Allianz Australia Insurance Limited v Mackenzie and Anor

Motor Accidents Authority of New South Wales (Second Defendant) Representation: Counsel: Mr MA Robinson SC (Plaintiff) Mr EG Romaniuk (First Defendant) Mr J Hutton (Second Defendant) Solicitors: Moray & Agnew (Plaintiff)Farrell Lusher (First Defendant) Crown Solicitor's Office (Second Defendant) File Number(s): 2011/181278 Publication restriction: ---

Judgment 1JOHNSON J: By Summons filed on 2 June 2011, the Plaintiff, Allianz Australia Insurance Limited ("Allianz"), seeks prerogative or declaratory relief arising from a decision said to have been made by a Proper Officer of the Second Defendant, Motor Accidents Authority of New South Wales ("the Authority"), upon an application by the First Defendant, Geoffrey Alan Mackenzie ("Mr Mackenzie"), that he be referred for a further medical assessment under s.62 Motor Accidents Compensation Act 1999 ("MAC Act").

2At the hearing of the Summons, Mr MA Robinson SC appeared for Allianz. Mr EG Romaniuk of counsel appeared for Mr Mackenzie. Mr J Hutton of counsel appeared for the Authority. 3The role of the Authority at the hearing attracted some controversy. On 14 June 2011, an appearance was filed on behalf of the Authority, submitting to the orders of the Court, save as to costs. 4On 24 June 2011, by consent, Registrar Bradford granted the Authority leave "to file and serve written submissions limited to the issue of the proper officer's decision-making procedure under s.62(1A) [MAC Act]". In due course, written submissions were filed on 4 November 2011 by Mr Hutton. Mr Robinson SC objected to the scope of these written submissions upon the basis that they travelled outside the terms of the grant of leave made by Registrar Bradford on 24 June 2011. 5At the hearing of the Summons on 9 November 2011, I confirmed that the Authority had leave to rely upon the written submissions of Mr Hutton filed on 4 November 2011. At the same time, I granted leave to Allianz to file written submissions in reply. In due course, Mr Robinson SC furnished further written submissions, which have been taken into account in the determination of the Summons. 6Having considered Mr Hutton's submissions for the purpose of preparing this judgment, I express the view, in any event, that the submissions fell within the parameters of the leave granted on 24 June 2011. The Authority's submissions did not involve any breach of the principles in R v Australian Broadcasting Tribunal; Ex parte Hardiman [1980] HCA 13; 144 CLR 13 at 35-36.

7Mr Robinson SC read, in Allianz's case, the affidavit of Peter Wily Utiger sworn 1 June 2011 and a further affidavit of Mr Utiger sworn 4 November 2011, subject to the exclusion of certain material annexed to the later affidavit (T4-5, 9 November 2011). 8In addition, an affidavit of Anne Varela affirmed 6 July 2011 was read in Allianz's case, and two volumes of documents referred to in the affidavit of Ms Varela were tendered (Exhibit A). 9Mr Mackenzie and the Authority did not tender evidence at the hearing.

10Allianz's Summons seeks: (a) an order in the nature of certiorari or, alternatively, a declaration setting aside or declaring invalid the decision of the Proper Officer of the Authority within the meaning of s.62(1B) MAC Act, being the decision dated 12 May 2011 on the application of Mr Mackenzie that he be referred for further medical assessment pursuant to s.62 MAC Act; (b) an order in the nature of prohibition or, alternatively, an injunction preventing Mr Mackenzie and the Authority from acting on or taking any further step in reliance on that decision; (c) an order in the nature of mandamus remitting Mr Mackenzie's application under s.62 MAC Act to the Authority, for reallocation of the matter to a different Proper Officer for determination of the matter according to law. 11Allianz contends that it is entitled to relief upon one or more of the following grounds: (a) Ground 1 - the purported decision dated 12 May 2011 was not that of the Proper Officer under s.62(1B) MAC Act, and did not comply with Clause 14.8 of the Medical Assessment Guidelines, which required the Proper Officer to provide reasons for the decision. (b) Ground 2 - Allianz was denied procedural fairness in the making of the decision, in that Allianz was refused an opportunity to respond to two sets of further written submissions from Mr Mackenzie which were filed and served late and out of time. (c) Ground 3 - there are errors of law on the face of the decision of 12 May 2011, also constituting jurisdictional error, with the wrong test being applied in the determination of the application. 12Relief in the nature of certiorari is not an appellate procedure enabling either a general review of the order or decision, or substitution of the order or decision which the Supreme Court thinks should have been made. Relief enables the quashing of the impugned order or decision upon one or more of a number of distinct established grounds - jurisdictional error, denial of procedural fairness, fraud and error of law on the face of the record: Craig v South Australia [1995] HCA 58; 184 CLR 163 at 175-176. 13The face of the record includes the reasons expressed by the Proper Officer: s.69(4) Supreme Court Act 1970.

14In Craig v South Australia, Brennan, Deane, Toohey, Gaudron and McHugh JJ at 179 identified the scope for intervention by way of relief in the nature of certiorari with regard to administrative tribunals:

"If such an administrative tribunal falls into an error of law which causes it to identify a wrong issue, to ask itself a wrong question, to ignore relevant material, to rely on irrelevant material or, at least in some circumstances, to make an erroneous finding or to reach a mistaken conclusion, and the tribunal's exercise or purported exercise of power is thereby affected, it exceeds its authority or powers. Such an error of law is jurisdictional error which will invalidate any order or decision of the tribunal which reflects it."

15In Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; 206 CLR 323, McHugh, Gummow and Hayne JJ referred to the non-exhaustive list of kinds of error in Craig v South Australia, and continued at 351 [82]:

"Those different kinds of error may well overlap. The circumstances of a particular case may permit more than one characterisation of the error identified, for example, as the decision-maker both asking the wrong question and ignoring relevant material. What is important, however, is that identifying a wrong issue, asking a wrong question, ignoring relevant material or relying on irrelevant material in a way that affects the exercise of power is to make an error of law. Further, doing so results in the decision-maker exceeding the authority or powers given by the relevant statute. In other words, if an error of those types is made, the decision-maker did not have authority to make the decision that was made; he or she did not have jurisdiction to make it."

16The reasoning in Craig v South Australia is not to be seen as providing a rigid taxonomy of jurisdictional error: Kirk v Industrial Court of New South Wales [2010] HCA 1; 239 CLR 531 at 574 [73]. However, the principles in Craig v South Australia constitute a sufficient statement where, as here, error is said to have been committed by an administrative decision maker exercising the function under s.62 MAC Act. 17The grant of prerogative relief is discretionary: Allianz Australia Insurance Limited v Crazzi [2006] NSWSC 1090; 68 NSWLR 266 at 303-304 [224]-[227]; Rodger v De Gelder [2011] NSWCA 97; 80 NSWLR 594 at 613 [84].

Relevant Provisions in the MAC Act and the Medical Assessment Guidelines

18Relevant parts of the statutory scheme in the MAC Act were described in the following way by Beazley JA in Rodger v De Gelder at 598 [7]-[11]: "[7] The MAC Act provides for a scheme of compulsory third-party insurance and payment of compensation relating to injuries sustained as a consequence of motor vehicle accidents. The objects of the Act include: to encourage early and appropriate treatment and rehabilitation: s 5(1)(a); to provide compensation for compensable injuries sustained in motor vehicle accidents and to encourage the early resolution of such claims: s 5(1)(b); and to keep third-party premiums affordable: s 5(1)(d). Section 5(2)(b) provides that the law relating to the assessment of damages in claims under the Act should be interpreted and applied in a way that acknowledges the clear legislative intention to restrict the level of non-economic loss compensation in cases of minor injuries. [8] The MAC Act, Ch 3 deals with motor accident injuries. Pursuant to s 44, the Authority may issue guidelines, known as the MAA Medical Guidelines, with respect to, inter alia, the assessment of the degree of permanent impairment of an injured person as a result of an injury caused by a motor accident: s 44(1)(c); and the procedures for the referral of disputes for assessment or review of assessments: s 44(1)(d). [9] Part 3.4 deals with the medical assessment of claims. Pursuant to s 59, the Authority is required to appoint medical assessors for the purpose of conducting medical assessments under the MAC Act. Section 60 provides that a medical dispute may be referred to the Authority for assessment by either party to the dispute or by a court or claims assessor and the Authority is to arrange for the dispute to be so referred. As this matter relates to a referral by a party, reference will only be made hereafter to such referrals. [10] A medical assessor to whom a medical dispute is referred is required to give a certificate as to the matters referred for assessment: s 61(1). Any such certificate is conclusive evidence as to the matters certified, relevantly, in any assessment by a claims assessor in respect of the claim concerned: s 61(2). There are exceptions to s 61(2) which are not presently relevant. [11] A matter referred for medical assessment under Pt 3.4 may be referred for assessment on one or more further occasions: s 62." 19A claimant under the MAC Act is not entitled to damages for non-economic loss unless the degree of permanent impairment as a result of injuries caused by the accident is greater than 10%: s.131 MAC Act. As Beazley JA observed in Rodger v De Gelder at 598 [10], subject to certain exceptions, the certificate of the medical assessor stands as conclusive evidence of the matters certified. 20It is appropriate to set out the terms of s.62 MAC Act, which provides as follows: "62 Referral of matter for further medical assessment (1) A matter referred for assessment under this Part may be referred again on one or more further occasions in accordance with this Part: (a) by any party to the medical dispute, but only on the grounds of the deterioration of the injury or additional relevant information about the injury, or (b) by a court or claims assessor. (1A) A matter may not be referred again for assessment by a party to the medical dispute on the grounds of deterioration of the injury or additional relevant information about the injury unless the deterioration or additional information is such as to be capable of having a material effect on the outcome of the previous assessment. (1B) Referral of a matter under this section is to be by referral to the member of staff of the Authority who is designated by the Authority for the purpose (in this Part referred to as the proper officer of the Authority). (2) A certificate as to a matter referred again for assessment prevails over any previous certificate as to the matter to the extent of any inconsistency." 21Medical Assessment Guidelines were made by the Authority for the purposes of ss.44 and 65(1) MAC Act. The Medical Assessment Guidelines contain the following provisions, concerning Proper Officer determination, at Clauses 14.3-14.8: "Proper Officer determination 14.3 The Allocation Review of an application for further assessment is to be conducted in accordance with Chapter 9. 14.4 When conducting an Allocation Review of an application for further assessment pursuant to Chapter 9, the Proper Officer is to determine whether the application is suitable for referral for further assessment. 14.5 When determining whether a matter should be referred for further assessment under section 62(1)(a) whilst conducting an Allocation Review, the Proper Officer shall have regard to: 14.5.1 the application and any reply; 14.5.2 any other applications and replies and/or MAS certificates on this medical dispute or any other medical disputes at MAS in relation to the same claimant not limited to the same matter, after the parties have been provided with a copy of these documents; and 14.5.3 the objects of the Act and the objects of MAS. 14.6 For the purposes of section 62(1A) the word 'material' includes that it is relevant and capable of altering the outcome of a dispute about: 14.6.1 reasonable and necessary treatment, from 'not reasonable and necessary' to 'reasonable and necessary' or vice versa; 14.6.2 related treatment, from 'not related' to 'related' or vice-versa; or 14.6.3 permanent impairment, from 'not greater than 10% whole person impairment' to 'greater than 10% whole person impairment' or vice-versa. 14.7 If the Proper Officer is not satisfied that the deterioration of the injury or the additional relevant information about the injury would have a materia! effect on the outcome of the application, the Proper Officer may dismiss the application. 14.8 The Proper Officer is to provide the parties with brief written reasons for the decision at the same time as, or as part of the notification to the parties, of the outcome of the Allocation Review as required by clause 9.2." 22Reference will be made later to Clause 12.10 of the Medical Assessment Guidelines (which appears at [54] below). 23The Medical Assessment Guidelines are a form of delegated legislation: Ackling v QBE Insurance (Australia) Ltd [2009] NSWSC 881; 75 NSWLR 482 at 498 [83].

