Allianz Australia Insurance Limited v Crazzi and Others

Allianz Australia Insurance Limited v Crazzi and Others - [2006] NSWSC 1090 - NSWSC 2006 case summary — Zoe

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The Solicitors Correspond Again with the Principal Claims Assessor 85 On 24 March 2006, Mr Crazzi's solicitors applied to the Principal Claims Assessor under s.94(6) MAC Act for the issue of a replacement certificate correcting what was submitted to be an obvious error made by Assessor Flynn in refusing to award interest. Reliance was placed on the fact that the settlement offer of Allianz post-dated the hearing on 7 December 2005 and was said to have overlooked s.137(4)(a)(iv) MAC Act (TB319-321). 86 On 30 March 2006, the Motor Accident Assessment Service of the MAA notified the solicitors for Allianz that an appointment had been made for Mr Crazzi to be examined by Dr Michael Long, general surgeon, in Brisbane on 28 April 2006 (TB322). 87 By letter dated 27 March 2006, the Principal Claims Assessor requested the solicitors for Allianz to provide submissions with respect to the latest s.94(6) application by 7 April 2006 with the view to a review of the file on 13 April 2006 and a subsequent determination of the application (TB323). 88 On 4 April 2006, the solicitors for Mr Crazzi requested the Principal Claims Assessor to make a determination of the s.94(6) application in time to permit Mr Crazzi a period of 21 days from 23 March 2006 (that is, 18 April 2006) in which to determine whether to accept under s.95 the assessment contained in the certificate of 23 March 2006 (TB328). 89 By letter dated 7 April 2006, the solicitors for Allianz indicated to the Principal Claims Assessor that it was not accepted that a valid s.94 certificate was issued on 23 March 2006 and that, in any event, no certificate under s.94(6) MAC Act should issue (TB329). By further letter dated 12 April 2006, the solicitors for Allianz submitted that the Principal Claims Assessor ought not proceed with the s.94(6) application because Mr Crazzi had failed to attend two medical appointments arranged pursuant to the application for further medical assessment. Allianz relied upon s.86(3) and (4) MAC Act in this respect (TB330). 90 On 12 April 2006, the Principal Claims Assessor declined Mr Crazzi's application under s.94(6) MAC Act and stated (TB332-333): " The validity of the 23 March 2006 assessment

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Principal Findings of Fact 95 At this point, it is appropriate to summarise the principal findings of fact relevant to these proceedings. 96 Mr Crazzi's claim was referred to Assessor Flynn for claims assessment under Part 4.4 MAC Act. On 1 November 2005, the parties agreed to the fixing of an assessment hearing to take place on 7 December 2005. A timetable for further procedural steps was fixed by the Assessor. 97 On 1 December 2005, Allianz applied to adjourn the assessment conference upon the basis of the application for further medical assessment of Mr Crazzi. Assessor Flynn considered the adjournment application and refused it. This was a discretionary determination and it was open to the Assessor to decline to adjourn the assessment conference. There was no provision in the MAC Act or Claims Assessment Guidelines which required an adjournment of an assessment conference in these circumstances. 98 On 7 December 2005, the assessment conference proceeded to hearing before Assessor Flynn. Once again, counsel for Allianz made application to adjourn the hearing upon the basis of the application for further medical assessment. The Assessor refused to adjourn the hearing and proceeded with it. Once again, this was a discretionary determination by the Assessor. It was open to him to refuse to adjourn the assessment conference. There was no statutory provision which required the grant of an adjournment. Although it was not necessary for the Assessor to give written reasons for refusing that adjournment application, the Assessor indicated a willingness to do so at the request of counsel for Allianz. 99 The assessment conference proceeded with evidence being taken and submissions made. The written and oral submissions touched all issues falling for determination with respect to damages and costs except Mr Crazzi's claim for interest. When this issue was addressed by Mr Crazzi's counsel, the claim for interest was deferred on the application of counsel for Allianz until the Assessor had determined Mr Crazzi's claim for damages. Counsel for Mr Crazzi agreed with this approach and the Assessor accepted that the matter would proceed on that basis. 100 The following elements were implicit in this agreement:

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The Approach to be Taken Where an Issue is Left Outstanding Following the Making of Final Orders by a Court, Tribunal or Administrative Decision Maker 112 From time to time, an issue is left outstanding following the making of final orders by a court, tribunal or administrative decision maker. In the case of a court, there is a power, in certain circumstances, to reopen or set aside an order made before or after entry of orders: Autodesk Inc v Dyason [No. 2] (1992-1993) 176 CLR 300 at 302, 322; De L v Director-General, NSW Department of Community Services [No. 2] [1997] 190 CLR 207 at 215 and DJL v Central Authority (2000) 201 CLR 226 at 240ff. A power to reopen, confined to "extremely rare" or "quite exceptional" circumstances, exists where a trial judge is satisfied that a decision is affected by an obvious error of law so that it is both open and necessary to correct the position: Lunn v The Cardiff Coal Company (No. 2) [2003] NSWSC 25 at paragraphs 3-4; Standard Commodities Pty Limited v Society Socinter department Centragel [2005] NSWSC 493 at paragraphs 7-8. 113 A judge is not functus officio after announcing a verdict and making costs orders if the duties in the case are not otherwise completed: NSW Insurance Ministerial Corporation v Elkins (1998) 45 NSWLR 8 at 12. 114 The slip rule is available as a means of correcting a clerical mistake or an error arising from an accidental slip or omission in a judgment or order or in a certificate: Part 36.17 Uniform Civil Procedure Rules; L Shaddock & Associates Pty Limited v Parramatta City Council [No. 2] (1983) 151 CLR 590 at 594-5; Gould v Vaggelas (1983-1985) 157 CLR 271 at 274-275; Storey & Keers Pty Limited v Johnstone (1987) 9 NSWLR 446 at 449-454; Elyard Corporation Pty Limited v DDB Needham Sydney Pty Limited (1995) 61 FCR 385 at 389-391; Sakr v Mercantile Mutual Insurance [2000] NSWCA 266 at paragraph 47ff; Roads and Traffic Authority v Palmer (No. 2) [2005] NSWCA 140 at paragraphs 23-25; J Aron Corporation v Newmont Yandal Operations [2006] NSWSC 849 at paragraph 57ff. Reference will be made below to a number of these decisions in which the statutory slip rule was applied by courts in circumstances where there was either a failure to argue, or a failure to determine, a claim for interest prior to the making of final orders. 115 From time to time, a court will reserve to the parties liberty to apply. The reservation of liberty to parties to apply to a court is a provision directed essentially to questions of machinery which may arise from the implementation of a court's orders. They include cases where a court may need to supervise the enforcement of orders after they have been made. Orders of this kind relate to enforcement and not to statements of the rights of the parties: Abigroup Limited v Avignano (1992) 39 FCR 74 at 88; Bonnici v Ku-Ring-Gai Municipal Council [2001] NSWSC 1124 at paragraph 165ff. 116 In some cases, a court will give judgment in a specified sum by way of damages plus costs and interest and will reserve for submission (in the absence of agreement) the precise orders to be made in respect of costs and interest: see, for example, PM Sulcs & Associates Pty Limited v Daihatsu Australia Pty Limited [2001] NSWSC 798 at paragraph 1. The court defers the hearing of a claim for interest and the opportunity remains, as part of the court order, for the claim for interest to be heard and determined by the court. In such a case, the mechanism of liberty to apply is not utilised nor is the court exercising the power to reopen or the power to correct a mistake or error under the slip rule. 117 In the case of a tribunal or administrative decision maker, the question whether a decision may be reopened depends, in the first instance, upon the possible application of s.48 Interpretation Act 1987 and, the proper construction of the statutory scheme under which the relevant administrative decision maker operates. Prior to the decision of the High Court in Bhardwaj, there were recognised circumstances in which an administrative decision maker could reopen a decision: see, generally, Campbell, "Revocation and Variation of Administrative Decisions" (1996) 22 Monash ULR 30; Allars, "Perfected Judgments and Inherently Angelical Administrative Decisions: The Powers of Courts and Administrators to Reopen or Reconsider Their Decisions" (2001) 21 Australian Bar Review 60. Section 48 Interpretation Act 1987 118 Section 48 Interpretation Act 1987 is in the following terms:

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(2) If an Act or instrument confers or imposes a function on a particular officer or the holder of a particular office, the function may be exercised (or, in the case of a duty, shall be performed) by the person for the time being occupying or acting in the office concerned." 119 Both Mr Robertson SC and Mr Petty SC submit that s.48 Interpretation Act 1987 has no application to this case so as to permit Assessor Flynn to exercise, from time to time, the power to issue a certificate and statement of reasons under s.94 MAC Act. 120 Mr Robertson SC submits that the power under s.94 is adjudicative in nature, affecting rights or liabilities, so that it can only be exercised once: Firearm Distributors Pty Limited v Carson (2001) 2 QdR 26 at 32 [40]. This construction is fortified, so Allianz submits, by the statutory avenue under s.94(6) to the Principal Claims Assessor in the case of "obvious error". Accordingly, Allianz submits that a contrary intention appears so that s.48 has no application to the s.94 decision-making function: s.5(2) Interpretation Act 1987. 121 Mr Petty SC submits that, where a valid certificate and statement of reasons has been issued under s.94, then an assessor is not empowered to revisit the matter at another time. However, Mr Petty SC submits that this position does not arise where there is denial of procedural fairness constituting jurisdictional error so that, in law, no s.94 certificate or statement of reasons has issued: Bhardwaj at 616 [53], 647 [156]. He submits that Assessor Flynn performed his duty under s.94 once only - when he issued the s.94 certificate and statement of reasons on 23 March 2006. 122 I am satisfied that s.48 Interpretation Act 1987 has no application to allow an assessor to revisit the issue of a certificate and statement of reasons under s.94 MAC Act. That power is to be exercised once only by the assessor. Where an assessor exercises that jurisdiction and issues a s.94 certificate and statement of reasons, the only circumstance in which he or she may revisit the assessment is where s.94(6) applies and the Principal Claims Assessor refers the matter back to the assessor. 123 However, an administrative decision which involves jurisdictional error is regarded, in law, as no decision at all: Bhardwaj at 614-615 [51], 618 [63], 646-647 [152]; Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476 at 506 [76]; Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 78 ALJR 992 at 997 [29]. Prima facie, the unavailability of s.48 Interpretation Act 1987 does not stand in the way of an assessor, after jurisdictional error, performing his or her statutory function under s.94 MAC Act. The question which then arises is whether the statutory scheme under the MAC Act ought be constructed so as to prevent the assessor from taking this course which is otherwise open in accordance with the principles in Bhardwaj, Plaintiff S157/2000 and SGLB.

