. ... it is interesting to note that he was also working out in the gym ... and there is a distinct possibility that he may have incurred an injury to the right shoulder during that rehabilitation process. Subsequent to that, it is also likely that as a result of his activities of plastic surgery, with his arm in constant abduction ... that this precipitated also the onset of impingement bursitis and subsequently rotator cuff pathology ... Hence, I consider that the right shoulder, in view of the time and lack of contemporaneous relationship to the motor vehicle accident, i.e. onset three years later, specifically physical activities relating to surgery and specific activities in relation to the gym, that he could have incurred his right shoulder pathology subsequent to these activities ... I considered there is no contemporaneous information, i.e. there is a casual [sic] disconnect between the motor vehicle accident and the onset of right shoulder symptoms." [emphasis of the proper officer]

The review by the panel

1. The regime permits a person dissatisfied with the result of a medical assessment to apply for a review by a review panel, but only on the ground that it was incorrect in a material respect: s 63. It was uncontroversial that, contrary to what was recorded by Dr Kenna in the passage reproduced above, Dr Chan's original claim form referred to pain in his right shoulder. On that basis, by application made on 4 June 2019, a medical review panel reviewed Dr Kenna's assessment.
2. By decision dated 9 September 2019, that panel confirmed Dr Kenna's assessment pursuant to s 63(4). The proper officer recorded that the Panel's reasons included the following: "The Panel has noted that six days after the subject MVA, [the claimant] commenced treatment from a massage therapist, which continued until 1 August 2015. Treatment was confined to the neck and there was no mention of any problems with the right shoulder. It was also noted that the first documented evidence of a right shoulder problem was October 2017 and an ultrasound examination of the shoulder was carried out on 31 January 2018, which showed subacromial bursitis. The Panel noted the history of the claimant stating he felt a "pop" in the right shoulder at the time of the collision and this may have indicated a soft tissue injury to the shoulder, but in view of the paucity of documentary evidence of right shoulder problems until October 2017, the Panel did not accept injury had occurred to the shoulder consequential upon the MVA. Had a significant injury occurred to the right shoulder in the subject motor vehicle accident there would have been significant pain and limitation of functioning from the time of the accident. Rather there was a very substantial delay in the development of the right shoulder symptoms. It is not medically possible for the motor vehicle crash to have involved a significant injury to the shoulder with period of absence of recorded symptoms from the right shoulder. The Panel was therefore in agreement with the Assessor, who accepted causation for injury to the neck but not to the right shoulder."

The application for a further medical assessment

1. While that review was in place, Dr Chan's solicitors obtained further reports from A/Prof Haber and Dr Porteous. Their reports are dated dated 25 July 2019 and 31 July 2019. Although that was some six weeks before the review panel's determination, there is nothing to suggest that these reports were provided to the panel, and the litigation has proceeded on the basis that they were not provided to the panel.
2. Following the confirmation in September 2019 of Dr Kenna's assessment by the panel, Dr Chan applied for further medical assessment, based on the July reports, under s 62.
3. The Act contemplates cases where a claimant's condition has deteriorated, or where additional relevant information has become available, when there may be a further medical assessment. In such cases, it is necessary to satisfy the proper officer (who is a staff member of the State Insurance Regulatory Authority: s 62(1B)) that there should be further medical assessment. This was described in submissions, not inaptly, as a "gateway" function.
4. The proper officer's decision in the present case, dismissing Dr Chan's application for further medical assessment based on the July reports of A/Prof Haber and Dr Porteous, is the decision subject to judicial review from which this appeal has been brought.

