Subsequent Medical Assessments
84At the time the proceedings commenced before Levy SC DCJ (the first day of hearing being 21 May 2012), there was a medical assessment that was or had been impugned. As set out at paragraph [10] above and following, there was originally a certificate that whole person impairment was greater than 10%, which was subject to a further assessment involving a determination that the whole person impairment was not greater than 10%. A review by the plaintiff was refused on 24 April 2009.
85Davies J quashed that determination on 18 December 2009. The District Court proceedings commenced in 2010, at which time there was an extant certificate determining that the whole person impairment was greater than 10%.
86The orders issued by Davies J on 18 December 2009 were valid until set aside by the Court of Appeal on 20 April 2011. As a consequence, the status of the certification of whole person impairment altered on 20 April 2011 (assuming the status is that which has been certified by a Medical Assessor and/or Review Panel).
87When, on 21 May 2012, Levy SC DCJ commenced hearing the interlocutory application, the extant medical assessment certified for a whole person impairment of not greater than 10%. This remained the case until Levy SC DCJ issued orders on 15 October 2012.
88On 15 October 2012, as earlier stated, Levy SC DCJ referred the matter for a further medical assessment pursuant to the terms of s 62(1)(b) of the Motor Accidents Compensation Act. That further medical assessment resulted in a determination that the plaintiff had sustained a whole person impairment of greater than 10%. That last mentioned determination was certified on 18 December 2012.
89The defendant applied for a review from that determination, which review, as earlier stated, confirmed the whole person impairment certification and purported to certify that it was greater than 10%.
90The last review was a review for which the defendant applied. The defendant applied for that review after the determination of 18 December 2012, which determination was as a result of the referral by Levy SC DCJ under s 62(1)(b) of the Motor Accidents Compensation Act.
91Thereafter, those certificates were, by consent, quashed in this Court and determinations (medical assessment and/or review) issued that certified a whole person impairment of not greater than 10% (see above).
92The analysis previously summarised of the jurisdiction and powers of the District Court applies, with probably greater force, to an inferior tribunal other than a court. An order made by an inferior tribunal, exercising judicial power, that has no authority to make an order of the kind in question is a nullity: Attorney-General (NSW) v Mayas Pty Ltd (1988) 14 NSWLR 342 at 357, per McHugh JA. See also Re Building Workers Industrial Union of Australia; Ex parte Pillar [1991] HCA 50; (1991) 174 CLR 263, per Brennan, Gaudron and McHugh JJ.
93Similarly, in Pelechowski, supra, at [27] and following, Gaudron, Gummow and Callinan JJ remarked, citing Attorney-General (NSW) v Mayas Pty Ltd, in the following terms:
"[27] In United Telecasters Sydney Ltd v Hardy, Samuels AP (with whom Clarke and Meagher JJA agreed), in giving the judgment of the Court of Appeal, applied to the District Court the principle which, in Attorney-General (NSW) v Mayas Pty Ltd, McHugh JA had explained as follows:
If an inferior tribunal exercising judicial power has no authority to make an order of the kind in question, the failure to obey it cannot be a contempt. Such an order is a nullity. Any person may disregard it. Different considerations arise, however, if the order is of a kind within the tribunal's power but which was improperly made. In that class of case, the order is good until it is set aside by a superior tribunal. While it exists it must be obeyed.
[28] In United Telecasters, the Court of Appeal held that the District Court did not have power to order the prior restraint of a threatened contempt by a television station in broadcasting material which might identify the accused in a trial before that court. The Court of Appeal also held that the District Court did not have power to accept undertakings in the same terms. In the latter connection, the court referred to the decision of this court in Thomson Australian Holdings Pty Ltd v Trade Practices Commission. It followed, as Samuels AP put it, that the order in question "was a complete nullity and bound no one" and could not found a proceeding for contempt. Further, his Honour held that:
[s]ince [the District Court] had no power to issue an injunction in those terms, it can have no power to accept an undertaking in the same terms. Since the undertaking was clearly unenforceable I would dismiss the claim for a declaration that [United Telecasters] was guilty of a contempt for breaching an undertaking to the court."
