Boga v AAI Limited trading as AAMI

G Parker SC with J de Greenlaw (Plaintiff) J Catsanos SC (First Defendant)

Solicitors: Gerard Malouf & Partners (Plaintiff) Moray & Agnew (First Defendant) Crown Solicitor's Office (Second Defendant) File Number(s): 2021/280158 Publication restriction: Nil

Judgment

1. By an amended summons filed on 9 December 2021, Suleyman Boga ("the plaintiff") seeks orders pursuant to s 69 of the Supreme Court Act 1970 (NSW) in relation to the decision made by the President of the Personal Injury Commission of New South Wales ("the President") dated 5 July 2021 acceding to the first defendant's request pursuant to s 62(1) of the Motor Accidents Compensation Act 1999 (NSW) ("MAC Act") to refer the plaintiff for further medical assessment. The orders sought are as follows: 1. An order in the nature of certiorari setting aside or quashing the decision, or alternatively a declaration the decision is invalid; 2. An order in the nature of prohibition or alternatively an injunction preventing the defendants or any of their officers, servants or agents from acting on or taking any further step in reliance on the decision; and 3. An order that the first defendant pay the plaintiff's costs.

The parties

1. The litigation arises out of a motor vehicle accident. The first defendant is the licensed compulsory third party insurer of the driver of the vehicle that struck the plaintiff's vehicle. The actual decision with respect to which the review is sought was made by a delegate of the President. The President was named as the second defendant to the amended summons and filed a submitting appearance.
2. The delegate was not joined as a party to the amended summons, although she had been joined in the original summons, and had, in response, filed a submitting appearance. Senior counsel for the first defendant responsibly drew attention to the fact that the delegate was not a party to the amended summons and to r 59.3(4) of the Uniform Civil Procedure Rules 2005 (NSW), which provides: 59.3 Commencement and parties … (4) The body or person responsible for a decision to be reviewed must be joined as a defendant, but not as the first defendant unless there is no other defendant.
3. As noted above, the second defendant to the summons is the President. Section 49(6) of the Interpretation Act 1987 (NSW) provides: 49 Delegation of functions … (6) A delegated function that is duly exercised by a delegate shall be taken to have been exercised by the delegator.
4. On this basis, I am satisfied that the President is the "person responsible" for the decision and is properly joined as a party and that it is neither necessary nor appropriate that the delegate be joined.

The application

1. This application for judicial review arises out of a dispute as to the degree of permanent impairment sustained by the plaintiff in a motor vehicle accident on 13 July 2016.
2. The plaintiff seeks judicial review on the following grounds (as amended): "1. The President misdirected himself with respect to the requirements of s.62(1A). Particulars The President relied on the assessment of the surveillance material of Drs Harvey and Menogue when she [sic] was required to determine whether that material was capable of having a material effect on the outcome of the previous assessment of 9 September 2019. 2. The President erred in her his conclusion that the reports of Drs Harvey and Menogue were: (i) additional relevant information; (ii) capable of having a material effect on the previous assessment. 3. The President erred in her his conclusion that the information in the reports of Drs Harvey and Minogue [sic] was additional relevant information about "the injury". 4. The President failed to properly consider the surveillance material by viewing it for herself [sic]. 5. The proper officer having formed the opinion or state of satisfaction required by s.62(1A) failed to take into account and exercise the residual discretion given by s.62(1) of the MAC Act namely to determine whether to refer the matter for further assessment. 6. Further in so far as the Proper Officer exercised the residual discretion, she [sic] failed to give reasons for the exercise of the discretion adverse to the Plaintiff. 7. The proper officer failed to take into account and consider the plaintiff's express submission that the matter should not be referred for further assessment as to do so would [be] contrary to the objects of the Act and the MAS."