24This part of the judgment contains my findings of fact for the purpose of the determination of these proceedings. There is no real factual dispute. The questions to be determined involve an assessment of the factual and legal consequences arising from relevant parts of the factual narrative. Events Between 2005 and March 2011 25On 27 October 2005, Mr Mackenzie was involved in a motor vehicle accident at West Wyalong. It is not necessary to recount the circumstances of that accident for the purpose of this judgment. Allianz has accepted liability so that Mr Mackenzie has some entitlement under the MAC Act. 26On 4 April 2008, an application was lodged on behalf of Mr Mackenzie for assessment of a Stabilisation and/or Permanent Impairment Dispute by the Medical Assistance Service ("MAS") for the purpose of s.58 MAC Act. 27On 22 April 2008, a MAS reply was lodged with the Authority on behalf of Allianz. 28On 21 July 2008, Dr Peter Wilkins, a MAS medical assessor, issued a Statement of Reasons and Certificate of Determination of Assessment (Exhibit A, pages 159-173). Dr Wilkins certified that the following injuries caused by the motor accident gave rise to a whole-person impairment ("WPI") which, in total, was not greater than 10%: (a) right shoulder - soft-tissue injury (now resolved); (b) right elbow - strain (now resolved); (c) back - soft-tissue injury (now resolved); (d) right shoulder - rotator cuff injury and posterior labral tear (surgically treated and now probably resolved). 29On 20 August 2008, Mr Mackenzie lodged an Application for Review of a Medical Assessment by the MAS with the Authority under s.62 MAC Act (Exhibit A, pages 174-191). 30On 1 September 2008, Allianz lodged a Reply to the review application, asserting that no basis had been demonstrated for a review. 31On 20 October 2008, Josephine Redmond, Acting Proper Officer, MAS dismissed the application for review upon the basis that she was not satisfied that there was reasonable cause to suspect that the assessment was incorrect in a material respect. Ms Redmond provided detailed reasons for this conclusion (Exhibit A, pages 202-205). 32On 22 April 2009, Mr Mackenzie made another application for further assessment of a permanent impairment dispute by the MAC (Exhibit A, pages 206-297). 33On 14 May 2009, Allianz replied to this application, once again contending that the application ought be dismissed (Exhibit A, pages 298-338). 34On 7 July 2009, Christopher Cornforth, described as "Case Manager for Proper Officer" with the MAS wrote to Mr Mackenzie's solicitors, accepting the application for further assessment (Exhibit A, pages 340-341). In that letter, Mr Cornforth expressed that he was satisfied that the information provided in support of the application "may have a material effect on the outcome of the application". Mr Cornforth concluded that the following injuries would be assessed in the further assessment: (a) right shoulder - rotator cuff injury; (b) back - L5/S1 disc prolapse; (c) right shoulder - posterior labral tear. 35On 25 August 2010, Dr Chris Oates, MAS medical assessor, issued a further certificate and reasons (Exhibit A, pages 343-362). Dr Oates certified that the following injuries caused by the motor accident gave rise to a permanent impairment which, in total, was not greater than 10%: (a) back - strain; (b) right shoulder - soft-tissue injury; (c) right elbow - strain. 36On 12 October 2010, Mr Mackenzie made application for a Review of a Medical Assessment by the MAS (Exhibit A, pages 363-393). 37On 28 October 2010, Allianz replied to the application, resisting the application for review (Exhibit A, pages 394-407). 38Between 9 November 2010 and 1 December 2010, further documents were provided to the Authority with respect to the review application. 39On 6 December 2010, Jeremy Lum, described as "Proper Officer" of the MAS, gave reasons for dismissing Mr Mackenzie's review application (Exhibit A, pages 429-432). Mr Lum concluded, at the end of detailed reasons, that he was not satisfied "that there is reasonable cause to suspect that the medical assessment is incorrect in a material respect". The 2011 Application 40On 16 March 2011, Mr Mackenzie made another application for further assessment of a permanent impairment dispute (Exhibit A, pages 433-572B). A large volume of documentary material (some 130 pages) was furnished in support of the application. It is this application, and its resolution, which has given rise to the present proceedings. 41On 5 April 2011, Allianz replied to the application, submitting that it ought be rejected (Exhibit A, pages 573-870). Once again, a significant volume of documentation (some 287 pages) accompanied Allianz's reply. 42On 14 April 2011, Bozena Rawicka, described as the "Registration Officer for Proper Officer" with the MAS, wrote to the solicitors for Allianz stating that an "allocation review of this dispute, which is a review of the file to determine how it will proceed, will be conducted on or before 20 April 2011" with both parties to be advised of the outcome (Exhibit A, page 871). 43On 14 April 2011, the solicitors for Mr Mackenzie furnished further written submissions to the Authority in support of the application (Exhibit A, pages 872-880). These submissions were described as having been "made in response to the reply filed by the insurer and otherwise in support" of the application for further assessment (Exhibit A, page 873). 44It is the submission made on 14 April 2011 which is central to Allianz's claim that it was denied procedural fairness. 45It is necessary to keep in mind that the Medical Assessment Guidelines provided a framework for the material to be supplied by the parties on a s.62 application - see Clause 14.5 (at [21] above) and Clause 12.10 (at [54] below). There was no entitlement for the parties to make further unsolicited submissions, without consent, after the Clause 14.5 material had been furnished. That said, the Proper Officer was entitled to receive additional material. It is not insignificant, in considering the stance taken by Allianz after 14 April 2011, that Mr Mackenzie's submission was in the possession of Allianz's solicitors for a month before the events of 12 May 2011. Clearly, there was an opportunity for Allianz to consider these submissions, and determine whether there was any rebuttal or correction to be made to them, in the event that the Proper Officer overruled their objection and determined that regard should be had to them. This is a significant aspect in assessing the claim of denial of procedural fairness. 46Mr Mackenzie's written submission of 14 April 2011 was four pages long (Exhibit A, pages 873-876). The submission made a number of specific points by reference to Allianz's reply. It made succinct submissions which, it might be thought, were capable of a prompt and succinct response from Allianz, if what was being said for Mr Mackenzie was contested. It might also be thought that Mr Mackenzie's submissions would prove helpful to an administrative decision maker, in focusing upon some important issues arising on the application. 47On 18 April 2011, the solicitors for Allianz wrote to "The Proper Officer" of the MAS in the following terms (Exhibit A, page 881): "The insurer does not consent to further submissions being lodged by the claimant and notes that the Medical Assessment Guidelines do not make provision for further submissions to be lodged following the lodgement of MAS 4A and 4R Forms. The insurer therefore insists that the additional undated submissions not be considered by MAS in allocating the MAS 4A - Further Medical Assessment Dispute and not be forwarded to the relevant MAS Assessor if the claimant's Application is accepted by the Proper Officer. We look forward to your urgent confirmation that the additional further submissions lodged by the claimant will be disregarded by MAS. We confirm that a copy of this correspondence has been sent to the claimant's solicitor." 48On 5 May 2011, the solicitors for Mr Mackenzie provided a further short submission to the Authority (Exhibit A, page 882): "We refer to our letter of 14 April 2011. In the claimant's submissions, the claimant indicated its objection to the report of Dr Lahz dated 20 February 2007 given that the insurer had failed to serve all reports of Dr Lahz in relation to the further examinations of January 2009 and January 2011 respectively. In addition to the objection to Dr Lahz's report, the claimant also now objects to the report of Dr Cummine as relied upon by the insurer in its MAS 4R reply. We do so on the basis that we have to hand a copy of the briefing letter to Dr Cummine in which he was provided with only one report of Dr Lahz and not the later reports. We only received that briefing letter on 5 May 2011, hence the reason for the late objection. In the circumstances of Dr Cummine not having before him all reports of Dr Lahz, we object to the report of Dr Cummine being admitted into the MAS proceedings on the issue of fairness to the claimant. Given that Dr Cummine has not been briefed with all relevant material, no probative value can be attached to his report, and accordingly it must be disregarded." 49Allianz complains about this letter, as well, as part of the claim of denial of procedural fairness. 50By letter dated 9 May 2011, the solicitors for Allianz objected and responded to the submission for Mr Mackenzie made on 5 May 2011 (Exhibit A, pages 883-884): "We refer to the Application for Further Assessment which is currently before MAS in relation to the above matter and to correspondence forwarded to MAS by the claimant's solicitor dated 5 May 2011. The insurer objects to the further correspondence of the claimant dated 5 May 2011 being considered by the MAS Proper Officer or the MAS Assessor and requests that these additional further submissions be disregarded and returned to the claimant's solicitors. The insurer notes that the claimant has previously relied on the report of Dr Lahz dated 20 February 2007 in its Application for Further Assessment dated 22 April 2009 and as such the material has already been before MAS and will be provided to the MAS Assessor in the event of any further assessment under Rule 14.11.2 of the Medical Assessment Guidelines. In relation to the report of Dr Cummine dated 2 February 2011, the insurer indicates that any further reports of Dr Lahz were not provided to Dr Cummine and therefore privilege has not been waived and the insurer is not obliged to provide any further report of Dr Lahz to the claimant or to MAS. Additionally, Dr Cummine only refers to Dr Lahz's report in relation to the history obtained on 20 February 2007. He does not place any specific reliance on her report and his assessment is based on his examination of the claimant. Therefore, the insurer is entitled to rely on the report of Dr Cummine dated 2 February 2011. Further, the insurer refers to its correspondence dated 18 April 2011 and requests that MAS confirm in writing that the further undated submissions of the claimant sent on 14 April 2011 will not be considered by the MAS Proper Officer or MAS Assessor. The insurer submits that constant additional submissions forwarded to MAS by the claimant's solicitor without the consent of the insurer after the MAS 4A and MAS 4R Forms have been lodged is inappropriate and outside the provisions of the Medical Assessment Guidelines. The insurer respectfully requests that these submissions should not be considered by the MAS Proper Officer and should be returned to the claimant's solicitors." 51By letter dated 10 May 2011, Christopher Cornforth, described as the "Case Manager for Proper Officer" of the MAS, wrote to the solicitors for Allianz (Exhibit, pages 885-886). Mr Cornforth said (emphasis added): "I refer to the various email communications sent between Moray & Agnew, Farrell Lusher and the Authority dated 10 May 2011. The Proper Officer makes the following comments. The Authority regrets the delay in forwarding comment about the numerous correspondences sent to MAS since 14 April 2011. This delay is due to the existing backlog of work within MAS. The Authority has been advising parties that this current backlog is still ongoing and will affect the timeliness of disputes. Not negating the current backlog, it is not encumbent upon the Authority to be continually reminding parties of the various clauses that can be used in the process of having a dispute assessed at MAS. Clause 12.10 is designed, in part, to assist parties in providing late additional documents to MAS when consent cannot be provided by the other party. The fact that a dispute has not been determined yet is in material given that the Proper Officer seeks mainly to know why such documents would be of assistance to the conduct of the assessment (current or not) or that exceptional circumstances exists for the late additional documents to be used in the actual or proposed assessment of the claimant. The latter is more relevant given the nature of a MAS 4A Application. The fact that both parties have negated to comment on clause 12.10 or have argued its relevance does not assist the Proper Officer in her decision making process given that the Authority is ultimately designed to assist parties in the resolution of disputes. Given this the parties are to be reminded that the Motor Accidents Assessment Service (MAAS) is a dispute resolution service with the objects to provide a timely, fair, cost effective system for the assessment of medical disputes under the Motor Accidents Compensation Act 1999 that is accessible, transparent, independent and professional. These assessments are to be conducted with as little formality and technicality as is practical and minimising the costs to the parties. Therefore in respect to the non-compliance by the parties as to clause 12.10 the Proper Officer is bound, as a result, by the Objects and the Aims of the Act and in so saying this must accept all the documents in the spirit of resolving a dispute promptly and with as little formality as possible. It is with this in mind that the Proper Officer would appreciate if the parties could take the above comments about clause 12.10 into consideration when they are lodging any late additional documents in the future with the Authority. A decision in the MAS 4A Application will be made on Thursday 12 May 2011." 