94While the foregoing relates to the powers of the District Court, the analysis applies equally to an inferior tribunal exercising what would ordinarily be called judicial power. The Medical Assessors exercise a power or jurisdiction that resolves the relative rights and obligations of individual members of society as prescribed by law. Certainly, the medical assessments are part of the process of the resolution of what would ordinarily be termed a justiciable controversy between the parties.
95The distinction drawn in Mayas, supra, and cited with approval by the High Court in Pelechowski, between orders of a kind that are within a tribunal's power but which were improperly made, on the one hand, and an exercise of power for which the tribunal has no authority, on the other hand, derives from the difference between a want or excess of jurisdiction.
96Not uncommonly, the terms "excess of jurisdiction" and "want of jurisdiction" are used interchangeably. When strictly used, they refer to different processes. They are not terms of art, but are used to describe acts of inferior courts or tribunals performed in breach of the conditions, which circumscribe the powers and authorities of those courts or tribunals. A want of jurisdiction generally occurs when a court or tribunal does an act which is beyond its general power or authority. An excess of jurisdiction occurs when it does an act, ordinarily within its general power or authority, but performed in breach of the conditions which authorise its performance. See Yirrell v Yirrell [1939] HCA 33; (1939) 62 CLR 287 at 294, 304; R v Commonwealth Conciliation & Arbitration Commission; Ex parte Australian Workers' Union [1957] HCA 97; (1957) 99 CLR 505 at 511; R v The Judges of the Federal Court of Australia; Ex parte WA National Football League (Inc) [1979] HCA 6; (1979) 143 CLR 190 at 201, 202, 230; R v Ross-Jones; Ex parte Green [1984] HCA 82; (1984) 156 CLR 185 at 194, 217; Commissioner for Railways (NSW) v Locke [1970] HCA 20; (1970) 122 CLR 479 at 482; Brown v Rezitis [1970] HCA 56; (1970) 127 CLR 157 at 169; and Hockey v Yelland [1984] HCA 72; (1984) 157 CLR 124,at 130.
97The foregoing cases were recited, with authority, in the dissenting judgment of McHugh J in Public Service Association (SA) v Federated Clerks Union of Australia (No 1) [1991] HCA 33; (1991) 173 CLR 132 at 164. The fact that the judgment of McHugh J was in dissent does not detract from the analysis of his Honour, which analysis accords with the underlying principles accepted by the whole of the Court in that judgment.
98From the foregoing, one can discern a principle that an inferior tribunal exercising a power of a kind exercised by the Medical Assessors (and Review Panel), if acting in want of jurisdiction, performs an act that is a nullity and can be treated by all parties as if it did not occur. On the other hand, if the Medical Assessors conduct a medical assessment, which ordinarily would be within jurisdiction, in a manner that ignores conditions or limitations on the exercise of that power, assuming the exercise is bona fide, the certificate is, at least arguably, valid until set aside or quashed.
99An issue arises as to the reconciliation of the provisions of s 61(6) of the Motor Accidents Compensation Act, on the one hand, and the provisions of s 132(1) of the Motor Accidents Compensation Act, on the other hand. It is now well established that the process of statutory construction should be one that implements the purpose of the legislature, as evidenced by the terms of the legislation, in a manner which achieves its harmonious goals: Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355.
100The legislation, on the one hand (s 61) allows a court, in certain restricted circumstances, to determine for itself the degree of whole person impairment without a further assessment of a Medical Assessor. On the other hand (s 132(1)), it disentitles a court from awarding damages where there is a dispute about the requisite degree of permanent impairment, unless the degree of permanent impairment has been assessed by a Medical Assessor.