The legislative scheme

1. A helpful overview of the legislative scheme was provided by Beazley JA in Rodger v De Gelder (2011) 80 NSWLR 594; [2011] NSWCA 97 at [7]-[15].
2. In short, the MAC Act establishes a scheme of compulsory third party insurance and the payment of compensation for injuries sustained as a consequence of motor accidents occurring on or after 5 October 1999 and before the commencement of the Motor Accident Injuries Act 2017 (NSW) on 1 December 2017.
3. While some functions and powers under the MAC Act were transferred to the Personal Injury Commission Act 2020 (NSW) with the establishment of the Personal Injury Commission on 1 March 2021, cl 14C(3)(b) of Sch 1 of that Act provides that "the provisions of any Act, statutory rule or other law that would have applied to or in respect of [court proceedings which were commenced before 1 March 2021 and have not been finally determined before that day] had this Act not been enacted continue to apply". Therefore, the MAC Act continues to apply to this present dispute.
4. Section 44(1) provided, prior to 1 March 2021 as follows: 44 Medical Guidelines of Authority (1) The Authority may issue guidelines (Motor Accidents Medical Guidelines) with respect to the following - (a) the appropriate treatment of injured persons, (b) the appropriate procedures with respect to the provision of rehabilitation services or attendant care services for injured persons (including the circumstances in which rehabilitation services or attendant care services are required to be provided), (c) the assessment of the degree of permanent impairment of an injured person as a result of an injury caused by a motor accident, (d) the procedures for the referral of disputes for assessment or review of assessments, and the procedure for assessment and review of assessments, under Part 3.4.
5. The Motor Accidents Medical Assessment Guidelines ("Medical Assessment Guidelines") were made pursuant to s 44(1) and apply to medical assessments under Part 3.4 of the MAC Act by virtue of s 65 (pausing to note that, while s 44(1)(d) and s 65 were repealed by Sch 6 of the Personal Injury Commission Act on 1 March 2021, they apply to this current application for the reasons discussed above).
6. Where medical disputes are referred to the State Insurance Regulatory Authority, the Authority is to arrange for the dispute to be referred to one or more medical assessors: MAC Act, s 60. The medical assessor to whom a medical dispute is referred is to give a certificate as to the matters referred for assessment: MAC Act, s 61.

The history of the present matter

1. On 13 July 2016, the plaintiff was injured in a motor vehicle accident in Punchbowl. While he was sitting in a stationary vehicle, it was struck from behind by another vehicle. His vehicle subsequently struck the vehicle in front. The first defendant has admitted liability.
2. As part of his claim, the plaintiff seeks damages for non-economic loss, to which he is not entitled unless the degree of permanent impairment is greater than 10%: MAC Act, s 131. There is a dispute between the parties as to whether the degree of permanent impairment of the plaintiff, as a result of the injury caused by the accident, is greater than 10%.
3. On 1 May 2018, Professor Michael Fearnside issued a certificate under Part 3.4 of the MAC Act finding a permanent impairment of 19% based on his assessment of injuries to the plaintiff's spine and shoulders. Professor Fearnside also expressed the view that an injury to the plaintiff's left knee had not stabilised and was, in any event, outside his area of expertise.
4. On 31 October 2018, Dr Kalev Wilding issued a certificate finding a permanent impairment of 0% of the left knee (resulting in no change to Professor Fearnside's assessment).
5. On 19 July 2019, on application by the first defendant for a further medical assessment, a proper officer of the Medical Assessment Service ("MAS"), Josephine Redmond, directed, pursuant to s 62 of the MAC Act, that there should be a further assessment of the plaintiff's injuries previously considered by Professor Fearnside. This further assessment was referred to Dr Wilding.
6. On 9 September 2019, Dr Wilding assessed the plaintiff as having a permanent impairment of 12% and issued a certificate in the following terms: "The following injuries caused by the motor accident give rise to a permanent impairment which IS GREATER THAN 10%: ● Cervical spine - musculoligamentous strain and aggravation of pre existing degenerative change ● Lumbar spine - musculoligamentous strain ● Left shoulder - tendonitis of the rotator cuff and bursitis ● Right shoulder - Ngyuen [sic] Principle"
7. On 16 October 2019, the first defendant lodged an application pursuant to s 63 of the MAC Act for a review of the medical assessment conducted by Dr Wilding and the plaintiff lodged a reply on 15 November 2019.