52Two observations should be made about this letter. 53Firstly, it will be apparent from the letter that Mr Cornforth was not the "Proper Officer", who is clearly a female from the text of the letter. This aspect is of some significance with respect to Allianz's first ground for relief. The form and content of this letter supports a finding that Mr Cornforth is writing on behalf of the unidentified Proper Officer. Mr Cornforth was not purporting to express his own views. Rather, he was passing on the comments of the Proper Officer. 54Secondly, reference is made in it to Clause 12.10 of the Medical Assessment Guidelines, which states: "Late additional documents 12.10 No additional documents or information sought to be added to the list of documents to be referred to the Assessor may be lodged by either party after the lodgement of their application or their reply, except: 12.10.1 by consent of the other party; 12.10.2 in response to a specific request or direction from the Proper Officer, an Assessor or an officer of MAS, in circumstances where the Proper Officer is satisfied that any such document would be of assistance to the conduct of the assessment; or 12.10.3 if the Proper Officer is satisfied that exceptional circumstances exist; and any such documents must have been provided to the other party." 55At 12.27 pm on 10 May 2011, Mr Cornforth sent an email in the following terms to the solicitors for Allianz and Mr Mackenzie (Exhibit A, page 888) (emphasis added): "Dear Parties The Proper Officer is currently making a determination in this matter and is aware of the numerous correspondences that have been sent between the parties since the 14 April 2011. Neither party to this dispute has followed the appropriate guidelines for late additional documents. The parties are to be reminded that if a party to a dispute wishes to forward late additional information to MAS after the lodgement of the Application and the Reply, they must comply with clause 12.10 of the Medical Assessment Guidelines. This is especially so if consent has not be provided by the other party. Late additional documents can include any submissions that will assist a MAS Assessor in their assessment of the claimant. But these submissions must comply with clause 12.10 of the Medical Assessment Guidelines. To date neither party has made the use of or commented on clause 12.10. The Proper Officer wishes to also remind the parties of the Objects and Aims of the Authority and requests that no further correspondence be sent to MAS unless purposely warranted. Yours faithfully Christopher Cornforth Case Manager Motor Accidents Assessment Service" 56At 12.31 pm, the solicitors for Allianz replied to Mr Cornforth's email in the following terms (Exhibit A, page 889): "Please confirm that the proper officer will therefore not consider any information contained in any correspondence received after the Reply was lodged." 57At 2.14 pm on 10 May 2011, Mr Cornforth replied to the solicitors for Allianz in the following terms (Exhibit A, page 890): "I will discuss your email with the Proper Officer later today. A decision in this will then be relayed to the parties shortly afterwards." 58At 2.48 pm on 10 May 2011, Mr Mackenzie's solicitors sent an email to Mr Cornforth in the following terms (Exhibit A, page 892): "Given there is no assessor and/or the matter has not been referred to an assessor for further assessment at this stage we query the relevance of clause 12.10 to the present application to be determined. Rather, we consider the late documents are of relevance to the Proper Officer and further will be of assistance in determining the relevant issues for consideration in the present application. We confirm those documents were provided to the other party. We must say we consider the claimant is disadvantaged by the late notice of the Authority's position on the issue given that the documents were filed quite some time ago. In any event, if you require anything further from the claimant, please advise." 59At 5.17 pm on 10 May 2011, Mr Cornforth sent an email to the solicitors for Allianz and Mr Mackenzie (Exhibit A, page 893). The content of this email was in identical terms to the letter of 10 May 2011 (Exhibit A, pages 885-886). 60At 9.37 am on 11 May 2011, the solicitors for Allianz sent an email to Mr Cornforth in the following terms (Exhibit A, page 894): "Pursuant to Guideline 12.10.3 additional documents or information should only be considered by the proper officer in the absence of consent by the other party if the proper officer is satisfied that exceptional circumstances exist. We respectfully submit that no exceptional circumstances exist in this case. With respect in the absence of an application pursuant to clause 12.10 the proper officer is not entitled to 'accept all the documents in the spirit of resolving a dispute promptly and with as little formality as possible'. Were that to be the case no party would make application to admit additional information or documents pursuant to clause 12.10 where in those circumstances the proper officer 'must accept all the documents in the spirit of resolving a dispute promptly and with as little formality as possible'. We consider that the proper officer in the circumstances of this case must reject all additional information unless exceptional circumstances exist. We request that you advise the exceptional circumstances which exist in this matter. We look forward to receiving your response prior to a decision in the MAS 4A application is made by the proper officer." 61At 10.36 am on 11 May 2011, Mr Cornforth replied to the solicitors for Allianz as follows (Exhibit A, page 895): "I acknowledge receipt of your email dated 11 May 2011. Before the Proper Officer can comment on your email she would appreciate further comment from Farrell Lusher as to the late additional information. Therefore Farrell Lusher has until 9.00am tomorrow, Thursday 12 May 2011 to make any additional submissions to the Authority." 62At 5.19 pm on 11 May 2011, the solicitors for Mr Mackenzie emailed Mr Cornforth as follows (Exhibit A, pages 897-898) (emphasis added - on the procedural fairness issue): "We refer to the emails of 10 and 11 May 2011. We repeat our position as stated previously and our communications of 10 May 2011. The additional documents in issue in this matter relate largely to further submissions by the claimant. It is submitted that those documents will be of relevance to the Proper Officer in considering the application before her. Largely, those submissions seek to address matters set out in the reply of the insurer which the claimant asserts were factually incorrect. The insurer asserted that some of the documents relied upon by the claimant in its application had already been considered by MAS. That is not correct and the submissions particularly at page 1 sought to address those matters. In particular the further document that was attached was a statement of reasons of MAS dated 6 December 2010 which gives a clear and accurate history of the matter and in particular the background to the application for further assessment. Hence it is of significance in the determination by the Proper Officer as to the whether the criteria for a further application is met pursuant to section 62. Given that the MAAS is focussed on providing dispute resolution in a timely and fair manner and with as little formality as possible, the further submissions and documents which the claimant seeks to have admitted meet the criteria and the objective of the guidelines. There is absolutely no prejudice and/or element of unfairness caused to the insurer. With respect, the claimant could not reasonably speculate as to what the submissions made by the insurer would be. On any interpretation it is open as a matter of reasonableness and fairness that the claimant be afforded an opportunity to address the respondent's submissions particularly if those submissions are as is the claimant's view, not complete or make factually incorrect assertions. The additional documents of the claimant are relevant in that they address the specific issues and matters raised for the first time in the insurer's reply. That is, until receipt of the insurer's reply, the claimant was unaware of what is in issue and hence in circumstances where the insurer for the first time raises matters, the claimant ought be afforded an opportunity to address those matters and at the very least (and as in this case) draw to the attention of the Proper Officer any factual inaccuracies and/or address matters which in the claimant's view were not addressed completely or represented accurately by the insurer. That in itself would amount to exceptional circumstances. It is imperative that the Proper Officer has available to her and affords proper consideration to further submissions on those specific points. Accordingly we remain of the view that it is in the spirit of the objects and aims of the act to allow the additional documentation, and otherwise observe the respondent has not identified any basis on which it is disadvantaged and or prejudiced by the documents sought to be added or further demonstrated any way in which the inclusion of the documents for consideration by the Proper Officer conflicts with the Act and the aims and objects of the same. The claimants could not have reasonably been part of the initial application. Hence in all the circumstances we believe that the appropriate course is as set out in the email proposed by Mr Cornforth in his email of 10 May 2011." 63At 5.33 pm on 11 May 2011, Mr Cornforth acknowledged receipt of the email from Mr Mackenzie's solicitors and said (Exhibit A, page 899): "I am meeting with the Proper Officer tomorrow morning and I then expect to soon afterwards advise the parties of the outcome to this issue." 64At 11.56 am on 12 May 2011, Mr Cornforth sent an email to the solicitors for Allianz and Mr Mackenzie as follows (Exhibit A, page 900): "I refer to previous emails from Moray & Agnew and Farrell Lusher dated 11 May 2011. These emails were in response to MAS email dated 10 May and 11 May 2011. The Proper Officer has considered the submissions from the parties and makes the following comments. The exceptional circumstances that exist in this matter is that it is complex and requires additional information so that the MAS Assessor may be able to assess the matter fully, thus allowing them access to both sides of the argument without prejudice. Further the acceptance of the late additional information would hopefully negate the need for another MAS 4A Application at a later date. Therefore all late additional documents have been accepted by the Authority and will form part of the dispute that is before MAS. The decision in this matter will be forwarded soon." 65The effect of this decision was that the Proper Officer had decided to accept and consider "all late additional documents", including Mr Mackenzie's submission in reply. 66At 12.03 pm on 12 May 2011, the solicitors for Allianz sent the following email to Mr Cornforth (Exhibit A, page 902): "In view of your decision and in the interests of procedural fairness we request that we be given additional time to now respond to the claimants further submissions prior to the proper officer making a decision." 67It should be kept in mind that Allianz was seeking to respond to Mr Mackenzie's submission in reply. Ordinarily in litigation, a party is not entitled automatically to respond to a submission in reply. The application of Allianz to make further submissions sought a further indulgence from the Proper Officer. This is especially so where Allianz had Mr Mackenzie's submission in reply since 18 April 2011, with the short additional reply being with Allianz since 5 May 2011. The nature of any submission which Allianz would seek to advance concerning Mr Mackenzie's reply has not been revealed, either in later submissions to the Authority or indeed in argument before this Court on the present claim for relief. 