Section 62 of the Motor Accidents Compensation Act

1. The proper officer's decision was made under s 62 of the Act. That section relevantly provides: "62 Referral of matter for further medical assessment (1) A matter referred for assessment under this Part may be referred again on one or more further occasions in accordance with this Part: (a) by any party to the medical dispute, but only on the grounds of the deterioration of the injury or additional relevant information about the injury, or (b) by a court or claims assessor. (1A) A matter may not be referred again for assessment by a party to the medical dispute on the grounds of deterioration of the injury or additional relevant information about the injury unless the deterioration or additional information is such as to be capable of having a material effect on the outcome of the previous assessment."
2. It will be seen that the bases on which there may be a referral for further medical assessment by a party (as opposed to by a court or claims assessor) are limited to the two grounds in s 62(1)(a): deterioration of the injury or additional relevant information about the injury. In the present case, only the latter was relevant. It will also be seen that where an application is based on either or both of the two grounds in s 62(1)(a), the first step is to determine whether the prohibition in s 62(1A) requires the application for further assessment to be dismissed.
3. Section 62 has given rise to a deal of law, in part because a number of important aspects of the section are matters of implication. It is convenient to note the following immediately.
4. First, in accordance with what was said in Jubb v Insurance Australia Ltd [2016] NSWCA 153; 76 MVR 228, it was accepted that the reports of A/Prof Haber and Dr Porteous were "additional relevant information" for the purposes of s 62. That is to say, notwithstanding that the "issue" of whether the motor vehicle accident caused the injury to Dr Chan's shoulder was well and truly alive at the earlier assessments, the further reports were not precluded from constituting "additional relevant information" for the purposes of s 62(1A) on that basis. Jubb disapproved earlier reasoning to that effect. Of course, that was not an end to the operation of the prohibition in s 62(1A). The insurer had made it plain that while it accepted what had been held in Jubb, nonetheless, the July 2019 opinions on which Dr Chan now placed reliance were not capable of having a material effect on the outcome of Dr Chan's previous assessment.
5. Secondly, although s 62(1) is expressed in the passive and s 62(1A) is a prohibition, the section impliedly confers power on the proper officer to refer the matter for medical assessment, but only if the precondition in s 62(1A) is satisfied.
6. Thirdly, the prohibition in s 62(1A) turns on whether the proper officer has formed an opinion as to whether the deterioration or additional information is such as to be capable of having a material effect on the outcome of the previous assessment. That is so despite the absence of any reference in s 62 to the proper officer being of an "opinion" or being "satisfied" or any other language explicitly referring to the proper officer's state of mind (contrast s 63, which performs a similar role, and which explicitly asks whether the proper officer "is satisfied" of certain things). Ultimately, this is a question of statutory construction, which warrants some elaboration.
7. Statutory powers are often qualified by preconditions. A recurring question of construction in any such case is whether the precondition is satisfied (a) by the fact or, alternatively (b) by an opinion held by the donee of the power as to that fact. As a matter of general principle, "the mere fact that a requirement is objectively expressed, rather than by reference to the satisfaction of the officer or tribunal concerned, is not decisive of the construction issue": Coordinated Construction Co Pty Ltd v Climatech (Canberra) Pty Ltd [2005] NSWCA 229 at [44]. Notoriously, the question of construction can itself give rise to considerable difficulty and be a matter upon which reasonable minds can differ, as Spigelman CJ observed in Woolworths Ltd v Pallas Newco Pty Ltd (2004) 61 NSWLR 707; [2004] NSWCA 422 at [9]. But the question is important, because compliance with the precondition is essential in order to avoid transgressing upon the limits of the power conferred by the statute.
8. It is established in respect of s 62(1A), despite the absence of any explicit reference to the opinion of the proper officer, as opposed to the fact, as to the additional relevant information being capable of having a material effect on the outcome of the previous assessment, that nonetheless the prohibition in s 62(1A) turns on the proper officer's opinion. The authorities in this Court are collected by Gleeson JA in Jubb v Insurance Australia Ltd at [33]. No challenge to this was made by the parties.
9. One matter favouring a construction that the prohibition turns on the proper officer's opinion, to which reference was made by Basten JA in QBE Insurance (Australia) Ltd v Miller [2013] NSWCA 442; 67 MVR 322 at [31], is that the preconditions involved matters of evaluative judgment. Some cases may be clear. A proper officer might reach the conclusion that a further medical report which agreed with and added nothing to what had previously been said by a report already considered by an assessor was not capable of having a material effect on the outcome of the previous assessment. On the other hand, a proper officer might readily conclude that a further report which articulated a different causal mechanism between the accident and the injury was capable of having a material effect on the outcome of the previous assessment. That conclusion might all the more readily be reached if the further report referred to the reasons given for the existing assessment and explained why they were wrong and what matters had not been considered (of course, that was not the present case, because A/Prof Haber and Dr Porteous provided their opinions some six weeks before the panel reviewed the first assessment). Naturally there will be intermediate cases. But all involve an evaluation, as to which minds might differ, of the reasoning which sustained the existing assessment, and the possible effect upon that reasoning if regard were had to the additional information. This points towards the conclusion that the prohibition turns on the proper officer's opinion as to whether or not the additional information is capable of having a material effect, rather than the fact.
10. The proper officer's opinion which disapplies the prohibition upon referral for further medical assessment is the opinion that the additional relevant information is capable of having a material effect on the outcome of the previous assessment. That is not a high bar. It does not involve a prediction that the further medical assessment will, more probably than not, lead to a materially different outcome.
11. However, in order to form a view one way or the other as to the capacity of additional relevant information to have a material effect on the outcome, it is obviously necessary for the proper officer to turn his or her mind to the original assessment and the reasons supporting that assessment, and then to evaluate the extent to which, if at all, the new material impacts on what has already been determined.
12. The prohibition imposed by s 62(1A), turning as it does upon the capacity of information to have a "material effect", is necessarily future-looking and speculative. It is not for the proper officer himself or herself to guess the outcome of any further assessment. But it is necessary for the proper officer to form a view on whether the additional information has the capacity to have an effect on the outcome, and whether any such effect is material.
13. Fourthly, while the prohibition in s 62(1A) turns on the opinion formed by the proper officer, that opinion is itself amenable to judicial review on conventional administrative law grounds. It was common ground, at first instance and on appeal, that review of the opinion formed by the proper officer would be conducted in accordance with what was said in QBE Insurance (Australia) Ltd v Miller at [36]: "Once it is accepted that the characterisation of the information is a matter to be considered in the first instance by the proper officer and not one to be determined by this Court afresh on a judicial review application, the review proceedings are limited to determining whether the proper officer's opinion has been properly formed according to law: Buck v Bavone [1976] HCA 24; 135 CLR 110 at 118-119 (Gibbs J); D'Amore at [220]. The critical question is thus 'whether the determination was irrational, illogical and not based on findings or inferences of fact supported by logical grounds': Minister for Immigration and Multicultural and Indigenous Affairs v SGLB [2004] HCA 32; 78 ALJR 992 at [38] (Gummow and Hayne JJ). Further, as explained by Latham CJ in The Queen v Connell; Ex parte Hetton Bellbird Collieries Ltd [1944] HCA 42; 69 CLR 407 at 432: 'If the opinion which was in fact formed was reached by taking into account irrelevant considerations or by otherwise misconstruing the terms of the relevant legislation, then it must be held that the opinion required has not been formed. In that event the basis for the exercise of power is absent, just as if it were shown that the opinion was arbitrary, capricious, irrational, or not bona fide'."
14. Despite that being common ground between the parties, and despite its being reproduced by the primary judge in his reasons for judgment, it is desirable to observe that the task for the court on review is confined to whether the opinion has been properly formed according to law. The issue is not whether the proper officer was right or wrong to hold the opinion, as it might be if an appeal lay by way of rehearing. The issue is whether the opinion has been shown to be vitiated on administrative law grounds. That might be because it is based on a misconstruction of the legislation, or because it paid regard to something to which a statute prohibited regard being had, or because it failed to pay regard to something to which statute insisted regard must be had, or because it was "irrational, illogical and not based on findings or inferences of fact supported by logical grounds". But it is not sufficient merely to establish "error on the face of the record".
15. Fifthly, it was not disputed that the record extends to the reasons of the proper officer, in accordance with s 69(4) of the Supreme Court Act 1970 (NSW). It is appropriate to proceed on that basis, as was the case in Meeuwissen v Boden (2010) 78 NSWLR 143; [2010] NSWCA 253 at [14]. However, it is to be borne in mind that the proper officer is not necessarily as qualified as a legal practitioner or a medical practitioner, and the "brief written reasons" which accompanied the decision are not to be construed as if they were reasons for the judgment of a court.
16. Sixthly, if the precondition in s 62(1A) were not satisfied, the application was required to be refused. However, if the proper officer formed an opinion such that the prohibition did not apply, there remained a residual discretion whether or not to refer a matter for a further assessment. As Gleeson JA observed in Jubb at [61], that discretion is not to be conflated with the formation of the proper officer's opinion or state of satisfaction under subs (1A). His Honour referred at [63] to the possibility of refusing an application for further assessment if the application were vexatious or raised considerations such as a lack of diligence by a party in obtaining information.
17. In short, the threshold question for the proper officer was whether the reports of A/Prof Haber and Dr Porteous were "such as to be capable of having a material effect on the outcome of the previous assessment". Only if she formed the opinion that they were was the prohibition in s 62(1A) inapplicable. If she did form that opinion, then it would be necessary to exercise a discretion.