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If there is a clerical mistake, or an error arising from an accidental slip or omission, in a judgment or order, or in a certificate, the court, on the application of any party or of its own motion, may, at any time, correct the mistake or error." 132 There is some similarity in the language used in the statutory slip rule concerning New South Wales courts (Part 36.17), the slip rule relating to New South Wales and Commonwealth administrative tribunals (s.87; s.43AA) and that applicable to claims assessment under the MAC Act (s.94(6); Chapter 17, Claims Assessment Guidelines). 133 There are, however, some important differences. Firstly, the statutory slip rule concerning administrative tribunals and decision makers requires an "obvious error" before corrective action may be taken. The slip rule affecting courts does not contain this additional element requiring an error to be "obvious". Secondly, it may be seen that the corrective power under s.87(4) Administrative Decisions Tribunal Act 1997 and s.43AA(4) Administrative Appeals Tribunal Act 1975 (Cth) may be exercised by the President or by the member who presided at the proceedings to which the decision relates. The corrective power under s.94(6) MAC Act is to be exercised by the Principal Claims Assessor who may issue, or approve of the claims assessor issuing, a replacement certificate or statement of reasons to correct the obvious error. Thirdly, the slip rule concerning claims assessment is to be found partly in the Act (s.94(6)) and partly in subordinate legislation (Chapter 17 of the Guidelines). 134 The word "obvious" is defined in The Macquarie Dictionary as meaning "clearly perceptible or evident; easily recognised or understood; open to view or knowledge: an obvious advantage". The Oxford English Dictionary defines "obvious" as meaning "plain and evident to the mind; perfectly clear or manifest; plainly distinguishable; clearly visible". 135 From time to time, terms such as "patent error" or "manifest error" are used in statutes which allow correction of a record or decision without resort to court proceedings. In Riley v Parole Board of NSW (1985) 3 NSWLR 606 at 616, Kirby P said with respect to the meaning of "patent error" in s.23 Probation and Parole Act 1983 (which permitted the Parole Board to correct a patent error by a sentencing court): "It is important to reflect upon why provision has been made for action on a 'patent' error. Clearly, this is to distinguish a case where correction involves a matter of substance and merit (requiring that any intervention be by an appellate court) from a case of simple and manifest mistake (where the Board can properly intervene to do justice without illegitimately invading the judicial province). The procedure envisaged in s 23(1) is not to replace the facility of appeals." 136 In Larkin v Parole Board (1987) 10 NSWLR 57, Kirby P said at 64: "The word 'error' has been described, in other contexts, as one of vague connotation: cf Lord Goddard CJ in Simpson v Peat [1952] 2 QB 24 at 27. It may, depending on the context, describe both a careless act and one which, though mistaken, was not careless (loc cit). What is involved is the appearance of something altogether different from that which might have been expected: cf SS Knutsford Ltd v Tillmanns & Co (1908) 99 LT 399 at 401." 137 In Larkin v Parole Board, McHugh JA referred to the common law distinction between patent and latent ambiguities in documents (at 69-70). In construing the term "patent error", McHugh JA (Samuels JA agreeing) said at 70-71: "Although the expression 'patent error' is often used by judges to describe appealable errors, there is very little case law on the term in a legislative context. In Hanna v Mynhardt 1935 TPD 63, Tindall and Barry JJ, sitting in the Transvaal Provincial Division of the Supreme Court of South Africa, considered the term 'patent error' in a section empowering a magistrate to 'correct patent errors in any judgment'. Their Lordships held (at 66-67) that a patent error meant 'an error which is patent on the face of the record'. However, in Riley v Parole Board of New South Wales (1985) 3 NSWLR 606 Kirby P speaking of s 23(1) of the Act, thought that it was permissible, to some extent, to go beyond the record. He said (at 616): '… Inferences which might properly be drawn were, it was agreed, potentially within the expression 'patent error' as used in s 23(1) of the 1983 Act. What is required is that the error be clear, not that any particular formulation of words should have been used. The statute is seeking to delineate cases where it is necessary to have resort, in any significant respect, beyond the face of the judgment imposing the sentence, although if necessary inferences may be taken into account, some understanding of the background facts and ordinary practices may be a permissible supplement to the record itself.'