68At 12.10 pm, Mr Cornforth sent an email to the solicitors for Allianz and Mr Mackenzie in the following terms (Exhibit A, page 903): "I refer to previous correspondence in this matter. Please find attached the following correspondence from MAS to Farrell Lusher dated 12 May 2011 accepting their MAS 4A Application. Copies of this letter will be sent in the mail. In light of the Moray & Agnew email dated 12 May 2011, the Proper Officer will accept any further documents from the parties in the spirit of obtaining a full and frank understanding of the issues at hand, prior to the dispute proceeding to assessment by a MAS Assessor. Please forward any further documents to the Authority by 26 May 2011." 69Attached to the email was a letter dated 12 May 2011 addressed to Mr Mackenzie's solicitors. The letter constituted the decision for the purpose of s.62 MAC Act. It was signed by Mr Cornforth, described as "Case Manager for Proper Officer" of the MAS. The letter stated (Exhibit A, pages 904-907) (emphasis added - concerning the Proper Officer ground): "The Proper Officer has considered the application for further assessment, the reply and all supporting documentation submitted in this matter. Farrell Lusher representing the claimant have applied for a further based on the notion that there is additional relevant information regarding causation, diagnosis and analysis of the injuries sustained by the claimant in the Motor Vehicle Accident (MVA) on the 27 October 2005. This information is contained in the reports of, Dr Bodel dated 2 August 2010, Dr Endrey-Walder dated 2 August 2010 and 29 September 2010, Dr Murray Hype Page dated 18 November 2010, and Associate Professor John D Yeo dated 26 November 2010. Within the above reports Dr Bodel, Dr Endrey-Walder and Dr Murray Hype Page they all collaborate the fact that the claimant's injuries were sustained in the MVA. Particular reference is made to the findings by Dr Hyde Page which concludes as to the issue of causation that there is no Whole Person Impairment (WPI) arising from any pre-existing condition to the claimant's right shoulder or lumbar spine. He otherwise determines that the WPI for the claimant is in the order of 28%. In addition to this, is the non-medical evidence by Mr Daniel Victor which deals with the matter of causation, being matters upon which there was previously an absence of evidence and in such absence various incorrect factual assumptions were made in the previous assessment by MAS which are relevant to causation. Furthermore documents A1 to A25 and A30 show that the treatment provided to the claimant has been of an ongoing nature without interruption. This seems to contradict the previous findings of MAS Assessor Chris Oates in his assessment of the claimant. Whereby he commented that the aggravation was only a temporary aggravation whereby the documents attached to this MAS 4A Application suggests that the aggravation is rather more significant and ongoing. In reply Moray & Agnew representing the Insurer Allianz submits that the documents provided by Farrell Lusher do not constitute additional relevant information as all the opinions and evidence presented in the MAS 4A Application have essentially previously been expressed in evidence before MAS. It is therefore submitted that the MAS 4A Application should be dismissed. In supporting this claim for dismissal, reference is made to two recent judicial decisions. These judicial decisions are Glover-Chambers v Motor Accidents Authority of New South Wales [2010] NSWSC 17 McCallum J, and Alavanja v NRMA Insurance Ltd [2010] NSWSC 1182. In addition to making references to these recent judicial decisions, Moray & Agnew addresses each document found within the MAS 4A Application and gives reasons why they are not additional and relevant to the dispute at hand. The Proper Officer has considered both sides to this dispute and makes the following comments. It is reasonable for Moray & Agnew to refer to the recent judicial findings of Glover-Chambers and Alavanja. In doing this they have questioned the validity of some of the Farrell Lusher documents. While on the other hand Farrell Lusher have done the opposite and provided reasons as to why their documents are valid. Both sides have legitimate and reasonable justifications for what they have concluded. However this does not resolve the issue at hand which is, should the Proper Officer accept or dismiss the MAS 4A Application. In making a determination in this matter the Proper Officer has ascertained that the key issue that is before MAS (Medical Assessment Service) relates to the issue of causation and how will this affect the previous determinations made by MAS. The Proper Officer makes reference to the previous Review Application by Farrell Lusher in Matter 2009/04/1411. She agrees with the comment found in paragraph 17 of the Statement of Reasons, that if there is additional information pertaining to the issue of causation that Farrell Lusher should lodge an application for further assessment Farrell Lusher have done this. In lodging their application for further assessment Farrell Lusher have provided a variety of documents that gives rise to the suggestion that an assortment of incorrect factual assumptions were made, about the Motor Vehicle Accident (MVA) and its subsequent effects on the claimant. If this issue was proved to be accurate there could be a material difference to the previous MAS Assessments). This could take the claimant over the 10% WPI threshold. It is noted that the Insurer has disputed this aspect of the further application. Together with the issue of causation are the findings of four different doctors that give rise to the proposition that the claimant may be over the 10% WPI threshold. It has been calculated that the claimant's Whole Person Impairment (WPI) seems to range from 14% to 28%. The Proper Officer remarks that even though some aspects of the documents at hand may be interpreted to be open to debate and discussion it is not the position of the Proper Officer to ultimately say what is correct and what is not. This is especially so when there are two distinct and reasonable arguments before the Authority. In saying this the Proper Officer is ultimately a 'Gate Keeper' whose role is to assist in the resolution of disputes and not pass judgement on issues that fall outside of her role. Nevertheless the Proper Officer does recognise the value of the argument that Moray & Agnew have forwarded but she cannot ultimately say that this is correct or not. But was does become apparent while reading the documents at hand is the issue of causation. It is with this in mind that the Proper Officer makes reference also to Glover-Chambers v. Motor Accidents Authority of New South Wales [2010] NSWSC of 3 February 2010 whereby in paragraph 26 of the McCallum J decision her honour states that: 'Provided that the relevance threshold is met, the final assessment of the additional information is a matter for a medical assessor, it should not, in my view, be pre-empted by a proper officer of the authority.' The above infers that the deterioration of the injury and/or additional relevant information must be capable of altering the outcome, but it does not mean that the Proper Officer must be persuaded that it will have that effect. As a result, based on the evidence before her, which takes into account the core issue of causation, the Proper Officer believes that there may be a possibility that the claimant is over the 10% WPI threshold. Therefore the Proper Officer is satisfied that the deterioration of the injury or the additional relevant information about the injury is such as to be capable of having a material effect on the outcome of the previous assessment as required by section 62(1 A) of the Motor Accidents Compensation Act 1999. The matter will now be referred for further medical assessment of the dispute relating to permanent Impairment. In accordance with clause 14.12 of the Medical Assessment Guidelines the further assessment will involve consideration of all aspects of the original Assessor's assessment afresh and will include ail injuries assessed by the original Assessor and any additional injuries listed on the application or reply. Injuries considered by other Assessors will not be reassessed if there is no additional relevant information about them or if deterioration is not addressed in the application. The following injuries will be assessed in the further assessment: * Back - Disc injury/aggravation of pre-existing asymptomatic degenerative condition/ soft tissue injury and L5/S1 disc prolapse * Shoulder - Soft tissue injury/ rotator cuff injury and posterior [labral] tear An officer of MAS will be in contact with you shortly to advise of the details of any medical appointment/s organised." 70Allianz's first ground for relief challenges the decision contained in this letter. Allianz submits that it was for the Proper Officer to make the relevant decision, and to give reasons for the decision, to comply with s.62 MAC Act and Clause 14.8 of the Medical Assessment Guidelines. As will be seen, Allianz submits that it was Mr Cornforth, who was not the Proper Officer, who purported to make this decision and to provide reasons for it. 71On 30 May 2011, the solicitors for Allianz wrote to Ms Jane Probert, as the Proper Officer with the MAS, asserting that there were "significant and fundamental legal errors in your determination", with those errors going to "the legality of the decision" and operating "to render the decision null and void". The letter complained of a number of features of the decision of 12 May 2011, including: (a) there was no actual or apparent authority for the named case manager to write to Allianz, or to make any relevant decision on the application under s.62 MAC Act; (b) Allianz was denied procedural fairness in the making of the decision, in that the Proper Officer refused Allianz an opportunity to respond to two sets of further and substantial written submissions from Mr Mackenzie as to the application, that were filed and served late and out of time; (c) that the decision failed in a number of other respects to comply with the requirements of s.62 MAC Act. 72The solicitors for Allianz invited a reconsideration of the decision-making function under s.62 MAC Act, citing as authority for this approach Allianz Australia Insurance Limited v Crazzi and the authorities referred to therein. The letter sought a formal acceptance of this position and an expression of willingness to reconsider the purported determination. Confirmation was sought by 3 June 2011, with an indication that should such confirmation not be received by that date, Allianz had given instructions to commence proceedings seeking prerogative relief in this Court (Exhibit A, pages 908-910). 73The letter did not advance any submission in response to Mr Mackenzie's submission in reply of 18 April 2011 and 5 May 2011. Rather, the solicitors for Allianz took the opportunity to assert that a number of errors had been made in the s.62 decision itself. 74At 10.22 am on 30 May 2011, Mr Cornforth emailed the solicitors for Allianz in the following terms (Exhibit A, page 912): "I acknowledge receipt of your email dated Monday 30 May 2011. Before the Proper Officer can make her decision in this matter, she requests that Farrell Usher forwards submissions in response to your email. Therefore Farrell Usher has until 12:00 noon on 1 June 2011 to provide the Authority with submissions. On the 1 June 2011 the Proper Officer will consider the submissions from the parties. It would be appreciated if both parties could email back to the Authority and acknowledge that they have received this email." 75On 31 May 2011, the solicitors for Mr Mackenzie wrote to the Authority rejecting Allianz's contention that there had been a denial of procedural fairness and submitting, as well, that the Proper Officer did not have power or jurisdiction to revoke the decision made on 12 May 2011. It was said that Allianz's letter of 30 May 2011 was "in effect a challenge of the Proper Officer's decision" and that "we do not think it proper for the claimant to respond to those submissions". It was observed that the Proper Officer was not in error, in any event. It was submitted that the scheduled appointment for the further medical assessment of Mr Mackenzie on 7 June 2011 ought proceed (Exhibit A, pages 913-914). 76On 1 June 2011, Megan Venters, described as "Team Leader for Proper Officer" with the MAS wrote to the solicitors for Allianz in the following terms (Exhibit A, page 195) (emphasis added): "I refer to the above matter and correspondence received from Moray & Agnew dated 30 May 2011 and correspondence received from Farrell Lusher dated 31 May 2011. The Proper Officer has viewed both parties submissions and confirms her decision to accept this MAS 4A Application for Further Assessment. The MAS Assessment appointment scheduled with Assessor Neal Thomson on 7 June 2011 at 3.00pm will not be cancelled and we ask that the claimant attend this appointment. " 77On 2 June 2011, Allianz filed the Summons which initiated the present proceedings. 78On 6 June 2011, Kirby J made orders staying the further medical assessment of Mr Mackenzie until the final determination of this Court or further order.