The determination of the proper officer

1. Dr Chan's application was supported by written submissions from both sides, and was determined on the papers by the second respondent, the proper officer.
2. On 3 February 2020, the proper officer (Ms Tami O'Carroll) determined that the matter would not be referred for further medical assessment. Her reasons occupy 36 paragraphs. In light of the submissions advanced in this Court, it is necessary to summarise the reasons in some detail.
3. The proper officer's reasons summarise Dr Chan's submissions as follows: "9. The claimant makes submissions in relation to the right shoulder only. Reliance is placed on the report from A/Prof Haber, the claimant's treating physician, who diagnos[ed] the claimant with rotator cuff tear and a secondary capsulitis as a result of the accident. In providing this diagnosis, A/Prof Haber explains that it is not unusual for there to be a considerable time delay between the accident and symptoms, noting partial thickness tears gradually deteriorate over time and often become symptomatic when they are larger. 10. Dr Porteous records a history of the claimant receiving a significant impact and hearing a sound in his right shoulder, also that he was jerked backward in his seat and suffered immediate ongoing symptoms in his shoulder, albeit described as 'very mild right shoulder pain'. The lack of recorded history of the right shoulder is noted to be unremarkable as treatment was sought in respect of the more severe disability, being for the cervical spine. Dr Porteous assessed 9% WPI for the right shoulder. 11. The claimant submits the above information compels a finding that the cause of the claimant's shoulder injury 'is probably' the accident. If causation is established, it is likely that when combine[d] with the 5% WPI assessed for the cervical spine, the claimant's overall WPI assessment [will] be greater than 10%."
4. The insurer's submissions were summarised as follows: "12. The Insurer notes that the reports of A/Prof Haber and Dr Porteous were not before the Review Panel at the time of their assessment and concedes that the reports are additional relevant information. However, the Insurer submits that the reports are not capable of having a material effect on the outcome of the Panel's assessment. 13. The reports do not contain different or additional objective information about the right shoulder and merely express another medical opinion as to causation of the shoulder injury. The Panel was entitled to formulate their own independent assessment of causation. As the reports of A/Prof Haber and Dr Porteous are not based on additional or different information about the right shoulder, they would have no material effect on the Panel's determination as to causation. 14. The Insurer states that the reports are not likely to be persuasive because: they make causal findings five years after the accident occurred; are inconsistent with the determinations of all other medical experts, and are incompatible with the lack of any contemporaneous complaint of right shoulder injury (the Insurer attaches and relies on various documents in this regard, pointing out that there was no record of right shoulder pain in these documents). 15. [In] relation to the opinion of A/Prof Haber the Insurer also submits that he does not satisfactorily identify the mechanism for causation of the right shoulder girdle rotator cuff injury. 16. Further, the Insurer submits that even if the reports of A/Prof Haber and [Dr] Porteous did overturn the causation finings there would be no material effect on the previous assessment as the claimant demonstrated full ranges of motion on assessment with Drs Giblin, Chen and Conrad and the Panel found had causation been accepted 'these findings would have indicated that there had not [been] any impairment to the right shoulder ...' 17. Lastly, the Insurer relies on Jubb and submits that I should not exercise my residual discretion [to] refer the matter for further assessment as the claimant should not be able to seek a further assessment merely based on an opinion which is discordant to that of the Panel."
5. In the following paragraph 18, the proper officer noted the absence of a dispute that the reports of Dr Porteous and A/Prof Haber were additional relevant information, but stated that for the reasons that followed, "I am not satisfied that the additional relevant information is such as to be capable of having a material effect on the outcome of the previous assessment."
6. The following paragraphs summarised the reasoning process of Assessor Kenna and the review panel insofar as they addressed the causal connection between the 2014 motor accident and the shoulder injury which appeared on MRI scans in 2018, including the reasoning which turned on the absence of complaint of any pain to Dr Chan's shoulder as opposed to his neck, the delayed onset of symptoms and Dr Chan's other activities in the meantime. Those passages have been reproduced above.
7. The proper officer thereafter addressed each of the two new reports in turn as follows: "24. In a report dated 25 July 2019, A/Prof Haber opined that the claimant suffered rotator cuff tear and capsulitis which was caused by the motor accident. He notes the Assessor's conclusions on causation and states: 'I feel the complexity of [the claimant's] shoulder condition has been oversimplified. I suspect this comment is based on his observations regarding the timeframe of symptoms ... Regarding the aetiology of his current condition, it was noted at the time of surgery he had a combination of rotator cuff tear and capsulitis. The literature on this subject is clear. Non-traumatic rotator cuff tear[s] are extremely rare in people under the age of 60. The most significant factor of developing a tear in this age group is acute trauma. As [the claimant] does not participate in high risk sports, has not had any other history of trauma and has not performed inappropriate repetitive weightlifting above shoulder height, the only clear risk factor is the motor vehicle accident... It is a welI-established fact that these partial-thickness tears do gradually deteriorate over time and often become symptomatic once they have become largely [sic]. Overlying this is the development of a secondary capsulitis (which [is] very different from a 'frozen shoulder'). This causes increasing pain and severe stiffness which was noted at the time of surgery.['] 25. Whilst I acknowledge that A/Prof Haber is the claimant's treating specialist and that he expresses a different view as to causation than that reached by the Panel, this opinion is not based on any new information than what was before the Panel at the time of the Assessment. 26. In particular, whilst A/Prof Haber opines that a delay in the presentation of symptoms of a rotator cuff is not unusual, the Panel were clearly aware of the presence of this tear, but nonetheless found 'it is not medically possible for the motor vehicle crash to have involved a significant injury to the shoulder with [that] period of absence of recorded symptoms from the right shoulder'. 27. A/Prof Haber also took a different view as to the possibility that the claimant's gym work may have been causative of his shoulder pathology. 28. Dr Porteous was provided with a copy of A/Prof Haber's report and the Assessor's certification (in [addition] to other relevant medical evidence). Dr Porteous concludes: [']There is record that indicate [sic] immediately after the subject accident and then intermittently records of some posterior right shoulder symptoms and pain felt in the right shoulder and down the right arm. The medical notes on file indicate that then significant right shoulder symptoms and restriction started being reported in late 2017. The three-year gap between the subject accident and the onset of significant right shoulder symptoms does at face value make it difficult to conclude that the right shoulder condition was caused by the subject accident, however when looking more closely, there has in fact been non-specific shoulder symptoms reported since the subject accident. There is also no evidence of other events or factors occurring since the subject accident that could cause a rotator cuff tear. In my opinion, on the balance of probabilities, it is more likely than not that the subject accident caused [an] injury to the right shoulder, that later became more symptomatic.' 29. Again, whilst Dr Porteous reaches a different view as to causation, and in particular as to whether there had been events or factors since the accident that could have caused a rotator cuff tear, this is an issue on [sic] which was carefully considered by the Assessor and the Panel, who reached a different view. 30. I acknowledge that the claimant notes that Dr Porteous records a history of the claimant receiving a significant impact and hearing a sound in his right shoulder, however, both the Panel and the Assessor took a history which included the claimant's description of the accident and both note that the claimant reported hearing a sound/pop sound in his shoulder at the time of the accident. 31. Whilst l acknowledge that both Dr Porteous and A/Prof Haber opine that the claimant's right shoulder injury was caused by the motor vehicle accident, these opinions do not appear to be based on any new findings or information than that which was considered by the Panel when reaching their determination. I therefore do not consider that the reports are capable of changing the outcome of the previous assessment in relation to the right shoulder. 32. There is nothing on the face of the reports from Dr Porteous or A/Prof Haber which appears to be capable of having any effect on the outcome of the previous assessment in relation to the cervical spine, the claimant does not make any submissions to the contrary and I note there appears to be no dispute in relation to the assessment of this injury (the claimant does not list the cervical spine in their application). 33. For the reasons outlined above, I am not satisfied that there is additional relevant information or deterioration of the injury such as to be capable of having a material effect on the outcome of the previous assessment as required by section 62(1A) of the Act."
8. There is no mention of any exercise of residual discretion. The proper officer refused the application because, on the view she took, the prohibition in s 62(1A) applied.