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I agree that s 23 requires that the error must be clear. But I do not see anything in s 23 or its context which precludes the Board from going, wholly or partly, beyond the terms of the judgment of the court imposing the sentence. I think that, in its context in s 23, 'patent' simply means manifest or evident. The distinction which s 23 makes is not between the record or judgment of the Court and external material, but between obvious and arguable errors. If the Board is satisfied that the Court has made a manifest error, it may exercise its powers under s 23 even though it could reach its conclusion only by considering material outside the judgment or record of the Court." 138 Thus, in construing the term "patent error" in its statutory context, McHugh JA in Larkin v Parole Board concluded that the Parole Board could consider material outside the judgment or the record of the Court to determine whether such error existed. It is important to observe, however, that s.23(1)(b) Probation and Parole Act 1983 applied where "the Board … is satisfied that a court has made a patent error in specifying a non-parole period for a prisoner" and s.23(2) provided that "patent error" included "a mistake of fact and an error in calculation". The statute did not require (for understandable reasons) the "patent error" to be contained in a particular document or record. By way of contrast, s.94(6) MAC Act applies if the Principal Claims Assessor "is satisfied that a certificate as to an assessment or a statement attached to the certificate contains an obvious error" The "obvious error" must be contained in the certificate or statement of reasons. 139 In Promenade Investments Pty Limited v State of New South Wales (1992) 26 NSWLR 203, Sheller JA (Mahoney and Meagher JJA agreeing) considered the meaning of the term "manifest error of law on the face of the award" in s.38 Commercial Arbitration Act 1984. Sheller JA said at 225: "The expression 'error of law on the face of the award' is one of a type well-known to courts. The award having been examined the question is whether there is apparent (and such is the denotation of the word 'manifest') an error of law. 'Manifest error' is an expression sometimes used in reference to reasons given by judges or the approach taken by juries: see, eg, s 107(c)(iii) of the Supreme Court Act 1970 and the judgments of Kirby P in Azzopardi v Tasman UEB Industries Ltd (at 151) and Otis Elevators Pty Ltd v Zitis (1986) 5 NSWLR 171 at 181. It is used to indicate something evident or obvious rather than arguable: see generally per McHugh JA in Larkin v Parole Board (1987) 10 NSWLR 57 at 70-71." 140 In Merza v Registrar of the Workers Compensation Commission [2006] NSWSC 939, Hoeben J considered the construction of s.327(3)(d) Workplace Injury Management and Workers Compensation Act 1998 which allowed for an appeal against a medical assessment upon the ground that the medical assessment contains a "demonstrable error". His Honour observed, at paragraph 35, that error alone is not sufficient to constitute "demonstrable error". Hoeben J said at paragraph 39: "I do not propose to, nor is it necessary, that I define what is 'demonstrable error' for the purposes of s327 of the Act in an exhaustive way. It is sufficient for the purposes of this matter that I conclude that 'demonstrable error' is an error which is readily apparent from an examination of the medical assessment certificate and the document referring the matter to the AMS for assessment." 141 The term "accidental omission" in the statutory slip rule relating to courts has been construed as extending to a failure by a legal representative and/or judicial officer to consider and determine a claim for interest arising in civil proceedings: Shaddock at 594-5, 597; Gould v Vaggelas at 274-275; Storey & Keers at 450-451, 452-453; Sakr at paragraphs 47-71; RTA v Palmer (No. 2) at paragraphs 23-25. 142 Clause 17.3.2 of the Claims Assessment Guidelines states that an example of an obvious error in a s.94 certificate or statement of reasons is where "there is an error arising from an accidental slip or omission". Do the cases concerning the application of the statutory slip rule to a claim for interest in court proceedings support a construction of s.94(6) MAC Act and Chapter 17 of the Claims Assessment Guidelines so as to include, as an "obvious error", a circumstance where the parties agree at an assessment conference that a claim for interest should be deferred for later consideration, and the assessor accepts this approach, but overlooks this issue and proceeds to purportedly issue a s.94 certificate and statement of reasons? At this point, it is appropriate to note a restriction which has been placed upon the application of the statutory slip rule in court proceedings. In Storey & Keers, McHugh JA (as his Honour then was) said at 453E-F: "The rationale of the slip rule also requires that an omission or mistake should not be treated as accidental if the proposed amendment requires the exercise of an independent discretion or is a matter upon which a real difference of opinion might exist: cf Brew v Whitlock (No. 3) [1968] VR 504 at 506. In general the test of whether a mistake or omission is accidental is that applied by Lord Herschell in Hatton v Harris [1892] AC 547 at 558 if the matter had been drawn to the court's attention would the correction at once had been made?" 143 The submissions before me did not refer to these decisions concerning the statutory slip rule in court proceedings. Mr Robertson SC did not advance a construction of s.94(6) which would have allowed the failure to hear and determine the claim for interest to be remedied under that provision (T35.52-37.54). Mr Robertson SC submitted that "whether something is or isn't an obvious error would involve matters of judgment rather than perhaps hard-edged facts" (T37.21). Mr Petty SC submitted that s.94(6) "is plainly not a plenary power which is capable of correcting all errors" and that this case "demonstrates somewhat painfully that an error may be serious but not obvious" (T49.31). He accepted that the examples contained in Chapter 17 of the Claims Assessment Guidelines threw light on the meaning of the term "obvious error" (T49.44). Mr Petty SC emphasised that s.94(6) required that the error be obvious to the Principal Claims Assessor and that there are practical limitations upon the steps to be taken by that officer, who cannot step into the shoes of the claims assessor (T49.58-50.4). Mr Petty SC accepted that "the ambit of the obvious omission provision is intended to be the traditional slip rule type of power" (T49.53). He emphasised also that the "obvious error" had to be contained in the certificate or statement of reasons and that it cannot have been intended that the Principal Claims Assessor would, in a case such as this, undertake a type of fact-finding function as to whether there had been a departure from the principles of procedural fairness (T50.12). Mr Petty SC concluded his submissions on this issue as follows (T50.35): "We submit section 94(6) is in its terms confined to obvious errors or omissions contained in the certificate or statement of reasons and it does not extend to all errors. It certainly does not extend to serious errors of the type here involved. It really is nothing more than a variant of the slip rule." 144 The proper construction of the term "obvious error" in s.94(6) MAC Act requires identification of the meaning of the term in its statutory context: Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at 381 [69], 384 [78]. In my view, errors caught by this provision are errors which must be readily apparent to the Principal Claims Assessor on the face of the certificate and/or statement of reasons. The error must be clear and not merely arguable. The words of s.94(6) confine the attention of the Principal Claims Assessor to the certificate and/or statement of reasons to determine whether she is satisfied that an "obvious error" is contained therein. Unlike the provision considered in Larkin v Parole Board, it is not open to the Principal Claims Assessor to inquire beyond those documents to determine whether an "obvious error" exists. 145 The use of the word "may" in s.94(6) indicates that a discretionary power is reposed in the Principal Claims Assessor: s.9(1) Interpretation Act 1987. An order under the slip rule is not available as a matter of course and there is a discretion in the Court to refuse an order: Shaddock at 597; Gould v Vaggelas at 275-276. 146 I am satisfied that s.94(6) does not extend to a situation, such as in the present case, where the Assessor has overlooked a claim for interest and has purported to issue a certificate and statement or reasons determining the balance of the claim. 147 However, even if it was open to conclude that what occurred here constituted an accidental omission within Chapter 17.3.2 of the Claims Assessment Guidelines, a further impediment would exist to the application of s.94(6) to the situation. The determination of the claim for interest required the exercise of an independent discretion under s.137 MAC Act. As such, applying the principles in Storey & Keers, it does not seem to me that such an omission would be caught by the statutory slip rule contained in s.94(6) MAC Act. 148 I am satisfied that s.94(6) did not apply to provide a remedy in the circumstances of this case.

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Was it Open to the Assessor to Issue a s.94 Certificate on 23 March 2006 ? 151 The answer to the first question involves consideration of the High Court's decision in Bhardwaj. Both Mr Robertson SC and Mr Petty SC took me, in some detail, to the judgments in Bhardwaj. 152 Gleeson CJ, at 602 [1], identified the issue in that case in the following way: "This appeal concerns an administrative tribunal's capacity to correct its own error when, in consequence of that error, it has failed to discharge its statutory function. " 153 In Bhardwaj, the Immigration Review Tribunal proposed to deal with the respondent's matter and invited him to attend a hearing. On the afternoon before the hearing, the Tribunal received, from the respondent's agent, a letter stating that the respondent was ill and would be unable to attend the next day and requesting an adjournment. By an administrative oversight, the letter did not come to the attention of the member of the Tribunal to whom the matter had been assigned. The Tribunal dealt with the matter adversely to the respondent and notified the respondent and his agent accordingly. The respondent's agent drew to the attention of the Tribunal member the letter which had been sent and a new hearing date was arranged. The Tribunal heard the respondent's case and found in his favour. The issue that arose for consideration concerned the capacity of the Tribunal to proceed as it did. 154 By majority (Gleeson CJ, Gaudron, McHugh, Gummow, Hayne and Callinan JJ, Kirby J dissenting), the Court held that the Tribunal had the power to take the course which it did. 155 Gleeson CJ observed at 603 [5] that there is nothing in the nature of an administrative decision which requires a conclusion that a power to make a decision, once purportedly exercised, is necessarily spent. Reference was made, at 603 [7] to the decision of the Supreme Court of Canada in Chandler v Alberta Association of Architects (1989) 2 SCR 848 where it was pointed out that, as a general rule, subject to a power to correct a slip or an error of expression, a tribunal cannot revisit its own decision because it has changed its mind, or recognises that it has made an error within jurisdiction, or because there has been a change of circumstances. However, the Court in Chandler held that the principle of functus officio should not be strictly applied if the tribunal had failed to discharge its statutory function and "there are indications in the enabling statute that a decision can be reopened in order to enable the tribunal to discharge the function committed to it by enabling legislation" (at 862). 156 Having referred to Chandler, Gleeson CJ said at 603-604 [8]: "The requirements of good administration, and the need for people affected directly or indirectly by decisions to know where they stand, mean that finality is a powerful consideration. And the statutory scheme, including the conferring and limitation of rights of review on appeal, may evince an intention inconsistent with a capacity for self-correction. Even so, as the facts of the present case show, circumstances can arise where a rigid approach to the principle of functus officio is inconsistent with good administration and fairness. The question is whether the statute pursuant to which the decision-maker was acting manifests an intention to permit or prohibit reconsideration in the circumstances that have arisen. That requires examination of two questions. Has the tribunal discharged the functions committed to it by statute? What does the statute provide, expressly or by implication, as to whether, and in what circumstances, a failure to discharge its functions means that the tribunal may revisit the exercise of its powers or, to use the language of Lord Reid, reconsider the whole matter afresh?" 157 The Chief Justice referred to submissions made in Bhardwaj contrary to the existence of the power of the tribunal to correct its own error in that case, including the absence of an express power in the tribunal to reconsider its own decisions and the need for finality having regard to the scheme for removal of unlawful non-citizens based, as it was, on the date of final determination of a visa application (at 604 [10]). 158 Gleeson CJ continued at 604 [11]: "To say that a tribunal has considered an application, reached a conclusion, and informed affected parties of its decision, is to make a statement of fact. But the legal consequences of that fact depend upon the Act; and the answer to a question about those consequences may depend upon the purpose for which the question is asked. The answer to the question whether a legally effective decision has been made may depend upon the kind of legal effect that is under consideration, and upon further facts as to what was done, or not done, following the communication of the decision." 159 Gleeson CJ, at 605-606 [14]-[15], concluded that it was open to the tribunal to correct its own error, explaining that conclusion in the following way: "In the present case there was a denial of procedural fairness; but there was more to it than that. There was an error of the kind described as 'error in fact' in the context of proceedings by writ of error: the non-fulfilment or non-performance of a condition precedent to regularity of adjudication such as would ordinarily induce a tribunal 'to stay its hand if it had knowledge, or to re-open its judgment had it the power'. The Act, in Pt 5 Div 5, prescribed the procedures according to which the tribunal was required to conduct its review of the delegate's decision. If the tribunal was not prepared to decide in the respondent's favour on the written material before it, then s 360 required that it give the respondent an opportunity to appear and give evidence and present arguments. The tribunal set out to give the respondent such an opportunity. It intended to follow the statutory procedure. As a result of an administrative slip, it denied the respondent the opportunity that he wanted to have, and that the tribunal intended to give him. And, in consequence, it dealt with the matter in the belief that the respondent had nothing to say by way of explanation of the conduct that had resulted in the cancellation of his visa. The tribunal, through an administrative error, failed to implement its own intention, and failed to comply with the statutory requirement to give the respondent an opportunity to be heard. In its reasons for its 'decision', the tribunal merely noted the delegate's decision, and observed that nothing had been put before it as to why the decision was unfair or inappropriate. That did not amount to the conduct of a review. The Act provided, in s 353, that the tribunal, in reviewing the delegate's decision, was not bound by technicalities or legal forms and should act according to substantial justice. When it learned of its own administrative error, the tribunal recognised that it had not performed its functions and proceeded to do so.

