(4) Inadequacy of reasons
47It is not unfair to say that the applicant vacillated as to the extent to which it sought to challenge the reasons provided by the assessor for his certificate. There is no doubt that, in the summons commencing proceedings in the Common Law Division, the applicant complained of the inadequacy of the reasons of the assessor in a number of respects. The primary judge dealt with the obligation to state reasons at [10]-[13].
48In the draft notice of appeal in this Court the grounds in respect of the award for past domestic assistance included a complaint in relation to the finding of the primary judge that the assessor's reasons were sufficient: ground 7. The additional ground of challenge does not warrant a grant of leave to appeal in this respect, given the conclusion noted above as to why leave should be refused in respect of the substantive challenge. Nor did the grounds of appeal raise a complaint in respect of inadequate reasons in relation to the third matter, dealing with the provision of future domestic assistance on a commercial basis.
49By way of contrast, the written submissions for the applicant identified as an issue in the proposed appeal that "no lawful reasons were provided" by the assessor in respect of any of the matters raised in the draft notice of appeal. That gave rise to a notice of contention on behalf of the claimant asserting that a failure to give adequate reasons would not invalidate the assessment. However, in seeking leave to rely upon the notice (which was not served in compliance with the Uniform Civil Procedure Rules 2005 (NSW), r 51.40) counsel said that the matter was relied upon by way of a formal submission, on the understanding that such a ground could not succeed on the current state of authority in this Court.
50In respect of future economic loss, the reasoning was said to be inadequate because it was impossible to know why the assessor chose an amount of $200,000, rather than $50,000, $100,000 or $300,000. This challenge having been raised, it should be addressed and determined.
51The inquiry must commence with identification of the obligation on the assessor to provide reasons. The obligation may be found in two provisions of the Compensation Act . First, the Act says that the assessor "is to attach a brief statement to the certificate, setting out the assessor's reasons for the assessment": s 94(5). Further, the Compensation Act provides that assessments are "subject to relevant provisions of MAA Claims Assessment Guidelines relating to those assessments": s 106(1). Those Guidelines, issued pursuant to s 69(1), must be "for or with respect to procedures for the assessment of claims under Part 4.4 and associated matters". The Court was provided with a copy of the Guidelines which, it may be assumed, were in force at the time of the assessment. Relevantly, cl 18.4 provides:
"A certificate under section 94 or 96 is to have attached to it a statement of the reasons for the assessment. The statement of reasons is to set out as briefly as the circumstances of the assessment permit:
18.4.1 the findings on material questions of fact;
18.4.2 the assessor's understanding of the applicable law if relevant;
18.4.3 the reasoning processes that led the assessor to the conclusions made; and
18.4.4 in the case of an assessment certificate pursuant to section 94, the assessor must specify an amount of damages and the manner of determining that amount."
52There is some degree of ambiguity in this guideline. The last sub-clause appears to apply to the certificate and not to the reasons. Further, it is unclear as to whether the requirements of the first three sub-clauses are additional obligations, potentially going beyond those imposed by s 94(5). If that were so, there might be an issue as to their validity. The possibility that such an inference should be drawn may be derived from cl 18.6 which states:
"The Assessor may with the consent of both parties provide reasons orally at the Assessment Conference provided that, in accordance with section 94(4) and (5), a certificate is issued with a brief written statement summarising those reasons."
53The issue need not be pursued because the respondent accepted that, subject to the formal reservation noted above, the assessor was obliged to give reasons which accorded with cl 18.4 of the Guidelines. In Insurance Australia Ltd trading as NRMA Insurance v Helou [2008] NSWCA 240; 51 MVR 414, the Court made some comments on the scope of the obligation of an assessor to give reasons, but its attention may not have been drawn to the requirements of cl 18.4 of the Guidelines: see [60]-[62]. Although Helou did not state that the obligation was a lesser one than that imposed on courts, that conclusion should be accepted: cf Insurance Australia Ltd (t/as NRMA Insurance) v Hutton-Potts [2010] NSWSC 1446; 57 MVR 194 at [32] (Schmidt J); Allianz Australia Insurance Ltd v Sprod [2011] NSWSC 1157 at [20] (Hoeben J). It may also be accepted that the obligation to state the assumptions relied upon for the purposes of s 126 creates a necessary element of any statement of reasons: Hutton-Potts at [33]. The limitations of the obligation to give reasons must be kept firmly in mind by a judicial officer accustomed to a higher obligation.