Proceedings before the primary judge

1. No appeal lies from the proper officer's decision. By summons filed in the Common Law Division of this Court, Dr Chan sought judicial review of the proper officer's decision, pursuant to this Court's supervisory jurisdiction under s 69 of the Supreme Court Act.
2. The summons does not suggest any close attention was given to the formulation of grounds of review. It provides that the proper officer erred by "(a) misconstruing section 62(1A) of the Act; (b) asking herself the wrong question; (c) taking into account an irrelevant consideration; (d) failing to take into account a relevant consideration; or (e) any or all of the above", in determining the application "(i) on the basis that the opinions of Associate Professor Haber and Dr Porteous were 'not based on any new information than what was before the Panel at the time of the Assessment', so that their opinions could not constitute 'additional information' 'such as to be capable of having a material effect on the outcome of the previous assessment' within the meaning of and/or for the purposes of section 62 of the Act; and (ii) by considering and deciding whether the opinions of Associate Professor Haber and Dr Porteous would in fact have a material effect on the outcome of the previous assessment instead of considering the correct question, namely, whether their opinions were 'such as to be capable of having a material effect on the outcome of the previous assessment', that is, whether their opinions could have a material effect on the outcome."
3. The summons stated that the said errors were "jurisdictional errors and/or errors on the face of the record" [sic].
4. The impression which that mode of drafting creates in my mind is that the itemised grounds (i) and (ii) enunciated the complaint which is made of the proper officer's reasons. So far so good. But the collocation of "any or all" of four general grounds of judicial review, coupled with the concluding words that the errors constituted "jurisdictional errors and/or errors on the face of the record" suggests a desire to treat the summons as if it were a notice of appeal, and by that device convert valid grounds of appeal into judicial review.
5. Misconstruing a section may disclose error of law on the face of the record. On the other hand, asking the wrong question may amount to a jurisdictional error. Taking into account an irrelevant consideration involves identifying a requirement in a statute that vitiates decisions which have regard to the consideration. Failing to take into account a relevant consideration involves identifying a statutory obligation to have regard to that consideration. Although some of the four general grounds nominated in the summons may overlap, they are quite diverse. I do not regard a drafting process which labels the complaints encapsulated in paragraphs (i) and (ii) as falling within "any or all of the above" as complying with the obligation in UCPR r 59.4 to "state ... with specificity, the grounds on which the relief is sought".
6. This Court has previously deprecated the conflation of jurisdictional error and error of law on the face of the record. In AAI Ltd trading as GIO as agent for the Nominal Defendant v McGiffen at [45], Meagher, Simpson and Payne JJA said: "As has been repeatedly emphasised, the distinction is important, as a claim for relief based on jurisdictional error may be established by any admissible evidence relevant for that purpose while a claim for relief based upon an error of law within jurisdiction must identify the error 'on the face of the record'."
7. The reference to "repeatedly emphasised" reflected what has been said for many years: see (without seeking to be exhaustive) Allianz Australia Insurance Ltd v Kerr (2012) 83 NSWLR 302; [2012] NSWCA 13 at [11] and [19], Pham v NRMA Insurance Ltd [2014] NSWCA 22; 66 MVR 152 at [24] and Ali v AAI Ltd [2016] NSWCA 110; 75 MVR 502 at [33].
8. Further, "error on the face of the record" is at best an elliptical formulation of the ground of judicial review. True it is that it may be a convenient shorthand, as it was in Craig v South Australia (1995) 184 CLR 163 at 186-187; [1995] HCA 58. But the formulation sanctioned by centuries of use is "error of law on the face of the record". A mere error of fact which is patent on the face of the reasons for a decision does not render the decision liable to be set aside in proceedings by way of judicial review. Lest there be any doubt about it, the supervisory jurisdiction of this Court recognised in Kirk v Industrial Court (NSW) (2010) 239 CLR 531; [2010] HCA 1 does not extend to any error, whether of fact or law or mixed fact and law, on the record of a decision involving the exercise of executive power. It may readily be accepted that drawing the boundary between error of fact and error of law can be fraught, but there can be no doubt that some such distinction must be drawn.
9. The oral submissions at first instance were brief (occupying 13 pages of transcript). This reflected the fact that the primary judge had earlier received a court book and both parties' written submissions. The primary judge very promptly produced a written judgment the day after the hearing. After summarising the procedural background, his Honour gave a very concise summary of the reasons of the proper officer. The entirety of that reasoning was as follows: "[7] In considering these reports, the proper officer reasoned as follows: '18. I note that there is no dispute between the parties that the reports of Dr Porteous and A/Prof Haber are additional relevant information. For the reasons that follow, I am not satisfied that the additional relevant information is such as to be capable of having a material effect on the outcome of the previous assessment. … 31. Whilst I acknowledge that both Dr Porteous and A/Prof Haber opine that the claimant's right shoulder injury was caused by the motor vehicle accident, these opinions do not appear to be based on any new findings or information [other] than that which was considered by the Panel when reaching their determination. I therefore do not consider that the reports are capable of changing the outcome of the previous assessment in relation to the right shoulder.' [8] The proper officer appears clearly to have accepted the insurer's submission in this respect, which she recorded at [13] of her reasons as follows: 'The reports do not contain different or additional objective information about the right shoulder and merely express another medical opinion as to causation of the shoulder injury. The Panel was entitled to formulate their own independent assessment of causation. As the reports of A/Prof Haber and Dr Porteous are not based on additional or different information about the right shoulder, they would have no material effect on the Panel's determination as to causation."
10. In this Court, the insurer was critical, saying that those paragraphs did not fairly summarise the reasoning process of the proper officer or the submissions which had been made on its behalf: "[W]e say that that isn't fair to Ms O'Carroll in the context of the whole of her reasons. It is also only a part of the submissions that were made to Ms O'Carroll."
11. As is plain from what has been reproduced above, the insurer's submissions were not confined to paragraph [13]. Different submissions were made and recorded, accurately, by the proper officer at paragraphs [14]-[17].
12. After reproducing ss 62 and 63, and noting, correctly, that the meaning and scope of the words "such as to be capable of having a material effect on the outcome of the previous assessment" in s 62(1A) were central to the dispute, his Honour summarised Dr Chan's submissions at [11]-[12]. No mention was made of the insurer's submissions in those paragraphs. Further, the insurer contended that they disclosed error in two distinct ways.
13. First, [11] was directed to "an error on the face of the record at [31]" of the reasons of the proper officer. The paragraph included a reference to Dr Chan's submission that the insurer's approach was erroneous in so far as "the clear test stated in s 62 is whether those opinions could be capable of doing something, not whether they would do so" and "the proper officer's use of the word "would" in [31] of her reasons bespoke error. In fact, the proper officer did not use the word "would" in [31] of her reasons. Precisely what his Honour was intending to convey is not clear. However, Dr Chan's submissions had asserted that that was the gravamen of the proper officer's reasons. Paragraph 26 of his submissions included: "[S]he decided that the opinions would not change the Panel's assessment, as distinct from deciding the correct question, namely, whether, as a matter of fact, the opinions could have a material [e]ffect on that assessment." [original emphasis]
14. More substantively, the insurer submitted that paragraph [31] of the proper officer's decision did not fairly encapsulate the evaluative process disclosed in the proper officer's reasons. That went, so it was said, far beyond the mere conclusion that there was an absence of new findings or information other than what had previously been considered by the panel.
15. The primary judge reproduced passages from this Court's decisions in Jubb v Insurance Australia Ltd and QBE Insurance (Australia) Ltd v Miller. His Honour also then reproduced, at [15], a further submission said to have been advanced on behalf of Dr Chan. That submission was that the legislation had been misconstrued in so far as the proper officer had proceeded on the basis that the opinions of the doctors "could not be capable of having a material effect" unless based on new objective information. His Honour also reproduced Dr Chan's submission that "the proper officer approached her task as if it was one that required her to determine whether a new assessment panel would change their mind, not whether they could". The entirety of the remainder of the reasons is at [16]-[17]: "[16] Section 62(1A) clearly operates as a filter or gateway provision with the apparent purpose of restricting matters that are to be referred for further assessment to those that could have a material effect on the outcome of the previous assessment. Although the provision does not say so in terms, the notion of a material effect appears clearly to contemplate the prospect or possibility of a different result. Put another way, the legislation operates so that an application for further referral that is unlikely to produce a different result, in the sense that it is incapable of having a material effect on the outcome of the previous assessment, will not succeed. [17] The word 'capable' as used in s 62(1A) summons the concept of whether what is being considered as additional information has the potential to have a material effect on the outcome. While she uncontroversially accepted that the medical opinions in question were capable of amounting to additional information, the proper officer in my opinion improperly fettered her discretion by dismissing the prospect that the medical opinions of Associate Professor Haber and Dr Porteous were capable of materially [a]ffecting the outcome by reasoning that they were not underpinned or based upon a factual matrix that differed from that with which the original assessment was concerned. The fact that there has been no change of circumstances cannot in my opinion be a relevant disqualification of the reports in an assessment of their capability to have a material effect on the outcome. It may be accepted at one level that the likelihood that the reports would have the relevant effect in such circumstances may be low: but that is not what the proper officer was concerned to determine. The medical reports in question did not lose their capability of having such an effect. The proper officer's expressed concern, that the 'opinions do not appear to be based on any new findings or information than that which was considered by the Panel' indicates either that she posed the wrong question or improperly limited the scope of her inquiry. Put slightly differently, it was an error for the proper officer to say that because the medical reports were not based on new findings or information that they were for that reason incapable of having a material effect on the outcome of the previous assessment. In either case, in my opinion, this constitutes an error on the face of the record."