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To say that the September decision was not a "decision on review" for the purposes of ss 367 and 368 of the Act is simply to say that it clearly involved a failure to exercise jurisdiction, and not merely jurisdictional error constituted by the denial of procedural fairness." 163 Gaudron and Gummow JJ, at 613 [46], did not consider it helpful to describe erroneous administrative decisions by use of labels: "In our view, it is neither necessary nor helpful to describe erroneous administrative decisions as 'void', 'voidable', 'invalid', 'vitiated' or, even, as 'nullities'. To categorise decisions in that way tends to ignore the fact that the real issue is whether the rights and liabilities of the individual to whom the decision relates are as specified in that decision. And, perhaps more importantly, it overlooks the fact that an administrative decision has only such force and effect as is given to it by the law pursuant to which it was made. Further, the use of the term 'appeal' and the proposition that an administrative decision must have sufficient vitality to provide the subject-matter of such a curial proceeding should not obscure the fundamental proposition that such an 'appeal' or other proceeding for judicial review is an exercise of original jurisdiction by the court concerned. It will be necessary to refer further to this consideration later in these reasons." 164 At 614-615 [51], Gaudron and Gummow JJ said: "There is, in our view, no reason in principle why the general law should treat administrative decisions involving jurisdictional error as binding or having legal effect unless and until set aside. A decision that involves jurisdictional error is a decision that lacks legal foundation and is properly regarded, in law, as no decision at all. Further, there is a certain illogicality in the notion that, although a decision involves jurisdictional error, the law requires that, until the decision is set aside, the rights of the individual to whom the decision relates are or, perhaps, are deemed to be other than as recognised by the law that will be applied if and when the decision is challenged. A fortiori in a case in which the decision in question exceeds constitutional power or infringes a constitutional prohibition." 165 After referring to Chandler, Gaudron and Gummow JJ said at 616 [53]: "In our view, logic and legal principle both direct the conclusion that the approach of the Supreme Court of Canada is correct. As already pointed out, a decision involving jurisdictional error has no legal foundation and is properly to be regarded, in law, as no decision at all. Once that is accepted, it follows that, if the duty of the decision-maker is to make a decision with respect to a person's rights but, because of jurisdictional error, he or she proceeds to make what is, in law, no decision at all, then, in law, the duty to make a decision remains unperformed. Thus, not only is there no legal impediment under the general law to a decision-maker making such a decision but, as a matter of strict legal principle, he or she is required to do so. And that is so, regardless of s 33(1) of the Acts Interpretation Act." 166 Gaudron and Gummow JJ held that it was open to the tribunal to correct its own error. McHugh J, at 618 [63], agreed with Gaudron and Gummow JJ on this question. 167 Kirby J in a dissenting judgment, emphasised the uncertainty which would arise if a tribunal could treat its own decision as being of no legal effect (at 637 [122]). 168 Hayne J, who formed part of the majority, made the following observations with respect to jurisdictional error at 644-645 [148]-[149]: "No less importantly, it must be recognised that, after the September decision, the respondent would have been entitled to mandamus compelling the tribunal to perform its duty to review the decision made by the minister's delegate. Moreover, as the decision in R v War Pensions Entitlement Appeal Tribunal; Ex parte Bott [(1933) 50 CLR 228 at 242] reveals, mandamus would have been available even though no order quashing the September decision was sought or obtained. It would have been enough for the respondent to show 'that the ostensible determination [of the tribunal] is not a real performance of the duty imposed by law upon the tribunal'.

[58]

The error committed by the tribunal in reaching its September decision was a jurisdictional error. What it did was not authorised by the Act and did not constitute performance of its duty under the Act. As the availability of mandamus demonstrates, the September decision was not a decision of the review that the respondent had sought in relation to the decision of the minister's delegate. The error made by the tribunal in this case must be contrasted with other, non-jurisdictional, errors that a decision-maker may commit. In particular, a jurisdictional error of the kind made in relation to the September decision is fundamentally different from a case where, for whatever reason, a decision-maker has second thoughts about such matters as findings of fact. No doubt the word 'error' can be applied to the circumstances last mentioned, but the legal significance of such an error is, for the reasons given by Brennan J in Attorney-General (NSW) v Quin [(1990) 170 CLR 1 at 35-36] , radically different from the significance of a jurisdictional error." 169 Callinan J formed part of the majority and observed, at 649-650 [163]-[165]: "I have formed the opinion that what happened in September 1998 was something more than a breach of the rules of natural justice. It was a failure to exercise a jurisdiction which the tribunal was bound to exercise. If one thing is abundantly clear, it is that the tribunal must, if an application has properly been made as it was here, review the minister's decision. This means that the tribunal must exercise the jurisdiction of reviewing the minister's decision: that is to say, it must make a decision on the application and any documents properly submitted by an applicant, with, as part of, or relevant to it. To fail, or refuse to receive and consider such a document, and to make a decision without regard to it, is a failure to exercise jurisdiction. This is more than a failure to give a party a hearing. It is to proceed on a false basis, that such a document simply does not exist or has not been communicated to the tribunal. The tribunal would in these circumstances no more be exercising its jurisdiction than a court would be in deciding a case in favour of a defendant without looking at the plaintiff's initiating document and pleading, or even knowing that they had been filed in the registry of the court. The application for an adjournment was an important document. The tribunal was bound to give it consideration. This was not a case in which a document or a piece of evidence was merely not referred to in a decision. This is a case in which it is known that the application for an adjournment was not brought to the attention of the tribunal in order to enable it to exercise its jurisdiction to grant or refuse the adjournment, and if it refused it, to undertake the review in the knowledge, and on the understanding that it had been refused. If the tribunal had, at the time of making its September 1998 decision, known of the application for an adjournment, it might, if it were so minded, have decided to refuse it. It might perhaps in refusing it, have been unnecessary to give any, or any detailed reasons why it did so. But what it did have to do was to exercise its jurisdiction, that is, relevantly, to make a decision about it and the court does know that that is one thing which it did not do.

[59]

It follows, in my opinion, that the tribunal had not exercised its jurisdiction in September 1998 and that therefore it was open for it to do so in October 1998." 170 Mr Robertson SC emphasised that, properly understood, the decision in Bhardwaj required more than a denial of procedural fairness before a tribunal could remedy the matter. Jurisdictional error was required in the sense that the tribunal has not performed the task ascribed to it by the statute under which it operates. To emphasise this submission, Mr Robertson SC relies upon the analysis of the decision in Bhardwaj undertaken by Gray and Downes JJ in Jadwan Pty Limited v Secretary, Department of Health and Aged Care (2003) 145 FCR 1 at 15-16 [40] to the following effect: "This analysis shows that the judgment in Bhardwaj rested clearly upon the proposition that the relevant legislation did not give the first decision of the IRT force and effect such as to require the IRT to treat that decision as precluding it from exercising its statutory function. All six judges who formed the majority did so on that basis. Only Gaudron and Gummow JJ, with the agreement of McHugh J, as part of their reasoning, relied on the proposition that jurisdictional error on the part of the decision-maker causes an administrative decision to be of no legal effect. Gleeson CJ, Hayne J and Callinan J do not appear to have embraced that proposition. Kirby J in his dissenting judgment clearly did not. Gaudron and Gummow JJ did not explain in detail the consequences of the proposition that a decision has no legal effect. They did not deal with issues such as the status of the first decision of the IRT if the IRT had not chosen to ignore it and make another. Indeed, their Honours did not discuss what might be the factual, as distinct from the legal, consequences attaching to an administrative decision if no challenge to its validity is ever made, or if any challenge to its validity is made out of time, or is made in proceedings to which someone bound or otherwise affected by the decision is not a party. Nor did their Honours say anything about the possible effect of an administrative decision after a court proceeding in which a party has made out a case of jurisdictional error on the part of the decision-maker, but the court has declined to grant relief in relation to the decision by reason of discretionary considerations. The facts of Bhardwaj did not call for pronouncement upon these issues. The IRT had itself chosen to ignore its previous decision. The validity of that decision was in issue in the very proceeding with which the High Court was dealing." 171 In Jadwan, Gray and Downes JJ said at 16 [42]: "In our view, Bhardwaj cannot be taken to be authority for a universal proposition that jurisdictional error on the part of a decision-maker will lead to the decision having no consequences whatsoever. All that it shows is that the legal and factual consequences of the decision, if any, will depend upon the particular statute." 172 The third member of the Bench in Jadwan, Kenny J, agreed with the approach of Gray and Downes JJ to Bhardwaj at 22 [64]: "The first matter is the contention that judicial review 'is an exercise directed to the making of final and binding decisions as to the legal rights and duties of the parties to the review proceedings'. If that contention refers to the rights and duties in issue before the body whose decision is being judicially reviewed, as I think it does, I do not agree with it. Nor do I agree with the contention that, when an administrative decision is challenged in judicial proceedings, what 'is ultimately decided is not whether the decision was affected by error but whether the rights of the party to whom the decision relates are determined by that decision which, they will not be, if the decision must be set aside'." 173 Mr Robertson SC submits that the statutory scheme in Part 4.4 MAC Act, including s.94(6) as an avenue of referral to the Principal Claims Assessor in the case of "obvious error", points to an exclusion by the MAC Act of the ability of an assessor to revisit a purported s.94 decision upon the grounds of jurisdictional error. Allianz submits that the express provision of a limited correction power in s.94(6) operates impliedly to exclude the application of the Bhardwaj principle. Although Allianz accepts that a denial of procedural fairness has occurred, it submits that Mr Crazzi's remedy lay in an application to this Court for relief in the nature of certiorari under s.69 Supreme Court Act 1970. Mr Robertson SC submits that the type of self-help arising from the Bhardwaj principle has no application to an assessor exercising statutory functions under the MAC Act. 174 Although Mr Robertson SC did not cite expressly the maxim "expressio unius est exclusio alterius", his submission invokes the concept underlying the maxim - that the express statement of a matter in some circumstances (the power to correct obvious error in s.94(6)) excludes an implied statement of the matter (power in the assessor to correct under the Bhardwaj principle) in other circumstances: Von Lieven v Stewart (1990) 21 NSWLR 52 at 64. 175 Mr Petty SC emphasises the nature of jurisdictional error in the context of administrative decision making: Craig v South Australia (1994-1995) 184 CLR 163 at 179; Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 at 351 [82]. He submits that Bhardwaj applies clearly in the circumstances of this case.