Application for Judicial Review

1. As noted above, the plaintiff seeks an order in the nature of certiorari. The nature of certiorari was explained in Craig v The State of South Australia (1995) 184 CLR 163; [1995] HCA 58, as follows (at 175-176): "... certiorari is a process by which a superior court, in the exercise of original jurisdiction, supervises the acts of an inferior court or other tribunal. It is not an appellate procedure enabling either a general review of the order or decision of the inferior court or tribunal or a substitution of the order or decision which the superior court thinks should have been made. Where the writ runs, it merely enables the quashing of the impugned order or decision upon one or more of a number of distinct established grounds, most importantly, jurisdictional error, failure to observe some applicable requirement of procedural fairness, fraud and 'error of law on the face of the record'."
2. The present case raises no issue as to fraud or procedural fairness. The availability of certiorari is dependant therefore on establishing error of law on the face of the record or jurisdictional error.
3. It should be noted at the outset that none of the grounds in the amended summons articulate whether the complaint is one of error of law on the face of the record, or of jurisdictional error, or both. It is of importance that grounds, in the context of appeals of this nature, do so. It is, additionally, necessary to identify with precision any error of law alleged. Further, while s 69(4) of the Supreme Court Act makes clear that the record includes the reasons for the decision, nice issues may arise as to what else is included in the record, either as part of the formal record or by way of other material "incorporated into the record": see Ahern v Aon Risk Services Australia Ltd [2021] NSWCA 166. It may, in a given case, be necessary to consider and address such issues.
4. If relief in the nature of certiorari is found to lie, the Court has a discretion to refuse such relief.
5. Having regard to the above, the plaintiff must establish the following matters: 1. There was an error of law; 2. The asserted error of law was either jurisdictional or "on the face of the record"; and 3. In the event that jurisdictional error or error of law on the face of the record is established, the Court should intervene.

