Boyce v Allianz Australia Insurance Ltd

Court of Appeal (NSW)|2018-02-06|Before: Basten JA, Macfarlan JA, Mr J

Background

The appellant commenced proceedings in the Common Law Division seeking judicial review of the Review Panel Certificate issued on 31 August 2016 by the Medical Review Panel (Review Panel) pursuant to s 63(4) of the MAC Act. The Review Panel revoked the Medical Assessment Certificate issued by Dr MJ Rochford on 6 May 2016 which assessed the degree of permanent impairment of the appellant for the purposes of s 131 of the MAC Act at 10 per cent. In lieu of that assessment, the Review Panel assessed the appellant's degree of permanent impairment relating to injuries sustained by her in the motor vehicle accident of 8 June 2012 at two per cent. The Review Panel described the appellant's injuries resulting from the accident as "Urinary bladder-overactive".
In order for the appellant to be entitled to damages for non-economic loss s 131 of the MAC Act requires that her degree of permanent impairment be greater than 10 per cent. The consequence of the Review Panel's assessment, taking into account other Medical Assessment Certificates issued in relation to different injuries sustained by the appellant, was that she could not satisfy the statutory threshold and thus was not entitled to damages for non-economic loss.
The appellant's summons in the Common Law proceedings alleged that the Authority should have advised the appellant's solicitor that the Review Panel would not interview the appellant or, alternatively, that the Review Panel should have interviewed the appellant before making its decision. The failure to take either course was said to constitute a denial of procedural fairness.
As the primary Judge noted, the appellant's submissions in the Common Law proceedings strayed from the grounds identified in the summons. Among the additional arguments advanced on her behalf, the appellant contended that the decision comprised in the Review Panel Certificate was vitiated by jurisdictional error because the Panel was required by statute to conduct a re-examination of the appellant but had failed to do so.

PI Guidelines and the Practice Note

Mr Rewell SC, who appeared for the first respondent (Insurer) did not dispute that the principles of procedural fairness apply to a determination by the Review Panel. [85] Nor did Mr Rewell dispute that the PI Guidelines applied to the Review Panel's review of Dr Rochford's assessment. [86] Thus the Review Panel, in assessing the degree of the appellant's impairment, had to follow the three stages specified in cl 1.20 of the PI Guidelines. The second of the three stages is as follows: "(ii) An interview and a clinical examination, wherever possible, to obtain the information specified in the [MA Guidelines] and the AMA 4 Guides necessary to determine the percentage impairment". The Review Panel was required by cl 1.23 of the PI Guidelines to "only consider the impairment as at the time of assessment".
The Practice Note was issued pursuant to the Authority's power to provide training and information to assessors. Nonetheless, Mr Rewell correctly accepted that the contents of the Practice Note can be taken into account in determining whether the appellant was denied procedural fairness. The Practice Note includes the following provisions: "4a. General Principles: i The Review Panel should generally include a re-examination of the claimant, except in cases where there is no dispute, ambiguity or uncertainty as to the clinical findings that are required in order to complete all aspects of the assessment. ii If the Review Panel is informed that a party has objected to the review being conducted 'on the papers', then the Panel should generally conduct a re-examination."

The appellant's request

The Authority wrote to the appellant's solicitor on 9 August 2016 inviting her to indicate whether the appellant objected to the Review Panel being conducted without an examination and, if so, to provide reasons why an examination was required. As Basten JA has pointed out, the letter was apparently drafted by reference to par 4(a)(ii) of the Practice Note and seems not to have taken account of the general principle stated in par 4(a)(i) of the Practice Note [87] or the terms of cl 1.20(ii) of the MA Guidelines. [88]
In any event, the solicitor's responses made it clear that the appellant wished to be examined by the Review Panel. Indeed the solicitor's letter of 11 August 2016 asserted that the Review Panel could not give proper consideration to the application for review without an examination of the appellant, particularly having regard to the Review Panel's duty to determine the matter afresh. The solicitor's letter was not passed on to the Review Panel which proceeded on the erroneous assumption that the appellant did not object to the review being conducted on the documentation provided to the Review Panel. The appellant's solicitor was not notified that the Review Panel did not propose to re-examine her until after the Review Panel made its assessment of her percentage permanent impairment by reason of the injuries to the appellant's bladder.