101In the usual situation, there is no inconsistency between the two provisions. Arguably, there may be an inconsistency in a situation where there has been a denial of procedural fairness, which has occasioned a court to reject a medical assessment.
102Even in the exceptional case of a situation where a court has rejected a medical assessment on the basis of a denial of procedural fairness and proceeded to assess, itself, the degree of whole person impairment, the two provisions (ss 61 and 132) are strictly reconcilable.
103The purpose of the legislation has been the subject of much comment. The legislature has sought to implement an informal process for the assessment by medical experts of injuries arising from accidents and to expedite the resolution and determination of claims for damages arising from motor vehicle accidents. The legislature has, under the legislation, allowed for some matters to be determined by courts.
104In an exceptional case, where the court rejects a medical assessment on the basis of a denial of procedural fairness, the legislature has allowed the court to proceed, where appropriate, to assess for itself the degree of whole person impairment. That is the manner in which the statute operates, including s 61 of the Motor Accidents Compensation Act.
105The terms of s 132 prohibit a court from awarding non-economic damages, in circumstances where there is a dispute about the degree of permanent impairment, unless that permanent impairment has been assessed by a Medical Assessor. In order for a court to exercise the jurisdiction contained in s 61(4) of the Motor Accidents Compensation Act, there must be in existence a certificate by a Medical Assessor certifying the degree of permanent impairment as one that is, or is not, greater than 10% whole person impairment.
106Thus, strictly, where a court rejects a medical assessment under s 61(4) of the Motor Accidents Compensation Act, the degree of permanent impairment had been assessed by a medical assessor, and rejected. In that circumstance, the provisions of s 132(1) of the Motor Accidents Compensation Act would have been satisfied.
107Similarly, in the exceptional situation that a court would proceed to assess, for itself, the whole person impairment under the provisions of s 61(6), there must have already been an assessment by a Medical Assessor. That the certificate rejected under s 61(4) of the Motor Accidents Compensation Act is not the basis upon which the court would proceed under s 132(1) of the Motor Accidents Compensation Act is confirmed by the reference in s 61(6) to the provisions of s 133 of the Act.
108None of the foregoing detracts from the exceptional nature of a practice whereby the court would substitute its own determination as to the degree of permanent injury to that of a Medical Assessor (including a Review Panel). The ordinary course would be that the certificate as to medical assessment would, in accordance with s 61(2), be conclusive evidence of the degree of whole person impairment.
109In a case where a court, on a ground of denial of procedural fairness, rejects such a certificate, the ordinary course would be that the court would, pursuant to s 62(1)(b), refer the matter for further assessment; stay the proceedings pending that assessment; and, once the further assessment has been certified, proceed on the basis of what has become the conclusive evidence as to the degree of whole person impairment.
110In very exceptional cases, the court will proceed itself to assess, in accordance with s 133 of the Act, the degree of whole person impairment.
111As already stated, on 15 October 2012, Levy SC DCJ, having come to a conclusion that the thoracic spine fractures were occasioned, wholly or substantially, by the motor vehicle accident, referred, pursuant to the terms of s 62(1)(b) of the Motor Accidents Compensation Act, the matter for a further assessment. Such an order did not involve the provisions of either s 61(4) or s 61(6) of the Motor Accidents Compensation Act. It was an exercise under s 62 of the Act.
112Again, as already stated, the determination by Levy SC DCJ as to the causation of the thoracic spine injuries was an aspect of the proceedings in the District Court that was essential for his Honour to determine, in order to assess properly the economic damage and in order to determine whether he should refer the matter for a further assessment under s 62(1)(b) of the Motor Accidents Compensation Act.
113Further, as has already been stated, the medical assessment that was before Levy SC DCJ was conclusive evidence only to the extent of the certification, namely, a degree of whole person impairment and, under the statute, the determination of the Medical Assessor and/or Review Panel is not conclusive on any issue or matter that gave rise to that which is certified.