The appeal to this Court

1. Grounds 4 and 5 asserted error in disregarding what was asserted to be an exercise of the residual discretion by the proper officer. Dr Chan said that the proper officer's reasons "cannot be fairly read as being an exercise of residual discretion". I agree. It is plain, and Mr Rewell SC, who appeared for the insurer in this Court but not at first instance came close to conceding, that the proper officer did not reach the residual discretion because she formed an opinion that entailed that the prohibition in s 62(1A) required the application to be refused. Nothing more need be said of those grounds.
2. Grounds 1, 2, and 3 maintained that the primary judge erred in the construction of s 62(1A). The insurer contended that it was wrong for the primary judge to have considered that all that was necessary was a "prospect" or a "possibility" of a different outcome, and that his Honour had proceeded on the basis that any additional information that gives rise to the possibility of a different outcome is information that could have a material effect on the outcome. Ground 6 was that the primary judge had erred in treating the reasons of the proper officer as asking whether the additional information "would" rather than "could" have a material effect on the outcome.
3. The parties' submissions treated the residual discretion separately, but otherwise addressed grounds 1, 2, 3 and 6 collectively. I shall follow the same course. But there is an anterior issue.

Is there an appeal as of right?

1. The insurer purported to appeal as of right. There had been a final hearing on the summons seeking judicial review, but it is far from clear that an appeal lies as of right.
2. Section 101(2)(r) of the Supreme Court Act made the insurer's right of appeal under s 101(1) subject to a grant of leave unless the appeal "involves a matter at issue amounting to or of the value of $100,000 or more" or "involves (directly or indirectly) any claim, demand or question to or respecting any property or civil right amounting to or of the value of $100,000 or more". The decision of the primary judge required the proper officer to consider once more Dr Chan's application for further medical assessment. That application might, or might not be granted. If the application were granted, then there would be further medical assessment by an assessor. That assessor might, or might not, conclude that there was impairment of the shoulder in addition to the cervical spine. If there was such impairment, then it might, or might not, cause Dr Chan's total level of whole person impairment to exceed 10%. If it did, then Dr Chan would, if he commenced proceedings for damages from the injury, be entitled to include in his claim damages for non-economic loss, and a court might award damages on that head. Such damages might, or might not, exceed $100,000.
3. True it is that as a result of the decision at first instance, the insurer was exposed to the possibility of an adverse decision of the proper officer, which might in turn lead to the sequence of events summarised above. It does not without more follow that s 101(2)(r) is inapplicable.
4. Ordinarily, an appellant who needs to establish that s 101(2)(r) does not make a right of appeal subject to leave will do so by way of evidence: see UCPR r 51.22; Gaynor v Attorney General of New South Wales (2020) 102 NSWLR 123; [2020] NSWCA 48 at [13]-[18] and authorities there cited. Although the parties proceeded on the basis that an appeal was available as of right, I respectfully doubt that that is so. However, for the reasons which follow, this is an appropriate case for a grant of leave in respect of those grounds which are not based on the residual discretion. I propose that, to the extent necessary, there be such grant of leave.

The parties' submissions on appeal and their resolution

1. The dispositive paragraphs of the reasons of the primary judge are [16] and [17], reproduced above. The insurer criticised the description of s 62(1A) in [16] by reference to the variety of glosses placed on the subsection: "could have a material effect on the outcome"; "contemplate the prospect or possibility of a different result"; "unlikely to produce a different result"; and "incapable of having a material effect on the outcome": "We say that his Honour's struggle in paragraph 16 of the judgment with the terminology indicates that his Honour was unsure where to put the test so far as what the proper officer had to determine was concerned, and his Honour's various formulations of words that might be used distracted his Honour from the words that are used in s 62(1A) which requires the proper officer to form an opinion as to whether the information is such as to be capable of having a material effect."
2. The insurer submitted that on a fair reading of the reasons of the proper officer, she was not merely recording that the new reports were based on the same factual material. Rather, she was as a matter of substance saying that the very hypotheses advanced by A/Prof Haber and Dr Porteous had already been considered, and rejected, by the panel. For example, the point of [26] of the reasons of the proper officer, which fairly acknowledged A/Prof Haber's opinion that a significant delay in the presentation of symptoms for a torn rotator cuff is not unusual, went on to say that the panel was aware of the tear but nonetheless rejected the possibility that it had been caused by the motor vehicle accident, given the absence of recorded symptoms from the shoulder over a three year period. The insurer acknowledged that the word "therefore" in paragraph 31 was problematic, but said that the reasons needed to be read fairly as a whole.
3. Dr Chan submitted that the critical passages in the reasons of the proper officer were those reproduced by the primary judge. In particular, paragraph 31, which followed the analysis of the new evidence of A/Prof Haber and Dr Porteous and the conclusion that neither man's opinion was based on new findings or information, asserted that "therefore" those reports were not capable of changing the outcome of the previous assessment.
4. This was said to disclose error as follows: "[T]he short point that we were making, which is the reasons for the decision on their face disclose either that an irrelevant consideration was taken into account in the sense that, as his Honour did point out, the proper officer fettered her evaluative exercise by simply stopping at the point where she said the 'opinions do not appear to be based on any new findings or information than that which was considered by the panel'. My learned friend said that we say that that's the end of it and there's no evaluative exercise after that. That's not what we've ever said. What we say is there should have been an evaluative exercise. It didn't occur because the proper officer shut herself off at that point. So not only did she not get to residual discretion, she didn't actually determine the question of whether the new material was capable, and, as I'll come to in a moment, setting out parts of the material is not giving reasons for evaluating between them."