Ground 1 - The Decision and Reasons of 12 May 2011 Were Not those of the "Proper Officer" So That No Valid Decision Was Made Under s.62 MAC Act and Paragraph 14.8 Medical Assessment Guidelines

79Before turning to the submissions advanced in favour of and against this ground, it is appropriate to refer to a procedural issue to which reference has already been made. 80The Authority was granted limited leave to make written submissions, confined to the issue of the Proper Officer's decision-making procedure under s.62(1A) MAC Act. Pursuant to this grant of leave, Mr Hutton filed written submissions. 81Mr Robinson SC submitted that the written submissions of Mr Hutton travelled further than the limits of the grant of leave. Having heard submissions on this aspect, I made a ruling during the hearing (without deciding whether the written submissions extended beyond the grant of leave) confirming that the Authority ought be permitted to rely upon the written submissions as filed, so as to assist the Court in the resolution of the issues in dispute between the parties (T42-44, 46-47, 9 November 2011). 82Mr Romaniuk adopted the written submissions of the Authority with respect to the Proper Officer ground (T41). 83Mr Robinson SC complained about this aspect of the proceedings. I observe that Allianz had an opportunity to consider and respond to the submissions of the Authority prior to the hearing on 9 November 2011, but I made provision, in any event, for Allianz to file further written submissions after the hearing with respect to the matters raised by the Authority. Mr Robinson SC furnished further written submissions pursuant to this grant of leave. 84As stated during the hearing, I was satisfied that the written submissions of the Authority would assist the Court in the resolution of the issues raised in the proceedings, so that it was appropriate that those submissions be placed before the Court. I am satisfied that the parties to the proceedings have each had an opportunity to make submissions with respect to this ground of review. I will move to determine the ground in light of the submissions which have been made. 85In any event, as I have already observed (at [6] above), I accept that the Authority's submissions fell within the grant of leave on 24 June 2011. Submissions of Allianz 86Mr Robinson SC pointed to the term "Proper Officer" in s.62(1B) MAC Act and emphasised the need for the relevant decision to be made by a member of staff of the Authority who is so designated. He submitted that the decision of 12 May 2011 (see [69] above), properly read, ought lead to the conclusion that the decision was made by the Case Manager, Mr Cornforth, and not the Proper Officer. It was submitted for Allianz that the decision did not permit a conclusion that it was the Proper Officer who was providing reasons for the decision, in accordance with paragraph 14.8 Medical Assessment Guidelines. In these ways, Mr Robinson SC submitted that the first ground for review was made out. 87It was submitted for Allianz that, in signing the decision of 12 May 2011, Mr Cornforth did not assert any authority to write for the Proper Officer, or to act for the Proper Officer. Rather, it was submitted that he simply purported to report on what the Proper Officer appeared to have done and, arguably, why he or she had done it. 88It was submitted that no evidence had been tendered on behalf of the Authority concerning any agency or authority which Mr Cornforth had to act for the Proper Officer, and that an adverse inference should be drawn in accordance with the principles in Jones v Dunkel [1959] HCA 8; 101 CLR 298. 89Mr Robinson SC submitted that Clause 14.8 of the Medical Assessment Guidelines created a mandatory requirement that the Proper Officer give reasons for the decision, with this requirement being designed to provide statutory procedural fairness. He contended that a breach of a mandatory provision designed to be fair to the parties, results in the invalidity of the ensuing administrative decision: SAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 24; 228 CLR 294. 90It was submitted for Allianz that the Case Manager did not have delegated authority to make the decision for the Proper Officer, or to set out his or her reasons. It was submitted that ss.99A and 205 MAC Act contained the only permissions given by the legislation to persons under that Act, and that the Proper Officer is not given the power to delegate. Accordingly, it was submitted that it was unlawful for the Proper Officer to delegate the decision-making power or the reason-giving power to the Case Manager. 91Mr Robinson SC submitted that, to be valid pursuant to s.62 MAC Act, all that had to happen was for the Proper Officer to make a decision and to provide to the parties a brief statement of the Proper Officer's reasons, but this did not happen. Accordingly, he submitted the purported decision was wholly defective and ought be set aside. Submissions of Mr Mackenzie 92Mr Romaniuk submitted that the decision dated 12 May 2011 was plainly the decision of the Proper Officer, and was recorded as such by Mr Cornforth. He submitted that so much was clear from a consideration of the text of the decision and, if it was necessary, the dealings surrounding it as revealed in the communications which passed between officers of the Authority and the solicitors for Allianz and Mr Mackenzie. 93Mr Romaniuk submitted that Clause 14.8 of the Medical Assessment Guidelines did not require that the Proper Officer himself or herself publish and sign the brief written reasons. He submitted that Mr Cornforth's recording of the Proper Officer's decision and reasons conformed with the requirements of Clause 14.8. 94Counsel submitted that Allianz's construction effectively required the words in Clause 14.8 to be read as the "Proper Officer is to personally provide the parties with brief written reasons for the decision ... " or some other addition of words to give effect to the submission. Mr Romaniuk submitted that this was not an appropriate construction of Clause 14.8. Reliance was placed upon Hodgson v Crane [2002] NSWCA 276; 55 NSWLR 199 at 209-210 [36]-[39]. Submissions of the Authority (By Leave) 95Mr Hutton made submissions concerning the Authority's procedures in relation to Proper Officers under s.62(1B) MAC Act. He submitted that correspondence from Mr Cornforth and, on one occasion, Ms Susan Hickey, provided a basis for the Court to find that the Authority's procedure was for the Proper Officer to communicate with the parties to a dispute through other officers of the Authority. He submitted that the evidence provided a basis for the Court to find that the referral decision of 12 May 2011 was made by the Proper Officer, and that the role of the Case Manager was only to draw up the Proper Officer's decision and reasons, and to convey them to the parties to the dispute. 96Counsel referred to the presumption of regularity and submitted that, absent proof to the contrary, the Court should presume that the conditions necessary to the valid making of an administrative decision have been fulfilled: Minister for Natural Resources v New South Wales Aboriginal Land Council (1987) 9 NSWLR 154 at 164. 97Counsel submitted that the Proper Officer's procedure accorded with accepted administrative law principles, with reference being made to authorities concerning the use of an agent to perform non-discretionary clerical tasks: O'Reilly v State Bank of Victoria Commissioners [1983] HCA 47; 153 CLR 1, in particular, at 18 (per Mason J). 98Mr Hutton submitted that the Court had a basis for finding that the general practice of the Authority did not breach Clause 14.8 Medical Assessment Guidelines because, on a proper construction of the MAC Act and the Medical Assessment Guidelines, the duty in Clause 14.8 may be satisfied by the Proper Officer causing reasons to be provided to the parties through a Case Manager. He submitted that this function was a non-discretionary clerical function of the type described in the authorities. 99It was submitted that consideration ought be given to the role of the Proper Officer under the MAC Act and the Medical Assessment Guidelines, with the Proper Officer being required to form a wide range of functions under ss.62 and 63 MAC Act and, more importantly, the Guidelines. It was submitted that the functions of the Proper Officer under the Guidelines range from the relatively trivial (such as directing correspondence under Clause 3.7) to the serious (for example, dismissal of an application for medical assessment under Clause 10.1). 100Although the MAC Act did not require that a Proper Officer have any particular qualifications or meet any criteria to fall within s.62(1B) MAC Act, Mr Hutton submitted that the Court could infer from the terms of the Guidelines that only a limited range of persons employed by the Authority would be appropriately qualified and experienced to exercise all of the relevant functions. In the circumstances, it was submitted that it was highly unlikely that the persons who drafted the Guidelines intended that every function conferred on the Proper Officer was to be exercised by the Proper Officer personally, and not through an agent. 101It was submitted that the Guidelines, as a form of delegated legislation, are to be interpreted as a whole and that they impose on the Proper Officer a number of obligations to provide reasons, advise or notify parties to a dispute, using variable language without any apparent reason for the different expressions (Clauses 9.2, 9.17, 16.15, 17.5 and 17.72). It was submitted that the variable language used suggests that those who drafted the Guidelines did not intend the words "provide the parties with brief written reasons" in Clause 14.8 to be interpreted so as to require the reasons to be provided personally by the Proper Officer. 102Finally, Mr Hutton submitted that, in deciding whether the obligation to communicate the decision in Clause 14.8 must be exercised personally, regard should be had to the objects of the MAS set out in Clause 1.14 of the Guidelines. The first object is "to provide a timely, fair and cost effective system for the assessment of medical disputes" under the MAC Act that is "accessible, transparent, independent and professional". The Guidelines are to be interpreted in accordance with that object (Clause 1.13) and the Proper Officer is required to have regard to it in exercising his or her functions (Clause 1.16). 103Mr Hutton submitted that the Court might take the view that the objects would not be well served by an interpretation of the Guidelines that required the Proper Officer to exercise all functions conferred on him or her personally. 104As mentioned earlier, Mr Romaniuk adopted the submissions of Mr Hutton so that these submissions ought be taken as being made on behalf of Mr Mackenzie as well. Allianz's Reply 105As mentioned earlier, I granted leave to Allianz to provide further written submissions after the hearing in response to the submissions made by Mr Hutton, and adopted by Mr Romaniuk at the hearing. 