Section 62

1. As set out above, the issue before the delegate was whether to grant the first defendant's application to refer the plaintiff's matter for a further assessment in accordance with s 62 of the MAC Act.
2. That section 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 the President. (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 President. (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.
3. The effect of a referral is the conduct of a further assessment of the injury. A certificate resulting from that further assessment will prevail over any previous assessment: s 62(2). The plaintiff, it may be assumed, wishes to maintain the current certificate issued by Dr Wilding, given that it assesses his whole person impairment at greater than 10%.
4. It being a referral by a party for the purposes of s 62, it was necessary to satisfy s 62(1)(a) and s 62(1A). That is, it was necessary to establish that there was "additional relevant information about the injury" and that that information was "such as to be capable of having a material effect on the outcome of the previous assessment". On satisfaction of those matters a discretion to refer the matter was enlivened, s 62(1) providing a matter "may be referred again on one or more further occasions", subject to the preconditions being satisfied. In Jubb v Insurance Australia Ltd [2016] NSWCA 153; 76 MVR 228, Gleeson JA, with whom Meagher and Payne JJA agreed, said, with respect to s 62 (at [32]-[36]): "32. A number of aspects of s 62 should be noted. Each was common ground, except for the fourth matter below. First, it has been accepted that s 62 impliedly confers power on the proper officer to refer the matter to a medical assessor on a ground identified in s 62(1)(a), if the conditions set out in subs (1A) are satisfied: Rodger v De Gelder at [70] (Beazley JA, McColl and Macfarlan JJA agreeing); QBE Insurance (Australia) Ltd v Miller [2013] NSWCA 442; 67 MVR 322 (QBE Insurance v Miller) at [4] (Basten JA, Ward JA and Young AJA agreeing); Henderson v QBE Insurance at [78] (Meagher JA, Tobias AJA agreeing). 33. Secondly, in exercising the power of referral under s 62(1)(a) the proper officer performs the role of a gatekeeper. The capacity of the "deterioration of the injury" or "additional information" to affect a further medical assessment is a matter for the subjective satisfaction of the proper officer, not the determination of the court: Rodger v De Gelder at [113] (Macfarlan JA, McColl JA agreeing); QBE Insurance v Miller at [31] (Basten JA, Ward JA and Young AJA agreeing); Henderson v QBE Insurance at [49]-[51] (Beazley P, Meagher JA and Tobias AJA agreeing). 34. Thirdly, the formation of the opinion or state of satisfaction required of the proper officer under s 62(1A) is subject to judicial review. The relevant question is whether the proper officer's opinion has been formed according to law: Buck v Bavone [1976] HCA 24; 135 CLR 110 at 118-119; D'Amore v Independent Commission Against Corruption [2013] NSWCA 187; 303 ALR 242 at [220]. In QBE Insurance v Miller at [36], Basten JA explained the standard of review as follows: The critical question is thus "whether the determination was irrational, illogical and not based on findings or inferences of fact supported by logical grounds": Minister for Immigration and Multicultural and Indigenous Affairs v SGLB [2004] HCA 32; 78 ALJR 992 at [38] (Gummow and Hayne JJ). Further, as explained by Latham CJ in The Queen v Connell; Ex parte Hetton Bellbird Collieries Ltd [1944] HCA 42; 69 CLR 407 at 432: "If the opinion which was in fact formed was reached by taking into account irrelevant considerations or by otherwise misconstruing the terms of the relevant legislation, then it must be held that the opinion required has not been formed. In that event the basis for the exercise of power is absent, just as if it were shown that the opinion was arbitrary, capricious, irrational, or not bona fide. 35. In the present case, the appellant sought review on the basis that the proper officer misconstrued the terms of the MAC Act. 36. Fourthly, and contrary to the insurer's submissions, the power of referral is subject to a residual discretion ("may") given in s 62(1) of the MAC Act, whether or not to refer a matter for a further assessment. That the power of referral may be exercised or not, at discretion, is not contradicted by any contrary intention appearing in the MAC Act: Interpretation Act 1987 (NSW), ss 5 and 9; Ward v Williams (1955) 92 CLR 496 at 505-506; Samad v District Court of New South Wales [2002] HCA 24; 209 CLR 140 at [33]-[34]. Nevertheless, the discretion is not entirely unconstrained. The power conferred on the proper officer must be exercised in accordance with the subject matter, scope and purpose of the statute: Peko-Wallsend, 40. Further and again, contrary to the insurer's submissions, the existence of that discretion has been recognised in the authorities on s 62: see, for example, Mullin v CIC Allianz Australia Ltd [2015] NSWSC 831; 71 MVR 322 (Mullin) at [35] (Beech-Jones J)."

Material relied on by the first defendant

1. In the application before the delegate, the first defendant relied on the following material as "additional relevant information": 1. A Procare surveillance report dated 16 May 2019 and associated DVD; 2. A Verifact surveillance report dated 1 March 2020 and associated DVD; 3. Reports of Dr Harvey dated 2 January 2020, 23 March 2020 and 29 July 2020; and 4. Reports of Dr Menogue dated 11 January 2020 and 28 April 2020.
2. It should be noted that the Procare surveillance and report predate the assessment by Dr Wilding. Each of the other items postdate that assessment although the medical reports make reference to both the Procare surveillance predating Dr Wilding's assessment and the Verifact surveillance postdating the assessment. While in existence at the time, the Procare surveillance and report were not provided to Dr Wilding for the purposes of his assessment.
3. In the additional medical reports both Drs Harvey and Menogue confirmed their previous views as to the plaintiff's level of injury. In this sense there was no new opinion. The reports did, however, make reference to the surveillance material and provided opinions that that material was consistent with the earlier findings.
4. Dr Harvey initially examined the plaintiff on 18 March 2019 and provided a report on 19 March 2019. That report (which predated Dr Wilding's assessment) concluded that the plaintiff suffered a whole person impairment of 0%. Dr Harvey was subsequently requested to provide further reports. For the purposes of the report of 2 January 2020, he was provided with the Procare surveillance and Dr Wilding's assessment. The report states, that "[h]aving viewed this surveillance evidence and read Dr Wilding's MAS certificate I see no reason to alter my opinion as previously expressed in my report of 19/3/2019".
5. For the purposes of the report of 23 March 2020, Dr Harvey was provided with the Verifact surveillance. That report referred to the Verifact surveillance and said "[a]s the earlier DVD from Procare, [the plaintiff] has been shown at all times turning his head freely from side to side". The report continued, "I believe the manner in which he is moving his arms and his head during the surveillance is not compatible with the severe disability of which he complains". The surveillance referred to is, in context, the Verifact surveillance. The report concluded, "[h]aving seen this surveillance, I see no reason to alter my opinions as previously expressed".