Consideration

1. Dr Chan's summons, and some (but not all) of the oral submissions made on his behalf, referred merely to "error" on the face of the record. That same language found its way into the reasons of the primary judge at [11] and in the dispositive paragraph [17]. However, the primary judge was not conducting an appeal by way of rehearing of the decision of the proper officer. The question was one of judicial review, and even if the proper officer was wrong as a matter of fact as to whether the new material was capable of having a material effect on the outcome of the previous assessment, that does not suffice to vitiate her decision.
2. To be fair, the written submissions made on behalf of Dr Chan at first instance referred, correctly, to error of law on the face of the record, as did some of the oral submissions (although the transcript records that some of the oral submissions followed the language of Dr Chan's summons and referred to mere "error on the face of the record"). But at no time did the primary judge refer to error of law on the face of the record. When the appeal was heard, there was no dispute about the applicable principles. The references to "error on the face of the record" having been raised during submissions, senior counsel for Dr Chan concluded his submissions in this Court as follows: "There is simply a determination based on the erroneous proposition that unless new opinions are based on any new findings or information, and that was considered by the panel and they are simply not capable of having material effect. That is plainly inconsistent with the criteria in the section. It's an irrelevant consideration because it's plainly contrary to the way in which the section requires the proper officer to engage in the evaluative exercise. It is true she could have done all of the things that my learned friend says that she did, but she didn't. I just can't put it any further or higher than that. It is the plainest example of erroneous reasoning on the face of the record and it can't be-- LEEMING JA: Do you have to do more than show erroneous reasoning on the face of the record? SEXTON: Although the primary judge didn't say error of law on the face of the record, it's plain that that was what was being put to him and it's plain what he had in mind. No, we need to show that it falls within one of the criteria for judicial review of this type of decision. But I won't repeat myself, it does, for the reasons that I've identified."
3. The reformulations of the statutory text in the dispositive paragraphs [16] and [17] of the reasons of the primary judge ("prospect", "possibility", "unlikely", "incapable" and "potential") may have distracted from the task identified in QBE Insurance (Australia) Ltd v Miller. That task was (a) to identify whether the proper officer held the opinion required by the section that the additional information "is such as to be capable of having a material effect on the outcome of the previous assessment" and (b) if so, whether that opinion was properly formed.
4. It is clear from what the proper officer said at [18] and [31] that she held an opinion that the prohibition in s 62(1A) required the application to be dismissed. The question on an application for judicial review was not whether that opinion was right or wrong. It was whether it was properly formed, or else was vitiated by reviewable error.
5. Whether or not additional relevant information is capable of having a material effect on the outcome of a previous assessment depends upon the reasons for the previous assessment and the nature of the additional information. If the additional information, for example, contains a new opinion hitherto unconsidered as to the mechanism of injury, then that would be a factor pointing towards its being capable of having a material effect on the outcome of the previous assessment. If on the other hand the additional information substantially overlaps with material already considered by an assessor or a panel, then that would point against its being capable of having a material effect on the outcome. However, in either case this is a question of fact. It is well removed from any question of law.
6. Insofar as Dr Chan sought judicial review of the decision of the proper officer on the basis of error of law on the face of the record, it is incumbent upon him to identify what the error of law is. Merely making a wrong finding of fact is not an error of law.
7. The proper officer asked herself the question posed by the statute: were the reports of A/Prof Haber and Dr Porteous such as to be capable of having a material effect on the outcome of the previous assessment? In order to answer that question, it is not a fair reading of her reasons to say that the proper officer merely concluded that the new reports were not based on new findings and information. She did much more than that. The proper officer summarised the reasoning of the panel which had confirmed Dr Kenna's assessment, and summarised the essence of each of the new reports of A/Prof Haber and Dr Porteous. It was not contended that any aspect of her summary was other than fair. The proper officer explicitly noted that in each case there was a difference in the opinions as to causation. But read fairly, the proper officer was saying that the very matters advanced by A/Prof Haber and Dr Porteous had already been considered, and rejected, by the panel. That led to her conclusion that they were not capable of changing the outcome of the previous assessment.
8. True it is that the proper officer said that the new material was not based on any new findings or information which had not been considered by the panel, and in paragraph 31, which may fairly be regarded as the dispositive section of her reasons, said that "therefore" she did not consider them capable of changing the outcome of the previous assessment.
9. However, it would be wrong for the judicial review to proceed on the basis of that paragraph as if it were taken in isolation, and it would be wrong for this appeal to turn on the presence of the word "therefore". The proper officer's reasons are not to be construed minutely and finely with an eye keenly attuned to the perception of error: cf Bojko v ICM Property Service Pty Ltd [2009] NSWCA 175 at [36]. If the effect of the decision is as Dr Chan contends, then most of its paragraphs are otiose.
10. Although paragraph 31 is infelicitously expressed, when it is read in context it is to be understood as summarising the previous reasoning, which was to the effect that the matters now raised by A/Prof Haber and Dr Porteous had already been considered by the panel, such that the proper officer did not consider that they were capable of changing the outcome of the previous assessment.
11. The proper officer may have been wrong about that conclusion. But even if that is so, it was an error as to a matter of fact. The question of fact is whether if a further assessment took place, the new opinions of A/Prof Haber and Dr Porteous would have the capacity to result in a materially different outcome.
12. At no stage in his reasons did the primary judge identify an error of law which was disclosed on the face of the record. For the reasons given above, that does not accord with principle.
13. There would be judicially reviewable error if the proper officer had merely confined her inquiry to whether the reports of A/Prof Haber and Dr Porteous were not based on new findings or information not available to the previous assessors. That is not the question posed by s 62(1A). But that is not what she did. The proper officer very clearly asked precisely the question posed by statute: were the new reports such as to be capable of having a material effect on the outcome of the previous assessment? That question was correctly framed at [18] and answered at [31] and [33]. In order to explain her reasoning process, she summarised the previous assessments and the underlying reasoning, and then turned to the reasoning in the additional reports. That discloses no error. It was not a process which involved a circumscribed approach confined to whether the July reports were based on the same findings and information. I do not consider that the proper officer wrongly fettered her discretion, or had regard to an irrelevant consideration.
14. In his written submissions, Dr Chan alternatively characterised the decision of the proper officer as a constructive failure to exercise jurisdiction, by failing to evaluate a relevant matter, namely, the weight or probative value of the opinions of A/Prof Haber and Dr Porteous. I disagree. I think that the proper officer was asking herself what effect the new opinions would have, given the reasoning process which had rejected the claim that the motor vehicle accident had caused injury to Dr Chan's shoulder.
15. Dr Chan's submissions continued that the proper officer also failed to "determine the critical issue pursuant to s 62(1A), namely, whether the weight or probative value of those opinions was such, as a matter of fact, to be capable of having a material effect on the outcome of the previous assessment" (original italics and underlining). Again I disagree. The proper officer determined that they were not capable of having a material effect on the outcome of the previous assessment. I do agree that this is a matter of fact, but that does not assist Dr Chan's task of identifying judicially reviewable error.

Orders

1. For those reasons I propose that to the extent necessary, there be a grant of leave, that the appeal be allowed and the orders made by the primary judge set aside. In their place, the proceedings for judicial review brought by Dr Chan should be dismissed. There is no reason, so far as I am aware, for costs of the proceedings at first instance and on appeal not to follow the event.
2. I propose the following orders:
3. To the extent necessary, grant leave to appeal, confined to grounds 1, 2, 3 and 6 of the notice of appeal.
4. Appeal allowed.
5. Set aside orders 1-3 made on 18 September 2020, and in lieu thereof, order that the summons filed on 28 April 2020 be dismissed with costs.
6. The first respondent to pay the appellant's costs of the appeal.
7. EMMETT AJA:

Introduction This appeal arises out of a motor accident in December 2014 in which the first respondent, Dr Zion Chan (Dr Chan) suffered injuries. The appellant, AAI Limited (the Insurer), was the compulsory third party insurer in respect of a motor vehicle involved in the accident. The appeal is concerned with the effect of s 62(1A) of the Motor Accidents Compensation Act 1999 (NSW) (the Compensation Act).