[60]

Consideration of Submissions 176 The Bhardwaj decision has particular application to a case where jurisdictional error is said to arise from a denial of procedural fairness. Jadwan was not such a case. A different form of jurisdictional error was alleged and held not to attract the Bhardwaj principles. 177 It is noteworthy that the High Court has restated the Bhardwaj principle, without qualification, in two cases decided since Jadwan. In Plaintiff S157/2002 v Commonwealth of Australia, Gaudron, McHugh, Gummow, Kirby and Hayne JJ said at 506 [76] that "this Court has clearly held that an administrative decision which involves jurisdictional error is 'regarded, in law, as no decision at all'." This passage was applied in Minister for Immigration and Multicultural and Indigenous Affairs v SGLB at 997 [29]. 178 The statutory scheme governing a claims assessment under the MAC Act makes express provision for the manner in which procedural fairness is to be afforded to the parties. In this respect, the relevant statutory scheme under the MAC Act is analogous to the scheme considered in Bhardwaj. 179 Where a statute sets out the manner in which procedural fairness is to be afforded by an administrative tribunal, it has been held that a legislative intention is disclosed whereby a particular measure of natural justice is made a pre-condition of validity, with failure to afford that measure of natural justice rendering a determination void, relying, inter alia, on the Bhardwaj principle: Brodyn Pty Limited v Davenport (2004) 61 NSWLR 421 at 442-443 [57]. 180 For the Assessor to proceed to issue a certificate where the parties had agreed, and the Assessor had accepted, that Mr Crazzi's claim for interest ought be left until the other claims for damages had been quantified, constituted a clear denial of procedural fairness. No submission to the contrary was made before me. 181 The MAC Act provides for interest to be allowed (s.137). No provision is made for this to be done separately and after the calculation of damages. The MAC Act envisages the issue of a single certificate assessing all claims for damages falling within Part 5 of the Act as made by a claimant, including a claim for interest. The action of the Assessor in purporting to issue a certificate on 30 December 2005 without hearing Mr Crazzi's claim for interest, deprived Mr Crazzi of an opportunity of advancing a part of his claim in relation to which he was entitled to a hearing and determination. Of course, this state of affairs came about because Allianz proposed such an approach. I shall return to this aspect later in the judgment. 182 I find that a clear denial of procedural fairness occurred involving a failure by the Assessor to comply with the specific procedural fairness provisions in the Claims Assessment Guidelines and to hear and determine a statutory element of Mr Crazzi's claim for damages, being his claim for interest under s.137 MAC Act. 183 In these circumstances, I am satisfied that the Assessor failed to discharge his statutory function and, as well, denied procedural fairness to Mr Crazzi. This is not a case of the Assessor revisiting a decision because he has changed his mind or has made an error within jurisdiction. The Assessor had not completed the exercise of his statutory function to determine Mr Crazzi's claim for damages (including interest) under Part 5 MAC Act. There has been a failure to exercise jurisdiction combined with jurisdictional error in the form of a denial of procedural fairness. I am satisfied that the principles in Bhardwaj and Jadwan apply to this case. 184 I do not consider that the statutory scheme created by the MAC Act, including s.94(6), operates to exclude the Bhardwaj principle in a case where an assessor has failed to exercise his statutory function in a manner which also constitutes a denial of procedural fairness. Section 94(6) is a relatively narrow slip rule provision. I note that the Administrative Decisions Tribunal has not regarded the presence of s.87 Administrative Decisions Tribunal Act 1997 as an impediment to the application of the Bhardwaj principle in a case where jurisdictional error had occurred before that Tribunal: French v Sydney Turf Club Ltd (No. 2) [2003] NSWADTAP 54. 185 To the extent that the Allianz submission seeks to invoke, directly or indirectly, the expressio unius principle, it is appropriate to bear in mind the caution to be exercised before applying the principle: Ainsworth v Criminal Justice Commission (1991-1992) 175 CLR 564 at 575. The maxim has been said to be a valuable servant but a dangerous master: Houssein v Under Secretary Department of Industrial Relations (1982) 148 CLR 88 at 94; Hornsby Shire Council v Porter (1990) 19 NSWLR 716 at 720-721. 186 It may be said that there is a need for certainty, including temporal certainty, in the certificate-issuing process given the provisions in ss.94 and 95 MAC Act. It was acknowledged by Gleeson CJ and Kirby J in Bhardwaj that consideration should be given to the impact upon the statutory scheme which may flow from a tribunal being able to revisit its own decision in the case of jurisdictional error. 187 It seems to me that this argument cuts both ways in the case of the MAC Act. A s.94 certificate is an important document. If accepted by a claimant for the purposes of s.95(2)(b), an award of damages in that sum will flow to the claimant. On the other hand, if a claimant does not accept the sum assessed in the certificate within 21 days, a significant costs penalty will operate in the event that the claimant does not obtain a significantly larger award of damages in curial proceedings. All of this suggests the need for a proper and complete process involving the full discharge by the assessor of the relevant statutory function with a final point of correction, where the jurisdiction has been exercised, in the event of "obvious error" under s.94(6) MAC Act. 188 I do not accept the submission of Allianz that the existence of s.94(6) in the Act points to an exclusion by the statute of the ability of an assessor to revisit a purported s.94 decision upon the grounds of jurisdictional error. The corrective power created by s.94(6) is a narrow one and is confined to circumstances which do not extend to the present case. I am not satisfied that the legislature intended, by enacting s.94(6), to cover the field with respect to corrective action which may be taken by a claims assessor so as to exclude operation of the Bhardwaj principle. Section 94(6) is a limited remedy applicable where there is an "obvious error" in a s.94 certificate and statement of reasons which have, as a matter of law, issued. The provision applies to a valid certificate and statement of reasons and permits correction of that certificate and statement of reasons and the issue of a "replacement certificate or statement". Where jurisdictional error has occurred, there is, in law, no certificate or statement which has been issued. It is not a case of replacement of a certificate or reasons which have issued in law, but the exercise, for the first time, of the statutory jurisdiction to issue a s.94 certificate and statement of reasons. I am satisfied that this construction promotes the objects of the MAC Act: s.5(1)(b); s.6 MAC Act. 189 In my view, the effective operation of the claims assessment and certification process under ss.94 and 95 MAC Act will be enhanced by application of the Bhardwaj principle so as to allow an assessor to promptly remedy an omission which, as in this case, constitutes both a denial of procedural fairness and a failure to exercise the assessor's statutory function. This approach will also promote an important object of the MAC Act being the provision of compensation for compensable injuries sustained in motor accidents and the encouragement of early resolution of compensation claims: s.5(1)(b). 190 It was open to Assessor Flynn, in the circumstances of this case, to invite the parties to make submissions on the claim for interest and to issue a s.94 certificate on 23 March 2006.

[61]