Submissions to the delegate

1. In order to understand the reasons of the delegate, the subject of attack in this Court, it is necessary to have some understanding of the approach of the parties before her. In submissions to the delegate, the first defendant contended that all of the material noted above at [41] was "additional relevant information about the injury" and "capable of having a material effect" on the outcome of the assessment. It was pointed out that none of the material was available to Dr Wilding when he conducted his assessment of 9 September 2019. It was also submitted that the material contained "more than just contrary findings of whole person impairment". Rather, it was submitted that the reports and surveillance evidence "disclose observations which were not previously considered by Assessor Wilding and which indicate that the original assessment may be incorrect". Detailed submissions then followed with respect to the findings of Dr Wilding and the material relied upon. Immediately prior to the conclusion, submissions were made under the heading of "residual discretion". Under that heading, it was noted that where the preconditions for referral are satisfied, there remains a discretion as to whether a referral should be made. This submission continued by stating "[t]he insurer respectfully requests that the Proper Officer utilise his/her discretion afforded by Section 62 and refer this matter for a further assessment, noting that fairness and accuracy require the claimant to be reassessed in light of the recently received surveillance footage, and the further reports of Dr Menogue and Dr Harvey which indicate that Assessor Wilding's determination is not valid".
2. In his submissions in reply, the plaintiff submitted that the preconditions for referral pursuant to s 62 were not satisfied. The plaintiff submitted that the Procare surveillance report was not "additional relevant information" and pointed out that it predated the assessment of Dr Wilding. It was submitted that the first defendant: "… elected to withhold service of the [Procare] surveillance report and DVD … which it now submits is relevant to the assessment of the [plaintiff's] level of whole person impairment. In circumstances where the insurer did serve and rely upon other evidence the claimant submits that the surveillance footage and report was strategically withheld by the [first defendant] at that time as they did not consider it to be of "such a character that it is capable of changing the outcome of the previous assessment if it were placed before the medical assessor."" (emphasis in original)

The reasons of the Delegate

1. The delegate set out the background to the application and listed the "documents" relied on by the first defendant in support of the application. After noting the terms of s 62 and that she had received and considered the submissions of the parties, the delegate set out the following under the headings "Reasons" and "Conclusion": "Reasons 5. Dr's [sic] Harvey and Menogue have considered the surveillance conducted by both Procare (pre-MAS assessment) and Verifact (post-MAS assessment) and come to the conclusion that the movements demonstrated in that surveillance do not accord with the findings made previously by Assessor Wilding. 6. In their respective reports, both doctors definitively state that the degree of activity and movement undertaken by Mr Boga is inconsistent with the level of disability alleged and that the previous findings of the Medical Assessor are not supported. 7. The applicant has relied on the case of Asaner in support of the provision of the surveillance and subsequent reports. The respondent has raised issue with the fact that both doctors' opinions have not changed from the previous reports after having viewed the surveillance. 8. In the case of Asaner the applicant relied on a supplementary report of a doctor which confirmed her previous view and the Court held that the Proper Officer was not precluded from evaluating that report as being additional relevant information. This was on the basis that if the report was borne out of the viewing of the surveillance, it is legally open to the decision-maker to decide if the re-statement of the previously held opinion considered in light of the surveillance is 'additional relevant information.' Therefore, it is open to me to consider whether or not the subsequent reports of Dr Harvey and Dr Menogue are additional relevant information. 9. I am satisfied that the Verifact surveillance and subsequent reports of Dr Harvey and Dr Menogue are additional relevant information about the injury. The applicant has provided surveillance footage and the reports of two doctors, who have viewed and considered that surveillance footage, which post-date the medical assessment. The information casts doubt over the consistency of the claimant's presentation at the previous medical assessment and therefore calls into question the resulting whole person impairment. 10. I am also satisfied that 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. If a Medical Assessor were to find that the claimant's presentation is inconsistent and that the injuries are not as severe as previously assessed, this may have an effect on the assessment of impairment of all of the injuries and could result in a finding that the claimant's impairment as a result of the accident is less than 10%. 11. Therefore, I am satisfied that the criteria for referral of the matter for further assessment, in accordance with the requirements of section 62 of the Act have been met. Conclusion 12. The application for further medical assessment is accepted and will be referred for further assessment of the medical dispute."