106Allianz submitted that an examination of surrounding correspondence did not permit a conclusion to be drawn concerning the Authority's practice with respect to written communications from the Proper Officer. A contrast was made between letters of a machinery nature and formal decisions under the MAC Act. 107Mr Robinson SC submitted that the evidence revealed that, at times, the Proper Officer did sign in person (for example, Jeremy Lum and Josephine Redmond - see [31] and [39] above). 108Accordingly, Mr Robinson SC submitted that there was no basis on the evidence for a finding that, as a matter of practice, the Proper Officer does not communicate his or her own statutory decisions to the parties. 109Allianz submitted that the Court ought reject the proposition that, as a matter of fact, the Case Manager's letter of 12 May 2011 was merely the act of an agent. It was submitted that the Case Manager did not purport to act as an agent. Mr Robinson SC submitted that the Case Manager was performing an important statutory task, in discharge of the obligation under Clause 14.8 of the Medical Assessment Guidelines. This was not, he submitted, a routine or non-discretionary task. 110It was submitted for Allianz that the relevant provisions did not permit a Proper Officer to "simply have a chat with the Case Manager about the reasons for a decision (if that is what happened here, we do not know) and to then permit that Case Manager to go and draw up (applying his or her own skill and judgment and flair) and to send out a formal document under the Guideline and to present that to the parties [as] the Proper Officer's formal statutory reasons". 111It was submitted for Allianz that this must be so, for a decision under s.62 MAC Act "as finally balanced as the decision here". If the Proper Officer simply left it to a fellow staff member to create and deliver the decision and reasons, Allianz submitted that it might not capture and convey the real reasons of the statutory decision maker. 112Allianz submitted that the plain words of Clause 14.8 speak for themselves, with the words "is to" meaning "must". Accordingly, it was submitted that the Proper Officer must create and deliver (or cause to be delivered) his or her own Statement of Reasons for an important administrative decision. Whilst it can be conveyed to the parties by others, Mr Robinson SC submitted that it cannot be created and conveyed by others. Decision Concerning First Ground for Review 113It is for Allianz to discharge the onus of proving, on the balance of probabilities, facts grounding an entitlement to relief: Roos v Director of Public Prosecutions (1994) 34 NSWLR 254 at 259. 114In the course of the hearing before me, the Court was informed that the issue raised in the first ground of review had been argued in proceedings before Hislop J, in which judgment was reserved. Following delivery of judgment in that matter, counsel drew my attention to the decision: Insurance Australia Limited trading as NRMA Insurance v Falco [2012] NSWSC 54; 60 MVR 175 ("Falco"). 115In the course of that judgment, Hislop J considered a number of submissions which were advanced, as well, in the present proceedings. It was necessary for his Honour to apply those principles to the evidence in that case, for the purpose of making necessary findings. Having done so, his Honour granted relief and quashed the relevant decision. 116His Honour's conclusions on issues of construction and matters of law should, as a matter of judicial comity, be followed by me unless I am convinced that the decision was wrong: Michael Realty Pty Limited v Carr [1975] 2 NSWLR 812 at 820; Segal v Waverley Council [2005] NSWCA 310; 64 NSWLR 177 at 193 [57]. To the contrary, I agree with the relevant analysis of Hislop J, which I will set out, before moving to determine the first ground. 117With respect to Allianz's ground in that case that the relevant letter did not comply with the requirements of Clause 14.8 of the Medical Assessment Guidelines, in that it was not provided to the parties by the Proper Officer, Hislop J concluded at 182 [24]-[26]: "[24] Medical Guideline 14.8 implicitly requires the Proper Officer to determine his reasons for his decision, reduce those reasons to writing and provide the written reasons to the parties. [25] The Macquarie Dictionary defines 'provide' as to furnish or supply, to afford or yield. [26] In my opinion, provided it is clear that the reasons for decision are those of the Proper Officer (perhaps best achieved by the Proper Officer signing the statement of reasons), the agent of the Proper Officer may perform the non-discretionary clerical tasks of reducing the reasons to writing and furnishing or supplying those reasons to the parties. There is ample authority that use of an agent to perform non-discretionary clerical tasks is unobjectionable - see O'Reilly v State Bank of Victoria Commissioners (1983) 153 CLR 1 per Mason J." 118I agree with his Honour's analysis of the construction and operation of Clause 14.8. 119It is appropriate to construe relevant provisions of the MAC Act and the Medical Assessment Guidelines, for the purpose of determining whether this ground is made out. 120Section 62(1B) MAC Act requires the Authority to ensure that referral of a matter under that section is to be by referral to a designated member of staff described as the "Proper Officer". It may be readily inferred that the legislation insists upon a person, who possesses the requisite qualifications and skills, making a decision for the purpose of s.62 MAC Act. However, that provision does not insist upon the Proper Officer solely and directly communicating with, and corresponding with, the parties to the dispute. What is required is that it ought be demonstrable that it is the Proper Officer who is making the relevant decision under the statute, and who is the source of the reasons provided under Clause 14.8 of the Guidelines. 121The Guidelines constitute a form of delegated legislation. The objects of the Guidelines are notable, including the provision of a timely, fair and cost-effective system for the assessment of medical disputes under the MAC Act that is accessible, transparent, independent and professional (Clause 1.14.1), and the establishment and maintenance of effective communication and liaison with stakeholders concerning the role of the MAS (Clause 1.14.5). 122As Hislop J concluded in Falco at 182 [26], the agent of the Proper Officer may perform non-discretionary clerical tasks of reducing reasons to writing, and furnishing or supplying those reasons to the parties. I do not consider that this approach is in conflict with the proper construction of Clause 14.8 of the Medical Assessment Guidelines. 123I accept the submission of Mr Mackenzie that the construction of Clause 14.8 urged by Allianz involves the insertion of a word which is not there - Allianz's construction requires Clause 14.8 to be read as the "Proper Officer is to personally provide the parties with brief written reasons for the decision ...". 124In my view, the construction urged by Allianz is inconsistent with a degree of flexibility in the practical operation of guidelines of this type. This construction would allow form to overshadow substance. 125There is no reason, in law, why the Proper Officer cannot communicate reasons in a letter which is signed and sent by someone else. The important question is whether a fair reading of the decision of 12 May 2011 leads to the conclusion that it is the Proper Officer who has made the decision, explained by brief reasons, which were communicated in writing by Mr Cornforth as Case Manager. 126I turn then to the letter of 12 May 2011 itself. If there is material in that letter which supports a conclusion that the decision maker is the signatory, Mr Cornforth as Case Manager, and not the Proper Officer, then Allianz will have some foundation for the relief sought in accordance with the first ground. 127I observe, in this respect, that the judgment of Hislop J in Falco at 181 [22] sets out the purported s.62 MAC Act decision in that case. Although the letter refers, at times, to the "Proper Officer" having reached certain conclusions, at one point the Case Manager used the first person, saying "I refer to ...". Content of that type may serve to support a conclusion that it is the Case Manager who has reached the decision, with the letter expressing itself in those terms. However, there is no such statement in the letter in this case. 128It is necessary to read the letter as a whole: Rodger v De Gelder at 617 [103], 618 [107], [110]. A fair reading of the decision of 12 May 2011 in this case does not support a finding that it was the Case Manager, and not the Proper Officer, who made the relevant decision. On no fewer than seven occasions in the letter is the decision framed in terms of the Proper Officer having considered features of the application, before coming to a conclusion expressed in these terms: "Therefore the Proper Officer is satisfied that the deterioration of the injury or the additional relevant information about the injury is such as to be capable of having a material effect on the outcome of the previous assessment as required by section 62(1A) of the Motor Accidents Compensation Act 1999." 129The onus of proof lies upon Allianz to prove facts which are said to give rise to an entitlement to relief. In circumstances where it is open to the Proper Officer to communicate with the parties to the dispute through a third person, in the form of the Case Manager employed by the Authority, I am simply not satisfied in this case, on the balance of probabilities, that a person other than the Proper Officer has made the decision under s.62 MAC Act, and provided reasons under Clause 14.8 of the Guidelines. 130Of course, as Hislop J observed in Falco at 182 [26], the best means of clearly communicating that the reasons for decision are those of the Proper Officer would be to have the Proper Officer sign the Statement of Reasons. However, properly construed, neither the MAC Act nor the Medical Assessment Guidelines renders mandatory communication by the Proper Officer of the decision and reasons in that way. 131I accept the submission that the surrounding correspondence, both before and after the event, sheds light upon the source of the decision and reasons contained in the letter of 12 May 2011. As the evidence referred to earlier in this judgment reveals (see, for example, [51], [55] and [76] above), Mr Cornforth was acting, in effect, as a go-between in communications between the Proper Officer and the solicitors for Allianz and Mr Mackenzie. So much is clear on the face of the documents. 132For completeness, I observe that no Jones v Dunkel inference should be drawn which assists Allianz. The clear and obvious inference to be drawn is that the s.62 decision in the letter of 12 May 2011 was that of the Proper Officer, who provided brief reasons for the decision in that letter, with the letter being signed by another officer of the Authority. 133I reject the first ground for review.