Was the Assessor Bound to Consider the Facts as they Stood as at 23 March 2006? 191 Mr Robertson SC submitted that, in the event that I held that it was open to the Assessor to remedy his own error, the Assessor was bound to have regard to the facts and circumstances as they stood as at 23 March 2006. 192 In support of this argument, Mr Robertson SC relied upon Minister for Aboriginal Affairs v Peko-Wallsend Limited (1985-1986) 162 CLR 24. In that case, certain aboriginals made claims to land in the Northern Territory. The Aboriginal Land Commissioner held an inquiry into the claims and recommended that a grant be made of land which included a particular area. Exploration companies had discovered a large deposit of uranium which lay in that part of the block recommended for a grant. The Commissioner commented on the detriment that a grant might have on the companies, but he was not aware that the deposit lay wholly within the area recommended for grant. Thereafter, the companies informed the then Minister of the true position. A successor to the Minister, without reference to that information, recommended to the Governor-General that a grant should be made of land which included the land containing the deposit. The High Court held that the Minister was bound to take into account the Commissioner's comments on detriment in exercising his power to decide whether or not he was satisfied that a grant should be made. 193 Mr Robertson SC relied upon passages in the judgments of Gibbs CJ at 30-31, Mason J at 44-45, Brennan J at 67, Deane J at 70 and Dawson J at 71. Particular reliance was placed upon the following statement by Mason J at 44-45: "The second question, which lies at the heart of this appeal, is whether the Minister is also bound to take into account submissions made to him which correct, update or elucidate the Commissioner's comments on detriment. Once it is accepted that the subject matter, scope and purpose of the Act indicate that the detriment that may be occasioned by a proposed land grant is a factor vital to the exercise of the Minister's discretion, it is but a short and logical step to conclude that a consideration of that factor must be based on the most recent and accurate information that the Minister has at hand. Considerable time may elapse between completion of the Commissioner's report and the date at which the Minister makes his decision; in the present case it was well over one and a half years. In that time there may be such a change of circumstances that the Commissioner's comments may no longer prove to be an accurate guide, there may be uncertainties or ambiguities in his comments that deserve clarification, or, as in the present case, even though there may have been no change of circumstances, interested parties may have become aware that the Commissioner's report omitted material matters on the subject of detriment. It would be a strange result indeed to hold that the Minister is entitled to ignore material of which he has actual or constructive knowledge and which may have a direct bearing on the justice of making the land grant, and to proceed instead on the basis of material that may be incomplete, inaccurate or misleading. In one sense this conclusion may be seen as an application of the general principle that an administrative decision-maker is required to make his decision on the basis of material available to him at the time the decision is made. But that principle is itself a reflection of the fact that there may be found in the subject matter, scope and purpose of nearly every statute conferring power to make an administrative decision an implication that the decision is to be made on the basis of the most current material available to the decision-maker." 194 Mr Petty SC submitted that, properly understood, the decision in Peko-Wallsend provided no assistance to Allianz in this case. A different statutory scheme was under consideration in that case. It was submitted that the principles emerging from Peko-Wallsend are far removed from the circumstances of this case and an understanding of the functions of an assessor under the MAC Act.

[62]

Consideration of Submissions 195 Several features of the claims assessment scheme under the MAC Act should be emphasised. On the day of the assessment conference or hearing, the parties appear before the assessor with the view to presenting material and submissions so that the assessor may make a decision with respect to all aspects of the claim and then issue a certificate and statement of reasons under s.94 MAC Act. As Mr Robertson SC submitted, correctly, an adjudicative process is involved (see paragraph 120 above). There is a statutory expectation that the certificate will issue, together with reasons, expeditiously: Chapter 10.5, 16.2 Claims Assessment Guidelines. Once a certificate has issued, the claimant has a limited and fixed time period in which to accept the assessment under s.95(2)(b) of the Act. All of this may be seen to serve and promote the object of the Act whereby early resolution of claims is encouraged: s.5(1)(b). 196 In the present case, Allianz sought an adjournment of the assessment conference prior to the hearing date, and again on the hearing date. On both occasions, the Assessor refused the application for adjournment. The decisions lay within the exercise of the Assessor's discretionary functions and powers. At the hearing on 7 December 2005, at the suggestion of counsel for Allianz, the claim for interest was put to one side pending assessment of Mr Crazzi's claim for damages. Although counsel for Allianz requested the Assessor to include, in the s.94 written reasons, his reasons for refusing the adjournment application on 7 December 2005, there was no statutory or other obligation on the Assessor to provide those reasons (or further reasons) for his discretionary refusal of the adjournment. Nevertheless, the Assessor indicated a willingness to give reasons in that respect. 197 To all intents and purposes, the assessment conference was completed on 7 December 2005, subject to an opportunity for the parties to be heard on Mr Crazzi's claim for interest at a later time. 198 Assessor Flynn purported to issue a s.94 certificate and statement of reasons on 30 December 2005 without hearing Mr Crazzi's claim for interest. The certificate and reasons were silent on the claim for interest and omitted any reasons for refusing the insurer's adjournment application on 7 December 2005. 199 Once Assessor Flynn had determined that he should receive submissions from the parties on the claim for interest, that was the sole remaining aspect of the claim which needed to be fulfilled in exercise of his statutory function. The Assessor had failed to exercise his statutory function by omitting to hear and determine this claim and, in the process, denied Mr Crazzi procedural fairness. 200 In my view, the proper construction of the statutory scheme in the MAC Act militates against a conclusion that it was somehow necessary for Assessor Flynn to ascertain the relevant facts and circumstances as they stood as at 23 March 2006. There is a clear distinction between the statutory function being exercised in Peko-Wallsend and the statutory function being exercised by an assessor under the MAC Act. All that Assessor Flynn had to do to complete the exercise of his statutory adjudicative function was to hear the parties on the claim for interest and to make a determination in that respect to be included in his s.94 certificate and statement of reasons. In Peko-Wallsend, the statutory process involved the Aboriginal Land Commissioner ascertaining whether applicants for traditional land were traditional owners and, if so, recommending to the Minister that land be granted to them: s.50(1)(a) Aboriginal Land Rights (Northern Territory) Act 1976 (Cth). Where such a recommendation was made, and the Minister was satisfied that land should be granted, the Minister should recommend that course to the Governor-General: s.11(1)(b). Accordingly, three different persons were involved in the decision-making process. As Mason J observed in Peko-Wallsend at 45, such a process is likely to be protracted with the prospect of changed circumstances between the time of the Commissioner's recommendation and the ultimate decision to be made by the Governor-General. In those circumstances, it is understandable that the conclusion was reached that the decision maker must have regard to the material available at the time when the decision was made. 201 By way of contrast, an assessor under the MAC Act, in the ordinary course, conducts an assessment conference or hearing at which evidence and submissions are received followed by the issue of a s.94 certificate and statement of reasons. Although the process does not involve a curial hearing governed by the rules of evidence, there are identifiable and well-known features of the process which resemble preparation for and the conduct of a court hearing. There is a single decision reflecting the evidence and submissions made at the time of the assessment conference. There is a statutory expectation that the assessor will proceed to an assessment conference, and thereafter issue a s.94 certificate and statement of reasons, expeditiously. In practice, some time may pass whilst the assessor prepares the written certificate and statement of reasons. The certificate and statement of reasons, however, will reflect the evidence, issues and submissions advanced at the time of the assessment conference or hearing. There is no warrant to construe the assessor's function under s.94 MAC Act as requiring a type of obligation to obtain an update of the facts and circumstances as at the time when the certificate issues. In the present case, the assessment conference was complete and the Assessor reserved his decision on all issues except the claim for interest which was deferred on the application of Allianz. 202 The fact that Assessor Flynn, in accordance with his stated intention, provided reasons on 23 March 2006 for refusing Allianz's adjournment application on 7 December 2005 does not advance the insurer's case. In my view, this was an unnecessary step. Likewise, the fact that Assessor Flynn took the opportunity to correct a mathematical error which had appeared in his purported statement of reasons on 30 December 2005 does not advance Allianz's case before me. 203 The approach of the Assessor in having regard to Allianz's offer of 6 February 2006 operated advantageously to Allianz and to the detriment of Mr Crazzi. If Mr Crazzi's counsel had pressed the claim for interest on 7 December 2005, Allianz would not have been able to point to an offer of settlement which could assist it on that issue. Further, once Assessor Flynn had reserved his decision at the end of the assessment conference on 7 December 2005, all aspects of the claim would have been heard and a certificate would have issued which would not have attracted the litigious controversy which has embroiled the parties since 30 December 2005. 204 I am satisfied that it was open to Assessor Flynn to treat all aspects of the claim as remaining as they stood at the time of hearing on 7 December 2005, with the only element calling for consideration of submissions advanced by the parties being the claim for interest. The statements in Peko-Wallsend do not apply to this case so as to require the Assessor to, in effect, obtain an update on aspects of the claim. The solicitors for Allianz, in one letter, asked the Assessor to defer consideration of the matter until after the further medical assessment process had been undertaken. In my view, the Assessor was not bound to take this course. There is nothing in the MAC Act which requires him to so proceed. In particular, the position had been reached in this case where the assessment conference was complete and with the Assessor's decision being reserved on 7 December 2005, subject only to the interest claim which, at the insurer's suggestion, had been placed to one side. 205 The Assessor was not bound to defer the completion of the exercise of his statutory function. 206 In reaching these conclusions, I have had regard to the objects of the MAC Act relating to the containment of costs and premiums and restriction of damages for non-economic loss: s.5(1)(e), 5(2)(a), 5(2)(b), 6 MAC Act; Longhurst v Hunt. I do not consider that these factors required the Assessor to defer the issue of the s.94 certificate until the further medical assessment was complete. The MAC Act did not require that approach. The Assessor had twice exercised his discretion to refuse the adjournment applications of Allianz. 207 In the present case, the Assessor had exercised his statutory function under s.94 MAC Act virtually to completion. He was not bound to defer the issue of a s.94 certificate pending the further medical assessment process. It was open to the Assessor to consider and determine the sole remaining question and to then issue a s.94 certificate and statement of reasons, as he did, on 23 March 2006. 208 Allianz has not demonstrated an entitlement to relief as claimed in the Summons.

