Consideration
52As has already been stated, the summons seeks judicial review of the Assessor's decision refusing to find that the assessment is "not suitable for assessment" before CARS. At all times, the Court must bear in mind the distinction between a merit review and judicial review.
53As the High Court said in Attorney General (NSW) v Quin [1990] HCA 21; (1990) 170 CLR 1 at 35-36 (per Brennan J) there is a fundamental distinction between correcting administrative injustice or error by a review of the merits of administrative action and adjudicating the extent of power and legality of the exercise of administrative functions:
"The duty and jurisdiction of the courts to review administrative action do not go beyond the declaration and enforcing of the law which determines the limits and governs the exercise of the repository's power. If, in so doing, the court avoids administrative injustice or error, so be it; but the court has no jurisdiction simply to cure administrative injustice or error. The merits of administrative action, to the extent that they can be distinguished from legality, are for the repository of the relevant power and, subject to legal control, for the repository alone.
The consequence is that the scope of judicial review must be defined not in terms of the protection of individual interests but in terms of the extent of power and the legality of its exercise. In Australia, the modern development and expansion of the law of judicial review of administrative action have been achieved by an increasingly sophisticated exposition of implied limitations on the extent or the exercise of statutory power, but those limitations are not calculated to secure judicial scrutiny of the merits of a particular case.
There is one limitation, 'Wednesbury unreasonableness' (the nomenclature comes from Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223), which may appear to open the gate to judicial review of the merits of a decision or action taken within power. Properly applied, Wednesbury unreasonableness leaves the merits of a decision or action unaffected unless the decision or action is such as to amount to an abuse of power: Nottinghamshire County Council v Secretary of State for the Environment [1986] A.C. 240 at 249. Acting on the implied intention of the legislature that a power be exercised reasonably, the court holds invalid a purported exercise of the power which is so unreasonable that no reasonable repository of the power could have taken the impugned decision or action. The limitation is extremely confined."
54In Zurich Australian Insurance Ltd v MAA and Anor [2006] NSWSC 845 Hoeben J (as his Honour then was) referred to the task of an assessor in determining exemptions from assessment and said:
"[53] Against that background the scheme of the Act in relation to exemptions from assessment seems to be tolerably clear. Most claims will be assessed in accordance with Part 4.4 of the Act. There will be some claims which are exempt from assessment, but they will be in the minority and be the exception. Lest such exemptions be granted too freely (and thereby defeat the objects and purpose of the Act) strict requirements are imposed before a claim is exempt from assessment. In the case of an exercise of a discretion by an assessor, that requires the approval of the PCA before a certificate of exemption can issue. It follows that if a party to a claim wished to challenge a certificate of exemption, or a determination that a matter was not suitable for assessment under Part 4.4, it could do so for failure to follow the procedure set in place for the granting of such exemptions from assessment. What is less clear (as has arisen here) is what can be done by a party which is aggrieved because either a certificate of exemption from assessment has not been granted or a determination as to non suitability has not been made.
[54] The scope for intervention by this Court with regard to administrative decision making is limited. For Zurich to be successful in establishing jurisdictional error it has to bring itself within the principles in Craig v South Australia (1995) 184 CLR 163 at 179:
'If ... 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 a 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.'"
55This attitude is, with respect to Hoeben JA, adopted. It had been earlier adopted by Sully J in Allianz Australia Insurance Limited v Motor Accidents Authority of NSW [2006] NSWSC 1096 and by me in Graham Kelly v Motor Accidents Authority of New South Wales [2006] NSWSC 1444.
56I accept the opinion expressed by the Assessor that often issues associated with inconsistencies in periods of employment are resolved in a CARS assessment as are inconsistencies in documents and statements. Often they are resolved in the proceedings by examination by the insurance company that is permitted by the assessor. This however is slightly different.
57The allegation by Allianz is an allegation of fraud in relation to the reliance upon a document that is said to be a forgery (if not two such documents). The Assessor has no power to subpoena or require the attendance of any person. The Assessor has no power to require an answer to any question. The most that the Assessor is able to do, in dealing with an issue of that kind, is take into account a failure to answer a question in determining an assessment.
58There is a significant difference between inconsistent evidence of earnings and evidence of potential forgery. The only conclusive means of determining the forgery, and its source, is by compelling production, compelling answers under oath, and cross-examination of Mr Tarabay and third parties. That course is impossible in an assessment.
59Section 92(1)(a) of the Act, read with Guideline Clause 8.11.6, requires an exemption to issue when there is an allegation of fraud relating to the occurrence or circumstances of the accident. Here, the allegation of fraud relates to documents supporting pre-accident earnings. These are extremely serious allegations of criminal conduct under the general law and the Act, which inform the exercise of the power under s 92(1)(b) of the Act.
60Nevertheless, for the Court to involve itself in a determination as to whether, on the merits, an assessor is capable of dealing with those allegations, is not, on its face, judicial review. There is no suggestion or allegation of Wednesbury unreasonableness. There is no allegation that the failure to exempt is unreasonable in the sense described by Brennan J in Quin.
61It would seem to me, on the material before the Court, that it would be difficult to come to the conclusion reached by the Assessor. Nevertheless, the Assessor has come to that conclusion, at least implicitly, and the Court would be involving itself in dealing with the merits of the claim were it to review that exercise of discretion.
62The foregoing view does not conclude the matter against Allianz. There is a far more fundamental issue raised by the plaintiff. The "issue" that was before the Assessor was whether an exemption should be granted. The question that has been answered is whether Allianz has proved fraud. That is not the question that was before the Assessor.