Principles

A decision-maker's departure from a representation made by it or on its behalf as to the manner in which a review or assessment is to take place does not, of itself, constitute a denial of procedural fairness to the claimant. [89] However, such a departure may constitute a denial of procedural fairness if the circumstances show that the claimant has suffered practical injustice.
In Re Minister for Immigration and Multicultural and Indigenous Affairs; ex parte Lam (Ex parte Lam), [90] Gleeson CJ observed that: [91] "the content of the requirements of fairness may be affected by what is said or done during the process of decision-making, and by developments in the course of that process, including representations made as to the procedure to be followed. So, for example, if a decision-maker informs a person affected that he or she will hear further argument upon a certain point, and then delivers a decision without doing so, it may be easy to demonstrate that unfairness is involved. But what must be demonstrated is unfairness, not merely departure from a representation. Not every departure from a stated intention necessarily involves unfairness, even if it defeats an expectation. … The ultimate question remains whether there has been unfairness; not whether an expectation has been disappointed." Gleeson CJ went on to say that a common example of practical injustice resulting from a decision-maker's failure to take a procedural step is where the claimant relies on the decision-maker's statement of intention and refrains from putting forward material to support his or her case. [92]
Gleeson CJ identified Haoucher v Minister for Immigration and Ethnic Affairs (Haoucher) [93] as a case in which a decision-maker's failure to take a procedural step caused a claimant to lose an opportunity to make representations and thus denied the claimant procedural fairness. In Haoucher, the Minister had a statutory power to order the deportation of a non-citizen who had been convicted of certain offences. A ministerial policy statement tabled in Parliament stated that only in exceptional circumstances would the Minister overturn a recommendation by the Administrative Appeals Tribunal to revoke a deportation order. The High Court, by majority, held that procedural fairness required that the deportee be given the opportunity to be heard on the question of exceptional circumstances. [94] Specifically, the deportee was entitled to know what circumstances were said by the Minister to be exceptional and to be given an opportunity to address the question. [95]
Some of the language in the majority judgments in Haoucher refers to "legitimate expectations", a concept since rejected as a touchstone for determining whether procedural fairness should be accorded to a person or for determining the content of procedural fairness. [96] But as Gleeson CJ's reference shows, the decision in Haoucher does not depend on the concept of legitimate expectations, but on the principle that if a decision-maker has represented that a particular procedure will be followed, fairness may require that the decision-maker be held to the representation. [97]
If a decision-maker fails to follow an announced procedure, there may be an issue as to whether the claimant must show that he or she would have acted differently had the correct procedure been followed. In Ex parte Lam, the Minister was considering whether to cancel the applicant's visa on character grounds. A representative of the Minister indicated to the applicant that the Department wished to contact a carer of the applicant's children to assess the impact of cancellation of the visa on the children. No such contact took place. However, there was no suggestion that the applicant would have acted differently had he had known that the Department would not contact the carer.
The applicant's claim to have been denied procedural fairness was rejected. According to Gleeson CJ, no practical injustice had been shown because the applicant had not lost any opportunity to present his case and had not relied to his disadvantage on the Department's statement of intention. [98] Other members of the Court took the same view. [99]
The decision in Ex parte Lam does not mean that it is always necessary for a person seeking to establish a denial of procedural fairness to prove what he or she would have done if procedural fairness had been observed. As Gageler and Gordon JJ explained in Minister v WZARH: [100] "[58] … What must be shown by a person seeking to establish a denial of procedural fairness will depend upon the precise defect alleged to have occurred in the decision-making process. [59] There are cases in which conduct on the part of an administrator in the course of a hearing can be demonstrated to have misled a person into refraining from taking up an opportunity to be heard that was available to that person in accordance with an applicable procedure which was otherwise fair. To demonstrate that the person would have taken some step if that conduct had not occurred is, in such a case, part of establishing that the person has in fact been denied a reasonable opportunity to be heard. [60] Where, however, the procedure adopted by an administrator can be shown itself to have failed to afford a fair opportunity to be heard, a denial of procedural fairness is established by nothing more than that failure, and the granting of curial relief is justified unless it can be shown that the failure did not deprive the person of the possibility of a successful outcome. The practical injustice in such a case lies in the denial of an opportunity which in fairness ought to have been given." (Citations omitted.)
The facts of Minister v WZARH bear some resemblance to those of the present case. The claimant sought an "Independent Merits Review" of a decision of a delegate of the Minister to refuse the claimant's application for a protection visa. The claimant was interviewed by a reviewer who told him she would undertake a rehearing of his claim and consider all information he provided. Subsequently, a second reviewer took over the review. The second reviewer rejected the claimant's application without a further interview of the claimant, although the second reviewer had available a transcript and recording of the interview conducted by the first reviewer. The High Court held that the second reviewer had denied the claimant procedural fairness by failing to conduct another face to face interview.
The plurality in Minister v WZARH pointed out that the first reviewer could take into account the impression gained at the interview in determining whether the claimant's account of events was truthful. This fact provided a basis on which to distinguish Ex parte Lam. [101] The plurality reasoned as follows: [102] "[38] It may be accepted that, as the Minister argued, the [claimant] was not entitled to insist upon the observance of a particular form of decision making process. But that is not to the point. Rather, the questions are whether it was unfair for the Second Reviewer to proceed by reference only to some of the information made available to the First Reviewer and the impressions as to his credibility formed from those materials, and whether it was unfair to deny the [claimant] the opportunity to be heard on whether the IMR [Independent Merits Review] should proceed in that way. … [40] The fact that the First Reviewer interviewed the [claimant] affords, at the very least, some practical indication of what procedural fairness required in the circumstances of this case. An interview in the course of the IMR process provides the reviewer with opportunities for direct questioning of the [claimant]; for clarification of areas of confusion or poor understanding on both sides; and for the observation of the demeanour of the [claimant]. Impressions formed by a decision maker from the demeanour of an interviewee may be an important aspect of the information available to the decision maker. That this is so has long been recognised." (Citations omitted.)
It follows from Minister v WZARH that there are circumstances in which a decision-maker's failure to interview (or, in a medical case, examine) a claimant may constitute a denial of procedural fairness. It also follows that in order to make out a denial of procedural fairness, a claimant does not necessarily have to show what he or she would have done had procedural fairness been afforded. The touchstone is whether the claimant has shown that the procedure adopted involved practical injustice.