[64]

210 In the event that some basis for relief had been demonstrated, Mr Petty SC made forceful submissions that there were discretionary reasons as to why that relief ought be refused in any event. He pointed, in particular, to the fact that the origin of the present controversy stemmed from the submission of Allianz, on 7 December 2005, that Mr Crazzi's claim for interest be considered separately and at a later time after other aspects of his claim for damages had been assessed. Mr Crazzi's counsel agreed to this proposal which was accepted by the Assessor. Had counsel for Allianz not advanced this proposal, the hearing would have been completed on 7 December 2005 and Assessor Flynn would have issued a certificate dealing with all aspects of the claim. It would have been open to Mr Crazzi to accept the sum of damages assessed in that certificate under s.95(2)(b) MAC Act. 211 Mr Petty SC points to other events which, he submits, are relevant to the exercise of discretion. Once the purported certificate and statement of reasons dated 30 December 2005 had issued, it being immediately clear that the Assessor had overlooked the interest claim, the solicitors for Allianz engaged in correspondence which was not calculated to foster a just and quick resolution of the problem. Allianz did not contend that the 21-day period was running from 30 December 2005 until after this prospect was raised by the Principal Claims Assessor. It was then, for the first time, that Allianz contended that the time for Mr Crazzi to accept the purported certificate had expired. 212 Mr Crazzi accepted the s.94 certificate of 23 March 2006. If that certificate was declared void, and the purported certificate of 30 December 2005 stood, Mr Crazzi would be out of time to accept the assessment contained in that certificate. Mr Petty SC points to the duty upon an insurer under s.80(1) MAC Act which provides: "It is the duty of an Insurer to endeavour to resolve a claim, by settlement or otherwise, as justly and expeditiously as possible." 213 It is a condition of an insurer's licence to comply with this duty: s.80(2). Mr Petty SC submits that the actions of Allianz in this case do not sit comfortably with the statutory duty cast upon the insurer under this provision. 214 Mr Petty SC submits that, if Allianz succeeds in setting aside the certificate of 23 March 2006, that result will defeat the implementation of a proposal which its own counsel made at the assessment conference on 7 December 2005 and thus the Court should not lend its hand to such a result. 215 Put shortly, Mr Petty SC submitted that Allianz had brought all of this upon itself and that it should not benefit from a state of affairs which it generated, even if a technical legal entitlement to relief could be demonstrated. 216 Mr Robertson SC submitted that no basis had been demonstrated for the discretionary refusal of relief if Allianz was otherwise entitled to its remedy. 217 It will be recalled that I determined that s.94(6) was not available to remedy the problem in this case. What occurred here resulted from a jurisdictional error involving a denial of procedural fairness and a failure by the Assessor to exercise his jurisdiction under s.94 MAC Act. 218 If, however, I am wrong in this respect and s.94(6) did apply, I would decline relief to Allianz on discretionary grounds. 219 It would be expected that Allianz should have promptly acknowledged the obvious mistake made in its favour and should have co-operated in having the mistaken order vacated: Ambulance Service of NSW v Daniel [2004] NSWCA 406 at paragraph 7. 220 If s.94(6) was an available pathway to remedy the Assessor's failure to hear and determine the claim for interest, it would have been inevitable that the Principal Claims Assessor would have approved of the claims assessor issuing a replacement certificate or statement of reasons to correct the error. Assessor Flynn would have heard and determined the claim for interest and issued a fresh certificate disposing of all aspects of Mr Crazzi's claim. 221 At the same time, it would have been open to the Principal Claims Assessor to approve of Assessor Flynn correcting the calculation error in the replacement certificate and statement of reasons. If these steps had been taken, the 21-day period provided for in s.95(2)(b) MAC Act would not have commenced to run until Assessor Flynn had issued a s.94 certificate and statement of reasons remedying these errors and completing the exercise of his statutory function. 222 Ultimately, that is precisely what has happened in this case. Assessor Flynn completed the exercise of his jurisdiction and, after considering the claim for interest, determined not to allow it. Mr Crazzi accepted the assessment contained in the s.94 certificate which issued following Assessor Flynn's completion of his statutory function. 223 Alternatively, if Allianz had demonstrated that Assessor Flynn had fallen into jurisdictional error in his approach to the s.62 medical assessment issue, in issuing the s.94 certificate and statement of reasons on 23 March 2006, the same discretionary factors, in my view, would stand in the way of the grant of relied sought in the Summons. 224 There is no closed category of cases in which prerogative relief may be refused on discretionary grounds. Likewise, the power to grant declaratory relief is discretionary and it is neither possible nor desirable to fetter the power by laying down rules as to the manner of its exercise: Ainsworth v Criminal Justice Commission at 581-582. Although it has been said that prerogative relief will issue almost as of right, relief may be refused if, in all the circumstances, that seems the proper course: R v Ross-Jones; Ex parte Green (1984) 156 CLR 185 at 194; Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82 at 106 [52], 137 [149], 144 [172]; Aronson, Dyer and Groves, Judicial Review of Administrative Action, 3rd edn, 2004, pages 714-719, 736-745, 787-788, 789-793. 225 The principles applicable to the exercise of discretion where relief is sought under s.69 Supreme Court Act 1970 appear in The King v Commonwealth Court of Conciliation and Arbitration; Ex parte Ozone Theatres (Aust) Limited (1949) 78 CLR 389 at 400 where Latham CJ, Rich, Dixon, McTiernan and Webb JJ said: "… The writ of mandamus is not a writ of right nor is it issued as of course. There are well recognised grounds upon which the court may, in its discretion, withhold the remedy.

[65]

For example the writ may not be granted if a more convenient and satisfactory remedy exists, if no useful result could ensue, if the party has been guilty of unwarrantable delay or if there has been bad faith on the part of the applicant, either in the transaction out of which the duty to be enforced arises or towards the court to which the application is made. The court's discretion is judicial and if the refusal of a definite public duty is established, the writ issues unless circumstances appear making it just that the remedy should be withheld. The question whether there are any grounds for refusing the remedy will be discussed after the question of the jurisdiction of the Court of Conciliation and Arbitration has been considered." 226 In Zuanic v Gyro-Tech (Australia) Pty Ltd (In Liquidation) [2006] NSWSC 738 at paragraphs 75-78, Hoeben J indicated that, if the Plaintiff had established an entitlement to prerogative and declaratory relief, such relief would have been refused in any event on discretionary grounds applying the Ozone Theatres principle. 227 It has been said that the Court may refuse to exercise its discretion to grant prerogative relief to an applicant if the applicant's conduct has been unmeritorious (Wade, Administrative Law, 1982, 5th edn, pages 477, 591), blameworthy (Peko-Wallsend Limited v Minister for Aboriginal Affairs (1985) 5 FCR 532 at 541-3, 560-561, 569) or the applicant acquiesced in the conduct of the proceedings in which he is complaining (Aronson, Dyer and Groves, above at page 718; Sykes, Lanham and Tracey, General Principles of Administrative Law, 1989, 3rd edn, page 240). 228 In my view, there are features of this case which would operate against the grant of a discretionary remedy to Allianz if it had established a technical basis for such relief. It is clear that Allianz was dissatisfied with the Assessor's refusal of the adjournment applications made prior to and at the assessment conference on 7 December 2005. Those were decisions, however, which lay within the Assessor's discretionary powers. The assessment hearing proceeded on the merits and Allianz participated fully in it. The hearing was completed except for the claim for interest which Allianz proposed ought be dealt with at a later time. 229 Since 30 December 2005, Allianz has adopted a stance, or stances, designed to advance its own interests to the detriment of Mr Crazzi's interest. This is to be expected in disputed insurance claims, even under a statutory scheme such as that contained in the MAC Act. However, there is a somewhat opportunistic element revealed in the way in which Allianz has approached the problems which have evolved from its own submission that the claims assessment process should be fragmented. 230 In the context of application of the slip rule to cure an obvious mistake, Hodgson JA (Sheller and Beazley JJA agreeing) observed in Ambulance Service of NSW v Daniel, at paragraph 7, that a party should have promptly acknowledged an obvious mistake made in its favour and should have co-operated in having the mistake and order vacated. In my view, this proposition may be called in aid by Mr Crazzi in the present case with respect to the approach which Allianz ought to have taken immediately after it became apparent, on 30 December 2005, that Assessor Flynn had overlooked the claim for interest which had been deferred on the application of Allianz. 231 In the result, the certificate and statement of reasons which issued on 23 March 2006 operated to the advantage of Allianz in a number of respects. Firstly, it had the opportunity to resist the claim for interest by reference to the offer of settlement made on 6 February 2006. Allianz would not have been able to adopt this stance if the claim for interest had been argued on 7 December 2005. Secondly, there was a correction of a calculation error which reduced the award of damages to be paid by Allianz. The fact that this calculation error was capable of being remedied under s.94(6) MAC Act ought not, for discretionary reasons, assist Allianz in these proceedings.

Parties

Applicant/Plaintiff:

Allianz Australia Insurance Limited

Respondent/Defendant:

Crazzi and Others

Legislation Cited (5)

Motor Accident Insurance Act 1994(Qld)

Administrative Appeals Tribunal Act 1975(Cth)

Migration Act 1958(Cth)

Aboriginal Land Rights (Northern Territory) Act 1976(Cth)

Administrative Decisions Tribunal Act 1997(NSW)

Cases Cited (49)

CITATION : Allianz Australia Insurance Limited v Crazzi and Others [2006] NSWSC 1090 This decision has been amended. Please see the end of the judgment for a list of the amendments.