63As recited above, the Assessor has come to a conclusion (without evidence directly on the issue or even indirectly on the issue) as to the veracity of the explanation of Mr Tarabay, relayed by his solicitor, that Mr Tarabay does not know how the second PAYG payment summary has come into existence. The Assessor expressly states that she accepts that explanation. The Assessor accepts that "in the absence of any evidence from the Insurer to the contrary".
64Yet, it is not for Allianz to explain how there are two PAYG records. Allianz has disclosed far more than would be necessary in order to show a prima facie need to explain inconsistent documents. Those documents have not been explained. Nevertheless, in the absence of proof from Allianz, the Assessor has accepted the explanation relayed to her by the solicitor for Mr Tarabay.
65Even more fundamentally, the Assessor has come to a conclusion that she was "not satisfied that the Claimant ... has made a statement knowing that it is false". That was not an issue before the Assessor. Far more fundamentally, it is not an issue which could be decided before a full hearing on the question of the "fraud".
66The only proceeding heard by the Assessor was an interlocutory proceeding in which the task of Allianz was not to prove the fraud alleged but to satisfy the Assessor, on the basis of an allegation, reasonably put, of fraud so that the matter was not one that should be heard in a CARS assessment.
67The Assessor asked herself the wrong question and answered it. In doing so she has reached a concluded view as to the substance of the matter alleged, without having heard the parties in full on the issue. In so doing, the Assessor has issued a decision vitiated by jurisdictional error and error of law on the face of the record: Craig v State of South Australia [1995] HCA 58; (1995) 184 CLR 163 at 179; Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323 at [82].
68The only other matter that requires attention is the submission that the Assessor was biased in favour of the claimant. The submission that the Assessor gave Mr Tarabay "more than the benefit of the doubt" is not inaccurate. But in order for bias to be shown from the conclusion of a court or tribunal, more must be shown. I will assume that the allegation of bias is a claim of reasonable apprehension of bias, rather than actual bias, and in so doing take a more generous view of that which is put against the Assessor.
69As has recently been reiterated, a claim of apprehended bias will "strike at the validity and acceptability of the trial and its outcome", if it were successful: Concrete Pty Ltd v Parramatta Design & Developments Pty Ltd [2006] HCA 55; (2006) 229 CLR 577 at [117] (per Kirby and Crennan JJ), cited in Rouvinetis v Knoll [2013] NSWCA 24 at [11] (per Basten JA).
70The test for apprehended bias is well known and has been expressed many times. The test is objective. The general principle is that a judge should not hear a case if, in all the circumstances, the parties or the public might entertain a reasonable apprehension that the judge might not bring an impartial and unprejudiced mind to the resolution of the questions involved in it: Livesey v New South Wales Bar Association [1983] HCA 17; (1983) 151 CLR 288 at 293-294; R v Watson; Ex parte Armstrong [1976] HCA 39; (1976) 136 CLR 248 at 258-263; Rouvinetis at [24] (and the cases cited therein).
71The claim that a judge is biased or that there is an apprehension of bias admits of the possibility of human frailty and requires the identification of that which it is said might lead a judge to decide a case other than on its legal and factual merits: Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337 at 344. There must be, as the joint judgment in Ebner explained, a logical connection between the matter and the feared deviation from the course of deciding the case on the merits: Ebner at 345, [8] (per Gleeson CJ, McHugh, Gummow and Hayne JJ).
72In essence, the submission of Allianz on this issue is that the findings of the Assessor are so manifestly in favour of Mr Tarabay, without the necessary support for those findings, that there must have been bias in order to have arrived at the conclusions. It is insufficient, in order to show bias, that a court or tribunal has decided a matter unfavourably (or even unreasonably) on the basis of the material before that court or tribunal. However wrong a conclusion may be, the conclusion, without more, will not disclose the necessary elements for an application for bias to succeed. I reject this ground of review.
73The ground of review does, nevertheless, give rise to the appropriate nature of orders that should be made. Given the analysis of the decision above, I have come to the conclusion that the Assessor has reached a concluded view on matters that are against the interests of Allianz, in circumstances where the matter has not been fully argued. In those circumstances, and given that orders are otherwise to be made the effect of which would be to remit the matter to the Authority, an order shall also be included that it be listed before a different Assessor.
74As stated above, the Assessor has asked herself the wrong question and taken into account irrelevant material in determining whether fraud was proved instead of whether, given the nature of the allegations and their reasonableness, the matter ought be granted a certificate of exemption. The wrong issue was addressed and irrelevant considerations were considered in addressing it.
75The Court makes the following orders:
(1)An order in the nature of certiorari quashing the decision of the Motor Accidents Authority of New South Wales made on 13 June 2012 purportedly pursuant to s 92(1)(b) of the Motor Accidents Compensation Act 1999 to refuse to issue a certificate of exemption in relation to the claim by Joey Tarabay exempting the claim from assessment under Part 4.4 of the aforesaid Act;
(2)An order in the nature of prohibition preventing the Motor Accidents Authority of New South Wales and Joey Tarabay, their officers, servants or agents from acting on or taking any further step in reliance on the decision of 13 June 2012;
(3)An order in the nature of mandamus requiring the Motor Accidents Authority of New South Wales to deal with the exemption application of Allianz Australia Insurance Limited in relation to the motor accidents claim of Joey Tarabay in accordance with law;
(4)An order in the nature of prohibition preventing the second defendant from further dealing with the claim by Joey Tarabay for compensation under the Motor Accidents Compensation Act 1999;
(5)The first defendant shall pay the plaintiff's costs of and incidental to these proceedings, as agreed or assessed;
(6)Pursuant to s 6 of the Suitors' Fund Act 1951, the first defendant is granted an indemnity certificate in relation to the costs with respect to these proceedings.