The Determinations

1. Dr Chan made a claim under the Compensation Act. The Insurer disputed the extent to which Dr Chan suffered whole person impairment as a result of injuries suffered in the accident. While the Insurer accepted that Dr Chan suffered an injury to his neck caused by the accident it disputed his claim that he suffered an injury to his right shoulder. Since the impairment of Dr Chan was in dispute, his claim was referred for assessment to the third respondent, the State Insurance Regulatory Authority (the Authority). An assessment was carried out in April 2019 by Dr Clive Kenna (the Assessor) who issued a certificate on 3 May 2019. The Assessor accepted that Dr Chan suffered an injury to his neck, which he assessed as giving rise to 5% whole person impairment. However, the Assessor determined that Dr Chan did not suffer any injury to his right shoulder as a result of the accident.
2. Thereafter, Dr Chan applied for a review of Assessor's determination pursuant to s 63 of the Compensation Act. A Review Panel made the same assessment as the Assessor and determined that Dr Chan did not suffer an injury to his right shoulder.
3. Section 62 of the Compensation Act relevantly provides that a matter referred for assessment may be referred again but only on the grounds of the deterioration of the injury or additional relevant information about the injury. Section 62(1A) relevantly provides that a matter may not be referred again for assessment on the grounds of deterioration of the injury or additional relevant information about the injury unless the deterioration or additional information is such as to be capable of having a material effect on the outcome of the previous assessment. Referral of a matter under s 62 is to be by referral to the member of staff of the Authority who is designated by the Authority for the purpose (referred to as the proper officer of the Authority).
4. Dr Chan applied for referral for further medical assessment pursuant to s 62 of the Compensation Act. In support of his application for a further referral, Dr Chan relied on further reports obtained from A/Prof Haber and Dr Porteous (the New Reports). On 3 February 2020, the second respondent, Ms Tami O'Carroll, the proper officer of the Authority (the Proper Officer) determined that the New Reports were not such as to be capable of having a material effect on the outcome of the assessment made by the Review Panel and dismissed Dr Chan's application for his assessment to be referred again. Since the determination of the Proper Officer is in issue, it is necessary to describe her reasons in some detail.

Reasons of the Proper Officer

1. The Proper officer began her determination by saying that the application would not be referred for further medical assessment. She said and that she was not satisfied that there was additional relevant information or deterioration of the injury such as to be capable of having a material effect on the outcome of the assessment by the Review Panel. After setting out the legislation, guidelines, relevant and applicable case law, a brief history of the matter and the submissions of the parties, the Proper Officer set out her reasons.
2. The Proper Officer began her reasons by noting there was no dispute that New Reports were additional relevant information but said that, for the reasons that followed, she was not satisfied that the additional relevant information was such as to be capable of having a material effect on the outcome of "the previous assessment", which must be a reference to the decision of the Review Panel.
3. The Proper Officer recorded that the Assessor had noted, in taking a history, as follows: "… At the time [Dr Chan] experienced neck pain, predominantly right-sided but he states in retrospect, he felt he heard a pop in his right shoulder and this was possibly as a result of the seat belt tightening and jerking him solidly back into the seat. He states in this retrospect, he started to then experience some right-sided pain over the region of the right shoulder, not immediately but about three weeks later". (the Proper Officer's emphasis)
4. The Proper Officer observed that the Assessor had noted that MRI scans in early May 2018 confirmed "an under surface articular tear of the anterior supraspinatus with minimally retracted full thickness rotator cuff tear". She noted that A/Prof Haber recommended surgery to repair the tear, which was undertaken on 6 July 2018. The Proper Officer noted that Dr Chan subsequently developed capsulitis and it was A/Prof Haber's considered view that the right shoulder had a causative element relating to the motor vehicle accident.
5. The Proper Officer observed that the Assessor had also noted that, for one and half years, until the surgery in July 2018, Dr Chan worked with a personal trainer to strengthen the upper body and shoulder girdle but that, due to right shoulder pain becoming progressively worse, began to focus on strengthening other areas of the body. The Proper Officer referred to the opinion of the Assessor as to the possibility that "the injury to the right shoulder occurred elsewhere as it's a closer time fit to the onset of shoulder symptoms than the [motor vehicle accident] itself".
6. The Proper Officer then referred to the Assessor's conclusion "on the issue of causation" that there was "no evidence at that point in time that Dr Chan experienced any symptoms or injuries pertaining to the right shoulder" and that "the right shoulder was only initially recorded almost three years post-accident, around October 2017". The Proper Officer referred to the observation by the Assessor that it was interesting to note that Dr Chan was also working out in the gym and that there was a distinct possibility that he may have incurred an injury to the right shoulder during that rehabilitation process. The Proper Officer quoted from the Assessor as follows: "Hence, I consider that the right shoulder, in view of the time and lack of contemporaneous relationship to the motor vehicle accident, i.e. onset three years later, specifically physical activities relating to surgery and specific activities in relation to the gym, [Dr Chan] could have incurred his right shoulder pathology subsequent to these activities. I considered that there was no contemporaneous information, i.e. there is a causal disconnect between the motor vehicle accident and the onset of right shoulder symptoms." (the Proper Officer's emphasis)
7. The Proper Officer then referred to the reasons of the Review Panel in which it was noted that six days after the motor vehicle accident Dr Chan commenced treatment from a massage therapist that was confined to the neck and there was no mention of any problems with the right shoulder. The Review Panel noted that the first documented evidence of a right shoulder problem was October 2017. The Review Panel also noted the history of Dr Chan that he felt a "pop" in the right shoulder but, in view of the paucity of documentary evidence of right shoulder problems until October 2017 the Review Panel did not accept injury had occurred to the shoulder consequential upon the motor vehicle accident. The Review Panel considered that, had a significant injury occurred to the right shoulder in the motor vehicle accident, there would have been significant pain and limitation of function from the time of the accident but there was a very substantial delay in the development of the right shoulder symptoms. The Review Panel did not consider that it was medically possible for the motor vehicle crash to have involved a significant injury to the shoulder with a period of absence of recorded symptoms from the right shoulder.
8. The Proper Officer then referred to Associate Professor Haber's opinion of 25 July 2019 that Dr Chan suffered rotator cuff tear and capsulitis, which was caused by the motor vehicle accident. She observed that A/Prof Haber noted the Assessor's conclusions on causation and stated as follows: "I feel the complexity of [Dr Chan's] shoulder condition had [been] oversimplified. I suspect this comment is based on his observations regarding the timeframe of symptoms … … it was noted at the time of surgery he had a combination of rotator cuff tear and capsulitis. The literature on this subject is clear. Non-traumatic rotator cuff tear are [sic] extremely rare in people under the age of 60. The most significant factor of developing a tear in that age group was acute trauma. As [Dr Chan] does not participate in high-risk sports, has not had any other history of trauma and has not performed inappropriate repetitive weight-lifting above shoulder height, the only clear risk factor is the motor vehicle accident. It is a well-established fact that these partial thickness tears do gradually deteriorate over time and often become symptomatic once they have become largely [sic]. Overlying this is the development of a secondary capsulitis … This causes increasing pain and severe stiffness which was noted at the time of surgery."
9. Significantly, the Proper Officer then said that, while she acknowledged that A/Prof Haber was Dr Chan's treating specialist and that he had expressed a different view as to causation from that reached by the Review Panel, that opinion was "not based on any new information than what was before the Panel at the time of the assessment". In particular, the Proper Officer said, while A/Prof Haber expressed the opinion that a delay in the presentation of symptoms of a rotator cuff tear was not unusual, the Review Panel was clearly aware of the presence of the tear but nonetheless found that it was not "medically possible for the motor vehicle crash to have involved a significant injury to the shoulder with the period of absence of recorded symptoms from the right shoulder". The Proper Officer also observed that A/Prof Haber had also taken a different view as to the possibility that Dr Chan's gym work may have been causative of his shoulder pathology.
10. Next, the Proper Officer then quoted from the report by Dr Porteous ending with the conclusion of that "it is more likely than not that the subject accident caused an injury to the right shoulder, that later became more symptomatic". She observed that, while Dr Porteous reached a different view as to causation, and in particular as to whether there had been events or factors since the motor vehicle accident that could have caused a rotator cuff tear, that was an issue that was carefully considered by the Assessor and the Review Panel, who reached a different view. The Proper Officer acknowledged that Dr Porteous recorded a history of Dr Chan's receiving a significant impact and hearing a sound in his right shoulder but observed that both the Review Panel and the Assessor took a history that included Dr Chan's description of the accident and both noted that he reported hearing a "sound/pop sound" in his shoulder at the time of the motor vehicle accident.
11. The Proper Officer then said that, while she acknowledged that both Dr Porteous and A/Prof Haber opined that Dr Chan's right shoulder injury was caused by the motor vehicle accident, "these opinions do not appear to be based on any new findings or information than that which was considered by the Panel when reaching their determination". The Proper Officer therefore did not consider that the New Reports were capable of changing the outcome of the assessment by the Review Panel in relation to Dr Chan's right shoulder. She said that there was nothing on the face of the New Reports that appeared to be capable of having any effect on the outcome of the assessment by the Review Panel. The Proper Officer concluded that, for the reasons thus outlined, she was not satisfied that there was additional relevant information such as to be capable of having a material effect on the outcome of the previous assessment by the Review Panel.