Submissions of Allianz 134Mr Robinson SC submitted that Allianz was denied procedural fairness in the making of the decision of 12 May 2011, in that it was refused an opportunity to respond to two sets of further and substantial written submissions from Mr Mackenzie concerning the application which were each filed and served late and out of time. 135Allianz relies upon the course of events on and after 14 April 2011 and, in particular, what occurred between 5 and 12 May 2011. 136It was submitted that the decision of 12 May 2011 was made without affording Allianz procedural fairness by way of lodgement of submissions in reply to Mr Mackenzie's further submissions of 18 April 2011 and 5 May 2011, about which Allianz had complained and objected. 137Mr Robinson SC submitted that any breach of the rules of procedural fairness is a very serious matter, and that there is no such thing as a trivial denial of procedural fairness: Re Refugee Review Tribunal; Ex parte Aala [2000] HCA 57; 204 CLR 82 at 91-92 [17], 109 [59]. He submitted that the decision was made in denial of procedural fairness and was void: Kioa v West [1985] HCA 81; 159 CLR 550 at 582, 584-585. Submissions of Mr Mackenzie 138Mr Romaniuk submits that there was no denial of procedural fairness in this case. He points to the email from the solicitors for Allianz at 12.03 pm on 12 May 2011 to Mr Cornforth seeking additional time to respond to Mr Mackenzie's submissions, with the decision and reasons of the Proper Officer being published at 12.10 pm that day, accompanied by an indication that the Proper Officer would accept any further documents arising from the email of the solicitors for Allianz, and seeking that those documents be forwarded to the Authority by 26 May 2011. 139Mr Romaniuk submitted that the solicitors for Allianz provided additional written submissions on 30 May 2011 which addressed the matters contained in the decision and reasons dated 12 May 2011, with the Proper Officer then communicating through Mr Cornforth and seeking any submission from Mr Mackenzie's solicitors by 1 June 2011. 140After receipt of a further submission from Mr Mackenzie's solicitors, the solicitors for the parties were notified on 1 June 2011 that the Proper Officer had viewed the submissions and confirmed her decision. 141Accordingly, Mr Romaniuk submitted that Allianz had asked the Proper Officer to revisit the decision, and that this in fact happened, with the decision being confirmed. 142Accordingly, Mr Romaniuk submitted that there was no evidential basis to support the contention that Allianz was denied the opportunity to respond to the submissions. 143In the result, Mr Romaniuk submitted that Allianz had an opportunity to make submissions by reference to the decision of 12 May 2011 itself, so that no complaint could be made legitimately concerning denial of procedural fairness. Decision Concerning Second Ground of Review 144The onus lies upon Allianz to prove facts grounding an entitlement to relief under this ground. 145It is necessary to bear in mind the practical operation of the procedural fairness rule. As Gleeson CJ observed in Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam [2003] HCA 6; 214 CLR 1 at 14 [37]: "Fairness is not an abstract concept. It is essentially practical. Whether one talks in terms of procedural fairness or natural justice, the concern of the law is to avoid practical injustice." 146The history of the applications made by Mr Mackenzie to the Authority, over an extended period of time, with respect to this motor vehicle accident appears from the chronological recital earlier in this judgment. 147Mr Mackenzie's application for further assessment made on 16 March 2011 gave rise to substantial correspondence. Documentary material was furnished by one side or the other, with objection being taken on behalf of Allianz to the provision of submissions in reply by Mr Mackenzie. At one point (see [51] above), an officer of the Authority found it necessary to remind the parties of the procedures under which the MAC Act was expected to operate. 148Clause 14.5 of the Medical Assessment Guidelines provides for the filing of an application and a reply (to the application). Express provision is not made for the applicant to reply to submissions made in response to the application. In one sense, this is curious. Ordinarily, in civil litigation, the party going first will make submissions, followed by the responding party, with provision usually being made for the party going first to reply. 149Ordinarily, the responding party will not lightly be granted an opportunity to respond to the reply. Of course, much will depend upon the circumstances of the case. 150Here, Mr Mackenzie replied (without consent or leave) to the submissions of Allianz. In due course, the Proper Officer permitted this to occur and took the submissions into account. 151The response of the solicitors for Allianz was to object to anything further being provided by Mr Mackenzie, without the making of a further submission, in the event that Allianz's objection was effectively overruled. 152Allianz had the submissions of 18 April 2011 and 5 May 2011 in its possession for some time. There was some response by Allianz in the letter of 9 May 2011 (see [50] above). This was not a case where Mr Mackenzie's submissions in reply were revealed to Allianz at the last minute, with no practical opportunity to consider a response. There was ample time for Allianz to seek to dispute those submissions, if what was said in them was truly contentious. 153Even when given an opportunity to make submissions in response to the Proper Officer, Allianz did not join issue with the matters raised in Mr Mackenzie's reply. 154Before this Court, there is still no assertion that Mr Mackenzie's reply is disputed, nor any identification or articulation of what Allianz would have submitted in that respect. These are important considerations in an assessment as to whether Allianz has proved that practical injustice has occurred. 155It may have been a preferable approach for the Proper Officer to defer making a decision for a few days, to allow Allianz to make an additional submission. However, that is not the test for determining whether a denial for procedural fairness has been established in this case. 156The practical content of the obligation to afford procedural fairness, and thus the issue of breach, may turn upon the circumstances of the particular case: Re Refugee Review Tribunal; Ex parte Aala at 91 [17]. 157The course adopted by the Proper Officer was to determine to communicate the decision and reasons, but to leave open to Allianz the opportunity to make submissions by 26 May 2011. 158The result of this was that the solicitors for Allianz were allowed a further 14 days to make submissions, in circumstances where the decision of 12 May 2011 could be revisited in light of those submissions. 159In the result, the solicitors for Allianz did not furnish the submissions until 30 May 2011, but they were received and considered, in any event, by the Proper Officer. They were not summarily rejected. Rather than advancing any submission in response to the substance of Mr Mackenzie's reply, Allianz chose to assert errors in the s.62 decision itself. Thereafter, Mr Mackenzie's solicitors were provided with an opportunity to make further submissions which they did. 160Having considered the submissions, the Proper Officer determined that the decision of 12 May 2011 ought be confirmed. 161Allianz has not demonstrated a denial of procedural fairness in these circumstances. Practical injustice has not been established. The tight timeframe applicable in the period leading up to the giving of the decision and reasons on 12 May 2011, was accommodated by an opportunity for Allianz to make submissions, with the benefit of the decision itself being available for that purpose. Allianz has not identified any substantial submission which would have been advanced in response to Mr Mackenzie's reply. 162The second ground for review ought be rejected.