Significant features of the present case

There are a number of features of this case that are of significance on the question of whether the appellant was denied procedural fairness.
First, the Review Panel was required by cl 1.20(ii) of the PI Guidelines to conduct an interview and clinical examination, wherever possible, to obtain the information specified in the MA Guidelines and the AMA 4 Guidelines necessary to determine the percentage impairment.
Secondly, the Practice Note, which contains General Principles for the guidance of the Review Panel, states that:

the Review Panel should generally conduct a re-examination of the claimant, except where there is no dispute, ambiguity or uncertainty as to the clinical findings required in order to complete all aspects of the assessment; and
in any event, if the Review Panel is informed that a party has objected to the review being conducted on the papers, the Panel should generally conduct a re-examination.

Thirdly, Chapter 11 of the AMA 4 Guidelines, which applies to the urinary and reproductive systems, provides criteria: "for evaluating the effects that permanent impairments of the urinary and reproductive systems have on the ability of individuals to perform their activities of daily living". Chapter 11 states that a medical evaluation report should include information on a variety of clinical and related matters including "Impact of medical condition(s) on life activities".
Chapter 11.3 of the AMA 4 Guidelines identifies four classes of "Impairment of Whole Person" where there is permanent impairment of the bladder. A patient is within Class 1 (0 to 15 per cent impairment) when: "the patient has symptoms and signs of bladder disorder requiring intermittent treatment and normal functioning between the episodes of malfunctioning."
Fourthly, Dr Rochford conducted an interview with and examination of the appellant. He therefore had the advantage afforded by an interview and examination in applying the criteria laid down by Chapter 11 of the AMA 4 Guidelines
Fifthly, in response to the Authority's invitation to indicate whether the appellant objected to the review being conducted without an examination, the appellant's solicitor in effect asserted that an examination was essential if the Review Panel was to carry out its task. Since the reply was never passed on, the Review Panel was unaware that the appellant did indeed object to the review being conducted without an examination. Accordingly, the Review Panel's determination was made without a re-examination of the appellant.
Sixthly, the Review Panel was required by the PI Guidelines, cl 1.23, to consider the impairment at the date of its assessment, not the date of Dr Rochford's assessment.