Grounds 1 and 4: The asserted failure to view the surveillance or assess it separately

1. These grounds were dealt with together by the parties. Both grounds contend the delegate did not herself view the surveillance footage. In relation to Ground 1 it is further submitted that if she did, the delegate relied upon the assessment of the footage by Drs Harvey and Menogue, whereas she was required to form her own opinion as to whether the footage was "additional relevant information" and was "such as to be capable of having a material effect on the outcome of the previous assessment".
2. I am not satisfied that the plaintiff has established the delegate did not in fact view the footage. In stating, as she did (at [9]) that she was "satisfied that the Verifact surveillance… [was] additional relevant information about the injury", the delegate made plain that she was concerned with that material, separate to the medical reports. In the second sentence, the delegate specifically noted the first defendant "provided surveillance footage". If, as the plaintiff contends, the delegate was content to rely on the opinions of the doctors, that sentence would have been more conveniently expressed as "the applicant has provided reports of two doctors who have viewed and considered surveillance footage". In the next sentence, the delegate indicates that "[t]he information casts doubt over the consistency of the claimant's presentation". The information there referred to is the Verifact surveillance and the medical reports. That sentence includes, therefore, an expression of opinion as to the consistency (or lack thereof) between the surveillance footage and the plaintiff's presentation at the medical assessment. The inference to be drawn is that the delegate viewed the footage.
3. The above view is fortified by what was said by the delegate later in her statement of reasons, at [18]. There she indicated she had "considered the following" and set out a number of bullet points, the first of which was "[t]he application, reply and all supporting documentation submitted in this matter and the previous related medical assessment matter/s". The footage is properly to be considered part of the supporting documentation.
4. It is true that the delegate could have made plain that she had viewed the footage. The plaintiff contends that had the delegate viewed the footage, it can reasonably be expected that she would have said so in express terms. This was said to be particularly the case given the delegate's familiarity with the decision in Asaner. It might first be observed that Asaner does not purport to provide authority as to the minimum content of the delegate's reasons. In that case there was a dispute as to whether the delegate had viewed surveillance footage. Campbell J (at [20]) was not prepared to find that the delegate had not. For the purposes of the present case the most that can be said is that familiarity with Asaner might suggest an awareness of the potential for a dispute as to whether the footage had been viewed. Asaner was, however, drawn to the delegate's attention and considered by her for a different purpose. I do not accept that any assumed familiarity with all aspects of the decision elevated what was required of the delegate with respect to the content of her reasons.

Grounds 2 and 3: Error in concluding the reports were additional relevant information about the injury capable of having a material effect on the previous assessment