54In dealing with the obligation to give reasons imposed on the Refugee Review Tribunal by s 430 of the Migration Act 1958 (Cth) (which, in so far as it required the Tribunal to refer to the evidence or other material on which findings of fact were based, went further than the regime for assessors), Gleeson CJ stated in Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; 206 CLR 323:
[5] When the Tribunal prepares a written statement of its reasons for decision in a given case, that statement will have been prepared by the Tribunal, and will be understood by a reader, including a judge reviewing the Tribunal's decision, in the light of the statutory requirements contained in s 430. The Tribunal is required, in setting out its reasons for decision, to set out 'the findings on any material questions of fact'. If it does not set out a finding on some question of fact, that will indicate that it made no finding on that matter; and that, in turn, may indicate that the Tribunal did not consider the matter to be material. ...
...
[9] The major difficulty for the respondents, however, lies in the language of s 430. There is nothing in that language which imposes a requirement to make a finding on every question of fact which is regarded by the Federal Court, on judicial review of the Tribunal's decision, as being material."
55A similar point was made by McHugh, Gummow and Hayne JJ in Yusuf at [73]-[75]; see also Waterways Authority v Fitzgibbon [2005] HCA 57; 79 ALJR 1816 at [129] (Hayne J).
56The issue in the present case was whether, the assessor having concluded (appropriately in the circumstances) that an amount should be awarded by way of a "buffer", it was necessary for him to provide some further explanation as to how he reached the precise sum adopted in the award. No complaint was made that the sum was outside an appropriate range, so as to demonstrate error of law for that reason. The question was thus whether, the sum being within the appropriate range, the assessor was required to explain why he selected one figure rather than another. Nor was there any attempt to identify the appropriate range. Before the assessor, the applicant asserted that a sum of $20,000 would have been appropriate although, in the circumstances, such a figure might have been seen as dismissive. On the other hand, the claimant sought an amount of $600,000. Perhaps, if the range had been narrower, the applicant would not have raised the present issue: although the matter was not addressed in these terms, it may perhaps be assumed in favour of the respondent that the available range was itself broad.
57Nevertheless, it does not follow that some explanation is required in adopting a particular point in the range. On a criminal appeal, a complaint that a sentencing judge has not explained the precise basis upon which a specific sentence has been selected is unavailable. The appropriate ground is manifest inadequacy or manifest excess. As explained by Gleeson CJ and Hayne J in Dinsdale v The Queen [2000] HCA 54; 202 CLR 321 at [9], manifest inadequacy "was a ground which did not require, or even admit of, expansive elaboration of a process of reasoning which leads to its acceptance or rejection". There is a passage to similar effect, in relation to judicial review of an administrative decision, in Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Palme [2003] HCA 56; 216 CLR 212 at [40]. Palme involved a determination by the Minister that he "reasonably suspected the prosecutor did not pass the character test and that the prosecutor had not satisfied him that he passed that test". Three members of the High Court, referring to the complaint that the material supplied to the prosecutor did not set out the reasons for the decision, noted:
"There are some issues for decision which are of such a nature that, as Kitto J put it [in In Re Wolanski's Registered Design (1953) 88 CLR 278 at 281], with reference to the statements by Lord Herschell and Eve J:
'[I]t is not to be expected that [the judge] will be able, at any rate satisfactorily to the litigants or to one of the litigants, to indicate in detail the grounds which have led him to the conclusion.'"