Determination

The Practice Note constituted a public pronouncement that the Review Panel, if the appellant objected to the review being conducted on the papers, would "generally" conduct a re-examination. The Review Panel clearly accepted that it should proceed consistently with the Practice Note, since the letter it sent to the appellant's solicitor was drafted by reference to the language in the Practice Note.
Independently of the Practice Note, by virtue of the PI Guidelines the Review Panel was obliged, wherever possible, to obtain the information specified in the AMA 4 Guidelines necessary to determine the percentage impairment. Clearly in this case a re-examination of the appellant was possible. It may be accepted that it was for the Review Panel to make a judgment as to whether a re-examination was "necessary to determine the percentage impairment" referable to the injuries to the appellant's bladder. But in making that judgment the Review Panel had to take into account not merely the objective clinical manifestations of the appellant's condition, but (in the language of the AMA 4 Guidelines) the impact of the appellant's urinary condition on her ability to perform the activities of daily living. The fact (unknown to the Panel) that the appellant not only wished to be re-examined but considered a re-examination essential if the Review Panel was to make its decision afresh, was clearly material to the question of whether a re-examination was "necessary to determine the percentage impairment".
In these circumstances, the Authority's failure to inform the Review Panel that the appellant insisted on a re-examination resulted in practical injustice in at least two respects. First, the Review Panel was unable to take into account the appellant's objection when considering whether or not the general rule stated in par 4(a)(ii) of the Practice Note should be followed because the Review Panel was not told that she objected to the review being conducted unless a re-examination took place. Secondly, the Review Panel was unable to make a fully informed decision as to whether a re-examination was "necessary to determine the percentage impairment" unless it took into account that the appellant considered a re-examination to be essential for the proper discharge of the Review Panel's statutory functions.
The Review Panel's judgment on these matters had to be made for the purpose of assessing the degree of the appellant's permanent impairment or as at the date of the assessment. That task, as has been noted, did not merely require the Review Panel to make an objective clinical judgment about the nature and extent of the physical damage to the appellant's bladder. The Review Panel had to assess the impact of the physical damage on the appellant's "activities of daily living". The appellant's own experiences and her perceptions of the impact of her condition on her daily life were directly relevant to that question.
In my view, this is a case where the procedure adopted by the Review Panel, albeit through no fault of the members, denied the appellant a fair opportunity to be heard and therefore resulted in practical injustice. The appellant was denied the opportunity to have the Review Panel make a fully informed decision, in accordance with the published criteria, as to whether it should conduct a re-examination.
It cannot be said that if the Review Panel had before it the appellant's request for a re-examination it would still have decided that a re-examination was neither necessary nor appropriate. And it certainly cannot be said that the Review Panel's assessment would inevitably have been the same even if a re-examination had taken place. [103] It follows that it was not essential for the appellant to demonstrate what she or her advisers would have done had the Review Panel informed her in a timely fashion that it intended to reject her request for a re-examination to take place. Nor was it necessary for the appellant to show that her actions were likely to have made a difference to the Review Panel's decision. The procedure adopted by the Review Panel involved practical injustice to the appellant.
If, contrary to my view, the appellant had to demonstrate that, if given the opportunity, she would have taken further steps to attempt to persuade the Review Panel to assess her degree of permanent impairment at higher than two per cent, the appellant discharged that burden.
The appellant's solicitor, Ms Gleeson, gave unchallenged evidence that the Review Panel did not advise her of their decision not to re-examine the appellant until after the Review Panel had issued its certificate assessing the appellant's whole person impairment at two per cent. Ms Gleeson further stated as follows: "If I had been advised by the Review Panel that their intention was to determine the matter without examining the [appellant], then I would have provided the Review Panel with further material to assist them in making their determination. The written material would have included, for example, the [appellant's] updated statement, outlining the material facts pertaining to her bladder dysfunction and its impact on her daily life, to assist the Panel in making its determination. The relevance of the Panel being able to see and properly assess the [appellant] is crucial because the assessment of whole person impairment relating to the [appellant's] bladder dysfunction must be made according to medical guidelines which provide for a range of impairment of whole person impairment in the area of bladder dysfunction, ranging from between 0% to 15%."
As Mr Rewell pointed out, this evidence was perhaps less precise than it might have been, in that the affidavit did not specify the additional material on which the appellant wished to rely. Nonetheless, the evidence establishes that if the Review Panel had notified the appellant's solicitor that the request for a re-examination had been rejected (a notification that could have been made only if the Review Panel was aware of the request), the appellant would have provided additional material addressing the question the Review Panel was required to consider. Had this course been followed, there is at the very least a real possibility that the Review Panel's assessment may have been more favourable to the appellant.
Contrary to Mr Rewell's submissions, it is not to the point that there was no specific evidence that the appellant's physical condition had deteriorated in the four months between the assessment of Dr Rochford and that of the Review Panel. The appellant may well have wished to present more detailed information explaining the effect of her bladder condition on her daily life in order to explain and support Dr Rochford's assessment of her permanent impairment or even to argue for a higher percentage assessment. The appellant was denied that opportunity.

Orders

I agree with the orders proposed by Basten JA. However, I would make the following additional order which was sought in the appellant's summons filed in the Common Law Division proceedings: 2A Order that the review of the Certificate issued by the Assessor on 6 May 2016 be referred to the Motor Accidents Medical Assessment Service for referral to a newly constituted Medical Review Panel.