Ground 3 - Alleged Error of Law in the Reasons for Decision of 12 May 2011

Submissions of Allianz 163Mr Robinson SC submitted that the decision of 12 May 2011 contains error of law so as to render the decision invalid. 164It was submitted that the decision maker had not applied the proper legal test required under s.62 MAC Act. Reference was made to the statement in the course of the decision (emphasis added): "If this issue was proved to be accurate there could be a material difference to the previous MAS Assessment(s). This could take the claimant over the 10% WPI threshold. It is noted that the Insurer has disputed this aspect of the further application." 165Mr Robinson SC submitted that the words underlined in this paragraph constituted a wrong test, so that the decision maker had misconstrued the relevant power and fallen into error. 166Particular reference was made to the following passage in the decision: "The Proper Officer remarks that even though some aspects of the documents at hand may be interpreted to be open to debate and discussion it is not the position of the Proper Officer to ultimately say what is correct and what is not. This is especially so when there are two distinct and reasonable arguments before the Authority. In saying this the Proper Officer is ultimately a 'Gate Keeper' whose role is to assist in the resolution of disputes and not pass judgment on issues that fall outside of her role. Nevertheless the Proper Officer does recognise the value of the argument but Moray & Agnew have forwarded but she cannot ultimately say that this is correct or not. But what does become apparent while reading the documents at hand is the issue of causation." 167It is submitted for Allianz that in these passages, the decision maker has, in effect, decided not to make a determination on the matters that were the subject of the application. It was submitted that the statement that the decision maker was not going to "pass judgment" on the issues at hand involved a misconstruction of s.62, in stating a different test and thus falling into error. 168Reference was made as well to the following part of the decision: "As a result, based on the evidence before her, which takes into account the core issue of causation, the Proper Officer believes that there may be a possibility that the claimant is over the 10% WPI threshold." 169Mr Robinson SC submitted that this approach involved error and the application of a test which was not the legal test contained in s.62 MAC Act. 170Allianz submits, as well, that the reasons provided in the decision do not demonstrate that the decision maker had complied with ss.62(1)(a) and 62(1A) MAC Act. In crucial respects, it was submitted that the reasons contained only conclusions and not reasons, even brief reasons. 171Mr Robinson SC submitted that further error was demonstrated by application of the wrong legal test, in citing a passage from the decision of McCallum J in Glover-Chambers v Motor Accidents Authority of NSW [2010] NSWSC 17; 55 MVR 44 at [26]. 172It was submitted that s.62 MAC Act had been amended, with effect from 1 October 2008, so that the decision in Glover-Chambers v Motor Accidents Authority of NSW did not apply to the provision to be applied in this case. 173It was submitted for Allianz that the reasons contained in the letter of 12 May 2011 did not satisfy the requirement to provide even brief written reasons, in accordance with Clause 14.8 of the Medical Assessment Guidelines. Submissions of Mr Mackenzie 174Mr Romaniuk submitted that the decision maker had not fallen into error of law in making the decision of 12 May 2011. 175Counsel submitted that the letter of 12 May 2011 contained brief written reasons as required by Clause 14.8 of the Guidelines. He submits, as well, that it is necessary to approach the reasons of the decision maker in a practical way, in accordance with relevant principles for judicial review of an administrative decision. 176In response to the textual challenge to the reasons, Mr Romaniuk submits that the use of the words relied upon, when read in context, does not derogate from the decision-maker's compliance with the obligation to state reasons, having applied the correct legal test. Decision Concerning Third Ground of Review 177The function being exercised by the Court on this claim for prerogative relief does not, of course, involve the Court substituting its own opinion for that of the original decision maker: Minister for Aboriginal Affairs v Peko-Wallsend Limited [1986] HCA 40; 162 CLR 24 at 40-41. The duty and jurisdiction of the Court to review administrative action does not go beyond a declaration and enforcing of the law which determines the limits and governs the exercise of the relevant power: Attorney General for New South Wales v Quin [1990] HCA 21; 170 CLR 1 at 35-36. 178In Rodger v De Gelder, Macfarlan JA (McColl JA agreeing) described, at 618 [110], how reasons for a s.62 decision should be read: "The letter must be read as a whole, bearing in mind the nature of the application with which it was dealing and the legislative context in which it was written. Moreover it must be construed in a commonsense fashion without over-zealous attention to the manner in which it was expressed (see Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259 at 272)." 179The reasons under challenge must be read as a whole and must be fairly read: Cross v McHugh [1974] 1 NSWLR 500 at 503; Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; 185 CLR 259 at 291. 180The decision maker in this case understood the gate-keeper role being exercised for the purpose of s.62 MAC Act. As the reasons contained in the letter of 12 May 2011 make clear, there was a dispute between the parties as to whether additional relevant information had been furnished in accordance with s.62(1)(a) MAC Act. The Proper Officer set out concisely a statement of the joinder of issue on this aspect. 181The test to be applied by the Proper Officer under s.62(1A) MAC Act was whether "the deterioration or additional information is such as to be capable of having a material effect on the outcome of the previous assessment". As is to be expected given the gate-keeper function exercised under the section, this assessment involves a type of screening role. The test is one of having a capacity to have a material effect on the outcome, not whether it has, in fact, a material effect on the outcome of the previous assessment. 182It is true that the Proper Officer has used some words of qualification (see [164] above). I do not consider that this constitutes the application of a wrong legal test. Reading the reasons fairly and as a whole, they serve to explain how the Proper Officer has come to the decision that the additional information is such as to be capable of having a material effect on the outcome of the previous assessment. 183To state that areas for debate remain to be considered and determined by the medical assessor, if a further medical assessment is ordered, is not to apply a form of inadmissible test. It is an explanation of the approach as to why the further assessment ought be allowed to proceed, conscious of the different roles of the Proper Officer (as gate keeper) and the medical assessor (as the person to perform the further medical assessment and to certify as to its outcome, with reasons to explain the result). 184I do not consider that the reference to Glover-Chambers v Motor Accidents Authority of New South Wales constitutes legal error in this case. The paragraph in question must be read in the context of the reasons as a whole, which refer expressly to the requirements of s.62(1A) MAC Act. 185In my view, the position is distinguishable from that found to be relevant legal error by Hislop J in Falco at 183 [39]. His Honour there accepted a submission that the wrong legal test "may" have been applied. However, as his Honour made clear at 183 [39], the reasons stated expressly that it was the Case Manager, rather than the Proper Officer, who was relying on this paragraph, thereby giving rise to an error of law in itself. 186I am not persuaded that the reference to Glover-Chambers v Motor Accidents Authority of New South Wales in the present reasons constitutes legal error. 187I accept the submission for Mr Mackenzie that the reasons of the Proper Officer identified the following matters: (a) that the material submitted related to causation; (b) that the material submitted by Mr Mackenzie from four different doctors suggested WPI assessments ranging between 14% to 28%; (c) that the different positions of Mr Mackenzie and Allianz concerned the impact and effect of materials submitted by each other, but with the Proper Officer recognising that the gate-keeper role did not extend to a determination of the effect of the material in the medical assessment; (d) that the materials included medico-legal opinion as to causation, lay evidence dealing with causation and documents dealing with ongoing treatment, and that this material was additional relevant material about the injury or its deterioration. 188Allianz has not demonstrated that the reasons fail to constitute reasons in law, as required by Clause 14.8 of the Medical Assessment Guidelines which requires "brief written reasons for the decision". The reasons were sufficient in law for the screening or gate-keeping decision made by the Proper Officer under s.62 MAC Act. Although the decision affected the rights of Allianz (Rodger v De Gelder at 610 [70]), it did so only by opening the door to further medical assessment, with the assessment itself being the operative decision which may (or may not) expose Allianz to damages for non-economic loss, depending upon the outcome of the assessment itself. The Proper Officer's reasons made sufficiently clear why the gate was being opened in this case. 189Allianz has not demonstrated legal error on the face of the record contained in the reasons of 12 May 2011, or jurisdictional error by reference to those reasons.

190Allianz has failed to demonstrate an entitlement to relief as sought in the Summons. The stay granted by Kirby J on 6 June 2011 ought be dissolved. 191It seems appropriate that the ordinary rule apply, and that costs should follow the event. Allianz should pay the costs of Mr Mackenzie. There should be no order as to the costs of the Authority. 192I make the following orders: (a) the stay granted by Kirby J on 6 June 2011 is dissolved; (b) Summons dismissed; (c) Allianz is to pay Mr Mackenzie's costs of the proceedings; (d) no order as to costs of the Authority; (e) should any party seek a different costs order, written notice is to be given to my Associate by 4.00 pm on 5 December 2012 of the terms of the order sought, and I will give directions for the determination of any remaining issue.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 03 December 2012