58The inherent imprecision in assessing the value of future economic loss suffered by relatives in a fatal accident case was discussed in De Sales v Ingrilli [2002] HCA 52; 212 CLR 338, especially at [68] and [79] by Gaudron, Gummow and HayneJJ. In Saville v Health Care Complaints Commission [2006] NSWCA 298 I suggested at [52] (Handley and Tobias JJA agreeing), that "matters of evaluation and judgment are not readily explained in rational terms" and that "[v]arious imprecise and amorphous, but relevant, considerations may need to be weighed in the balance in determining where, across a range of possibilities, the appropriate result should be found". After reference to the passage from Palme set out above, the reasoning continued:
"The purpose underlying the obligation to give reasons is in part the discipline of rationality, being the antithesis of arbitrariness, which follows from the exercise of justifying a conclusion, together with the transparency of decision-making, which permits the parties and the public to understand the result reached. However, this purpose must be given practical effect in particular circumstances."
59While is it sometimes, but not always, true that lengthy reasons will give greater assistance and understanding than brief reasons, the obligation on the assessor was not to give lengthy reasons. The explanation provided was sufficient to warrant the award of a significant sum of money for future economic loss. The obligation imposed by statute did not require him to explain why some particular amount was chosen as opposed to another. Even in circumstances where this Court has intervened on an appeal by way of rehearing, the amount chosen has been identified with little explanation as to how the figure was selected: see, eg, Werner v Krahe [2002] NSWCA 168 at [29] (Foster AJA, Hodgson JA agreeing); Sretenovic v Reed [2009] NSWCA 280 at [86] (McColl JA, Beazley JA agreeing); see also, in rejecting a challenge, Leichhardt Municipal Council at [34] and, in assessing a buffer, Ilic v O'Connor [2004] 2 DCLR (NSW) 249 at 264-265 (Patten DCJ).
60The applicant has not demonstrated error of law in this respect.
61With respect to the separate challenge based on inadequacy of reasons in awarding an amount for future domestic assistance, at commercial rates, a somewhat different analysis applies. Reasons are designed to dispose of issues before the Tribunal. Adapting the analysis of Gleeson CJ in respect of fact-finding in Yusuf , if the reasons do not refer to a particular matter the inference may readily be drawn, absent evidence to the contrary, that the issue had not been raised for determination. In Campbelltown City Council v Vegan [2006] NSWCA 284; 67 NSWLR 372 at [130], I suggested that because the record included the reasons of the tribunal, inadequacy will inevitably be an error of law on the face of the record. In other words, if the reasons have failed to deal with some matter which should have been dealt with, a different kind of error may be revealed. Just as the assessor was not required to give reasons for findings he did not make, so he was not required to give reasons for issues he did not determine.
62As explained above, the range of challenges on a judicial review application is limited to errors of law on the face of the record and jurisdictional error. In the case of the latter, the kind of error is more limited, but the scope of inquiry is broader. In principle, in order to go beyond the face of the record, it would be necessary to identify a jurisdictional error. That was not an exercise which the applicant undertook. It is not a task which this Court should undertake in that circumstance. In Hutton-Potts , at [41], Schmidt J thought that a failure to comply with s 126, at least in some respects, might result in jurisdictional error: in support of that proposition she referred to the judgment of Hidden J in Allianz Australia Insurance Ltd v Ward [2010] NSWSC 720 at [53]. A reading of that passage does not indicate clearly that Hidden J was identifying a jurisdictional error, or, if he had done so, which error he had in mind. Such conclusions are contestable: if correct they turn on questions of statutory construction: see Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; 194 CLR 355 at [93]. As the respondent correctly submitted, that requires attention to provisions such as s 123(1) and (3) of the Compensation Act .
63There is nothing on the face of the record which demonstrated that an issue was raised requiring the assessor to make a finding in respect of the likelihood of assistance being provided on a commercial basis. (It is common ground that he did not make such a finding.) For that to be required, he would have had to identify a claim in those terms (which he did) and a challenge to that aspect of the claim (to which he made no reference). Therefore, there cannot be a complaint of failure to give reasons; the only theoretically available ground was that he failed to deal with an issue which had been presented for resolution by the parties.
64Despite these difficulties, the applicant did seek to suggest that there was such an issue which had not been determined. The Court was taken to the written submissions for the applicant before the assessor. They demonstrate the contrary: the objection taken, and the only objection taken, was that there was no material supporting any need for future domestic assistance. Nothing was said in those submissions as to the basis on which it should be assessed if a need were accepted.