Proceedings in the Supreme Court

1. By summons filed in the Common Law Division of the Supreme Court on 28 April 2020, Dr Chan sought judicial review of the decision of the Proper Officer on the basis that she erred by misconstruing s 62(1A) of the Compensation Act, by asking herself the wrong question, by taking into account an irrelevant consideration and by failing to take into account a relevant consideration, in that she determined the application:

• on the basis that the opinions in the New Reports were not based on any new information that was not before the Review Panel at the time of the assessment and could not constitute additional information such as to be capable of having a material effect on the outcome of the previous assessment; and
• by considering and deciding whether the opinions in the New Reports would in fact have a material effect on the outcome of the previous assessment instead of considering whether the opinions were such as to be capable of having a material effect on the outcome of the previous assessment.

1. For reasons published on 18 September 2020, a judge of the Common Division (the primary judge) ordered that the decision of the Proper Officer be set aside and that the matters the subject of the decision be referred to the Authority for determination of Dr Chan's application according to law. The primary judge also ordered the Insurer and the Authority to pay Dr Chan's costs.

The Appeal

1. By notice of appeal filed on 13 October 2020, the Insurer now appeals from the orders made by the primary judge. The grounds of the appeal may be summarised as follows: 1. the primary judge erred as to the proper construction of s 62(1A); 2. the primary judge erred in finding that all that is required for an applicant for a further medical assessment is that the additional information on which the applicant relies gives rise to a "prospect" or a "possibility" with a different outcome from the previous medical assessment; 3. the primary judge erred in finding that any "additional information" that gives rise to the possibility of a different outcome from the previous assessment is information that could have a material effect on the outcome of the previous assessment; 4. the primary judge erred in confining or setting at nought the "residual discretion" that a proper officer has in dealing with an application for further medical assessment; 5. the primary judge misconstrued the Proper Officer's reasons for dismissing Dr Chan's application for further medical assessment; and 6. the primary judge erred in finding that the Proper Officer applied the wrong test by asking whether the additional medical material would rather than could have a material effect on the outcome of the previous assessment.
2. It is common ground that the New Reports are "additional relevant information" about Dr Chan's alleged right shoulder injury, for the purposes of s 62 of the Compensation Act. The question in the appeal is the meaning and scope of the words "such as to be capable of having a material effect on the outcome of the previous assessment" as appearing in s 62 of the Compensation Act. Section 62(1A) must be construed on the basis that it is to operate as a filter or gateway and the officer of the Authority who deals with the reference of matters for assessment under s 62 acts as a gatekeeper.
3. While the word "may" is used twice in s 62, there is no discretion reserved to the Authority or any officer of the Authority in exercising powers or functions under s 62. Under s 62(1) a matter may be referred again but only on the specified grounds. Under s 62(1A) a matter cannot be referred again for assessment unless the relevant ground has a specific characteristic, namely, it is such as to be capable of having a material effect on the outcome of the further assessment.
4. The language of s 62(1A) might fairly be regarded as calling for an objective approach. However, the parties accepted that the exercise to be conducted by the Proper Officer required an evaluative judgment in relation to the New Reports. Judicial review of such a judgment is limited to determining whether the Proper Officer's opinion has been properly formed according to law. Thus, the characterisation of the additional relevant information is a matter to be considered by the Proper Officer and not one to be determined by a court afresh in a judicial review application. [1]

The Question

1. There would be judicially reviewable error if the Proper Officer had merely considered whether the New Reports were based on new findings or information that were not available to the Assessor or the Review Panel. That is not the question posed by s 62. However, while the Proper Officer clearly asked precisely the question posed by the statute and considered the New Reports, it is not entirely apparent that she undertook an evaluation of them to determine whether they were capable of having a material effect on the outcome of the previous assessment. That required an evaluation of the capability of the New Reports to affect the previous assessment. In circumstances where it is accepted that the New Reports constitute additional relevant information but were not based on any new findings or information that was not considered by the Review Panel, the Proper Officer was required to consider such matters as the standing of the authors of the opinions expressed in the New Reports and the respective strengths and weaknesses and cogency of their arguments.

Conclusion

1. I have had the advantage of reading in draft form the reasons of Leeming JA for concluding that the primary judge erred and that leave to appeal from his Honour's orders should be granted. I agree with Leeming JA that, although the reasons of the Proper Officer are infelicitously expressed, a fair reading of her reasons indicates that she was saying that the matters raised by the New Report had already been considered by the Review Panel and were not capable of changing the outcome of the previous assessment. The Proper Officer framed the question correctly and answered that question. I agree with Leeming JA that summarising the previous assessments and the underlying reasoning, followed by consideration of the reasoning contained in the New Reports involved no error of approach on the part of the Proper Officer.
2. It follows that the primary judge erred in granting relief. I agree with the orders proposed by Leeming JA.

Endnote

1. See QBE Insurance (Australia) Ltd v Miller [2013] NSWCA 442 at [31] and [36]. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 25 February 2021