R v Australian Broadcasting Tribunal; Ex part Hardiman (1980) 144 CLR 13 Longhurst v Hunt [2004] NSWCA 91 Zurich Australian Insurance Limited v Motor Accidents Authority of NSW [2006] NSWSC 845 Richards v Richards [2006] NSWSC 140 Lee v Yang [2006] NSWCA 214 NRMA Insurance Limited v Motor Accidents Authority of NSW (2004) 61 NSWLR 264 Collector of Customs v Agfa-Gevaert Pty Limited (1995-1996) 186 CLR 389 State of NSW v Macquarie Bank Ltd (1992) 30 NSWLR 307 Coleman v Gray (1994) 55 FCR 412 Hodgson v Crane (2002) 55 NSWLR 199 Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597 Autodesk Inc v Dyason [No. 2] (1992-1993) 176 CLR 300 De L v Director-General, NSW Department of Community Services [No. 2] [1997] 190 CLR 207 DJL v Central Authority (2000) 201 CLR 226 Lunn v The Cardiff Coal Company (No. 2) [2003] NSWSC 25 Standard Commodities Pty Limited v Society Socinter department Centragel [2005] NSWSC 493 NSW Insurance Ministerial Corporation v Elkins (1998) 45 NSWLR 8 L Shaddock & Associates Pty Limited v Parramatta City Council [No. 2] (1983) 151 CLR 590 Gould v Vaggelas (1983-1985) 157 CLR 271 Storey & Keers Pty Limited v Johnstone (1987) 9 NSWLR 446 Elyard Corporation Pty Limited v DDB Needham Sydney Pty Limited (1995) 61 FCR 385 Sakr v Mercantile Mutual Insurance [2000] NSWCA 266 Roads and Traffic Authority v Palmer (No. 2) [2005] NSWCA 140 J Aron Corporation v Newmont Yandal Operations [2006] NSWSC 849 Abigroup Limited v Avignano (1992) 39 FCR 74 Bonnici v Ku-Ring-Gai Municipal Council [2001] NSWSC 1124 PM Sulcs & Associates Pty Limited v Daihatsu Australia Pty Limited [2001] NSWSC 798 CASES CITED : Firearm Distributors Pty Limited v Carson (2001) 2 QdR 26 Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476 Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 78 ALJR 992 Hazim v Secretary, Department of Family and Community Services (2002) 68 ALD 39 Johnson v Veterans' Review Board (2005) 41 AAR 120 Riley v Parole Board of NSW (1985) 3 NSWLR 606 Larkin v Parole Board (1987) 10 NSWLR 57 Promenade Investments Pty Limited v State of New South Wales (1992) 26 NSWLR 203 Merza v Registrar of the Workers Compensation Commission [2006] NSWSC 939 Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 Chandler v Alberta Association of Architects (1989) 2 SCR 848 Jadwan Pty Limited v Secretary, Department of Health and Aged Care (2003) 145 FCR 1 Von Lieven v Stewart (1990) 21 NSWLR 52 Craig v South Australia (1994-1995) 184 CLR 163 Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 Brodyn Pty Limited v Davenport (2004) 61 NSWLR 421 French v Sydney Turf Club Ltd (No. 2) [2003] NSWADTAP 54 Ainsworth v Criminal Justice Commission (1991-1992) 175 CLR 564 Houssein v Under Secretary Department of Industrial Relations (1982) 148 CLR 88 Hornsby Shire Council v Porter (1990) 19 NSWLR 716 Minister for Aboriginal Affairs v Peko-Wallsend Limited (1985-1986) 162 CLR 24 Ambulance Service of NSW v Daniel [2004] NSWCA 406 R v Ross-Jones; Ex parte Green (1984) 156 CLR 185 Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82 The King v Commonwealth Court of Conciliation and Arbitration; Ex parte Ozone Theatres (Aust) Limited (1949) 78 CLR 389 Zuanic v Gyro-Tech (Australia) Pty Ltd (In Liquidation) [2006] NSWSC 738 Peko-Wallsend Limited v Minister for Aboriginal Affairs (1985) 5 FCR 532 Tepko Pty Limited v Water Board (2001) 206 CLR 1

A purposive construction was given to s.133(3) MAC Act (which restricts damages for non-economic loss) by reference to the statutory objects in ss.5(1)(e), 5(2)(a), 5(2)(b) and 6 MAC Act: Longhurst v Hunt at paragraph 69. 10 In Zurich Australian Insurance Limited v Motor Accidents Authority of NSW [2006] NSWSC 845, Hoeben J provided a helpful summary of the legislative scheme under the MAC Act at paragraphs 22-26: "22 An important feature of the Act is that it restricted access to damages for non-economic loss (ss131-134). Non-economic loss would not be awarded unless the degree of permanent impairment of the injured person was greater than 10% whole person impairment (s131). That assessment was to be made in accordance with the medical guidelines issues by the Authority. Where injuries were assessed at greater than 10% whole of person permanent impairment, common law principles in relation to the assessment of damages for non-economic loss would apply although s134 sets a maximum indexed amount.

25 Assessors are appointed by the Authority but are not subject to the control or direction of the Authority in relation to their decisions (s105). An assessor's decision on liability is not binding but an assessment on quantum is binding on the insurer if the insurer accepts that liability and also on the claimant if the claimant accepts the assessment within twenty one days of the issue of the Certificate of Determination. ( Lee v Yang [2006] NSWCA 214.) The assessors may hold conferences with all relevant parties in attendance and with the relevant experts in attendance or hold separate assessment conferences in private with any of them or, where an assessor is satisfied that sufficient information has been supplied, without holding any assessment conferences or other formal hearing at all (s104).

(b) the claimant accepts that amount of damages in settlement of the claim within 21 days after the certificate of assessment is issued. Note. If the amount of damages is not accepted by the claimant within that period, section 151 makes provision with respect to liability for legal costs incurred after the certificate of assessment was issued. (3) It is a condition of an insurer's licence under Part 7.1 that the insurer complies with this section." 14 In Richards v Richards [2006] NSWSC 140, Malpass AsJ observed, at paragraph 8, that the effect of s.95 MAC Act was to create a "unique concept" whereby, if the requirements of s.95(2)(a) and (b) are satisfied, an assessment of the amount of damages for liability under a claim creates a "deemed offer" which may be accepted by the claimant. 15 In Lee v Yang [2006] NSWCA 214, Giles JA (Hodgson and Ipp JJA agreeing) at paragraphs 26-28, referred to the CARS provisions in Part 4.4 MAC Act, in the context of the stated objects of the Act, including the encouragement of early resolution of claims to compensation for injuries sustained in motor accidents: s.5(1)(b). The process of assessment, including ss.94 and 95, was to be viewed against a background where a costs penalty existed under s.151 MAC Act if the claimant did not accept the amount of damages assessed in settlement of the claim within 21 days after the certificate is issued. 16 The power to make regulations concerning, inter alia, the making of assessments is contained in s.97 MAC Act. While there are no such regulations at present, there are regulations regarding costs assessments: Part 3 of Motor Accidents Compensation Regulation 2005. 17 By s.106(1), claims assessments under Part 4.4 MAC Act (ss.88-106) are "subject to relevant provisions of MAA Claims Assessment Guidelines relating to those assessments". Under s.69(1) MAC Act, the MAA may issue guidelines "with respect to procedures for the assessment of claims under Part 4.4 and associated matters". Guidelines establishing procedures for assessing claims were promulgated in June 2002 and are styled "Claims Assessment Guidelines". These Guidelines may be characterised as delegated legislation, in the same way as the MAA Medical Guidelines under s.44 MAC Act: NRMA Insurance Limited v Motor Accidents Authority of NSW (2004) 61 NSWLR 264 at 267 [10]-[14], 269-270 [26]-[28]. As delegated legislation, the Claims Assessment Guidelines cannot affect the proper construction of the MAC Act or limit rights conferred by the Act; they exist to indicate how relevant assessments are generally carried out: NRMA Insurance Limited at 270 [28]; Pearce and Geddes, Statutory Interpretation in Australia, 6th edn, 2006, at [3.41]; and are subordinate legislation in the nature of regulations: Zurich Australian Insurance Ltd v Motor Accidents Authority of NSW at paragraph 28. The general principles relating to the interpretation of Acts of Parliament are equally applicable to the interpretation of delegated legislation: Collector of Customs v Agfa-Gevaert Pty Limited (1995-1996) 186 CLR 389 at 398. The normal purpose of subordinate legislation is to give effect to the provisions of the parent statute: State of NSW v Macquarie Bank Ltd (1992) 30 NSWLR 307 at 320. Subordinate legislation is typically designed to carry into effect the expressed intention of the legislature in ways incidental to the execution of the statue itself: State of NSW v Macquarie Bank at 321. It is appropriate to look beyond the MAC Act to the Guidelines to ascertain the overall statutory scheme: Coleman v Gray (1994) 55 FCR 412 at 423. 18 A further understanding of the powers and functions of a claims assessor may be derived from Chapters 10 to 17 of the Claims Assessment Guidelines (as they stood prior to 1 May 2006). Of particular relevance for present purposes are Chapters 12, 13, 16 and 17 which provide as follows: "Chapter 12. PRELIMINARY ASSESSMENT

(1980) 144 CLR 13

(2004) 61 NSWLR 264

(1992) 30 NSWLR 307

(1994) 55 FCR 412

(2002) 55 NSWLR 199

(2002) 209 CLR 597

(2000) 201 CLR 226

(1998) 45 NSWLR 8

(1983) 151 CLR 590

(1987) 9 NSWLR 446

(1995) 61 FCR 385

(1992) 39 FCR 74