1. These grounds were dealt with together by the parties. It is convenient to adopt the same course in these reasons. As can be seen from the terms of the grounds, both complain of error in the delegate's conclusion that the reports of Drs Harvey and Menogue were additional relevant information. Ground 2 in addition complains with respect to the conclusion that it was information capable of having a material effect on the previous assessment, while Ground 3 complains as to the conclusion that it was additional relevant information about the injury.
2. With respect to these grounds the plaintiff contended that the reports did not contain any additional information, but rather simply confirmed the previous opinion of the doctors. It is true that both doctors affirmed their previously stated positions. However, in doing so it is also clear that they had regard to additional material, that being the surveillance material. The simple fact that the doctors reaffirmed their opinions did not mean that the information in their reports could not be considered as "additional relevant information". In Asaner, the basis on which the delegate determined a report was not "additional relevant information" was set out at [22]: "The gravamen of the proper officer's decision is that he was not satisfied that the additional information was relevant. Essentially this was because Dr Harvey-Sutton, relied upon by the insurer to explain the significance of the surveillance material, treated it as being merely confirmatory of her previous views which were before Dr Johnson, and not accepted by him to the extent to which her findings on examination differed from his. The proper officer made it clear in coming to that conclusion he was purporting to apply [Singh v Motor Accidents Authority of New South Wales (No 2) [2010] NSWSC 1443] and to some extent [Alavanja v NRMA Insurance Limited [2010] NSWSC 1182]. As the surveillance material was merely confirmatory of an opinion with which the medical assessor did not agree, the proper officer decided it, like the second report of Dr Harvey-Sutton, was not additional relevant information. I repeat the following from his reasons: "This is because it does not contain an opinion of a different kind as required by Singh, and is saying the same thing but using different or greater analysis, as outlined in Alavanja.""

Grounds 5, 6 and 7: Asserted errors relating to the residual discretion

1. Again, these grounds were dealt with together by the parties and can be conveniently dealt with together in these reasons.
2. As has been set out above at [39], there were three steps the delegate was required to take before referring the plaintiff's matter for further assessment pursuant to s 62. She was required to be satisfied that: 1. there was "additional relevant information about the injury" (s 62(1)(a)); 2. that information was "such as to be capable of having a material effect on the outcome of the previous assessment" (s 62(1A)); and 3. her discretion to refer the matter should be exercised.
3. As can be seen from the delegate's reasons set out above, no consideration was given to the discretion.
4. The first defendant contends that there was no error in this regard, or at least any error was not jurisdictional error, having regard to the way the issues were framed before the delegate.
5. As noted above, the first defendant, in its submissions seeking the referral made reference to the discretion, and as to why it should be exercised in favour of a referral. The plaintiff's submissions concluded with the heading "Delay and the Public Interest". Under this heading the plaintiff referred to "the public interest in the finality of administrative decision-making" and observed that it is also "an important factor which must be considered in determining whether to allow this application." The plaintiff further stated that "the MAS Guidelines allow 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 to be considered when determining if a 4A Application ought to be allowed". Following this, further reference was made to the public interest in the finality of litigation and to the history of the matter including various appeals and reassessments since its commencement in 2016.
6. Having raised the above matters, the submission, however, continued: "…whilst this does not preclude any further reassessment, the claimant submits that the evidence relied on by the insurer in bringing this application are not of a character that would be capable of changing the outcome of the previous assessment if it were placed before the medical assessor and as such, it would be contrary to the objects of the Act and the objects of MAS to allow the current 4A Application to succeed" (emphasis added)

Discretion

1. Although jurisdictional error has been established, this Court retains a discretion as to whether relief should be granted. Having regard to the importance of the discretion to the test in s 62, given the otherwise low bar, I am of the view that this Court should intervene. This is particularly so in the context of the history of this case. That is not to pre-empt any future decision. It is simply to say that it is a matter the plaintiff was entitled to have properly considered.

Orders

1. For the reasons set out above, I consider it appropriate to set aside the delegate's decision and to remit the matter to the second defendant for re-determination. Although the plaintiff sought a further order preventing the defendants or their officers, servants or agents from acting on or taking any further step in reliance on the delegate's decision, once the decision is quashed, there will be no decision on which the defendants can act. Accordingly, it is unnecessary to make such an order.
2. I make the following orders: 1. The decision of the second defendant's delegate dated 5 July 2021 to refer the plaintiff for further medical assessment pursuant to s 62 of the Motor Accidents Compensation Act 1999 (NSW) is quashed. 2. The first defendant's application under s 62 of the Motor Accidents Compensation Act 1999 (NSW) is remitted to the second defendant for determination according to law by a different delegate. 3. The first defendant is to pay the plaintiff's costs on the ordinary basis.

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: 12 May 2022