Endnotes

Boyce v Allianz Australia Insurance Ltd [2017] NSWSC 785 ("Boyce").
Motor Accidents Compensation Act, s 132(1).
Motor Accidents Compensation Act, ss 57A, 58(1)(d), 59 and 60(2).
Cf McKee v Allianz Australia Insurance Ltd (2008) 71 NSWLR 609; [2008] NSWCA 163 dealing with s 63 before the insertion of subs (3A).
See at [18] below.
Ali v AAI Ltd [2016] NSWCA 110 at [86]-[89] (Leeming JA).
Medical Assessment Guidelines, cll 16.11-16.15.
Medical Assessment Guidelines, cl 16.17.
Medical Assessment Guidelines, cl 16.18.
Medical Assessment Guidelines, cl 16.19.
Permanent Impairment Guidelines, cl 1.2.
Permanent Impairment Guidelines, cl 1.3.
See, for example, Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28 at [38].
Compare Ali at [93]-[99].
Permanent Impairment Guidelines, cll 8.21-8.22.
See generally, Greg Weeks, Soft Law and Public Authorities - Remedies and Reform (2016, Hart Publishing) at pp 30-35; M Aronson, M Groves, G Weeks, Judicial Review of Administrative Action and Government Liability (6th ed, 2017, Lawbook Co) at [3.270].
Practice Note, par 3.a.
Affidavit, Sally Gleeson, 25 November 2016, at par 29.
Affidavit, par 37.
Affidavit, par 38.
Certificate, p 2 of 6, Review details Part C.
Motor Accidents Compensation Act, s 63(3A).
Permanent Impairment Guidelines, par 1.20(ii), set out at [20] above.
Medical Assessment Guidelines, cl 16.21.2, set out at [14] above.
See Permanent Impairment Guidelines, cl 1.23 set out at [18] above.
Motor Accidents Compensation Act, s 132(3).
Permanent Impairment Guidelines, cl 1.21.
(2015) 256 CLR 326; [2015] HCA 40.
Stead v State Government Insurance Commission (1986) 161 CLR 141 at 145‑147; [1986] HCA 54.
(2003) 77 ALJR 1088; [2003] HCA 26.
Dranichnikov at [23].
Dranichnikov at [88].
Dranichnikov at [89].
[2015] NSWCA 328 (McColl and Meagher JJA, Macfarlan JA agreeing).
Boyce at [55].
Boyce at [37].
Rutland at [31].
Rutland at [33].
Rutland at [24].
Boyce at [56].
Boyce at [58].
Boyce at [62].
Boyce at [63].
Boyce at [66].
(1985) 159 CLR 550 at 633; [1985] HCA 81.
(2000) 204 CLR 82; [2000] HCA 57.
Aala at [4].
Stead at 145 (Mason, Wilson, Brennan, Deane and Dawson JJ).
Boyce at [71].
(2003) 214 CLR 1; [2003] HCA 6 at [37].
Affidavit, Sally Gleeson, 25 November 2016, at par 43.
(1986) 161 CLR 141 at 145-147; [1986] HCA 54.
Stead at 145.
Stead at 145-146.
Stead at 146.
[1971] 1 WLR 1578, 1582 (Lord Reid).
R (on the application of Bancoult No 3) v Secretary of State for Foreign and Commonwealth Affairs [2018] UKSC 3 at [23], [42] (Lord Mance, Lords Neuberger, Clarke and Reed agreeing); cf [107]-[111] (Lord Kerr, Lady Hale agreeing at [128]).
Above at fn 46.
Ex parte Aala at [4].
Ex parte Aala at [59].
Ex parte Aala at [58].
Ex parte Lam at [19].
Ex parte Lam at [34].
See Haoucher v Minister for Immigration and Ethnic Affairs (1990) 169 CLR 648 at 672 per Gaudron J.
Ex parte Lam at [37].
Ex parte Lam at [106].
See also Hayne J at [122] and Callinan J at [148].
(2004) 221 CLR 1; [2004] HCA 62.
Applicant NAFF at [11].
Applicant NAFF at [32].
Applicant NAFF at [34].
Above fn 28.
At [51].
WZARH at [38].
WZARH v Minister for Immigration and Border Protection (2014) 230 FCR 130 at 148 [57].
Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 at 352 [31], 369 [86], 379‑380 [120]‑[124]; [2013] HCA 18.
(2003) 214 CLR 1 at 9 [25].
(2003) 214 CLR 1 at 14 [37]; [2003] HCA 6.
(2003) 214 CLR 1 at 14 [38].
(2003) 214 CLR 1 at 14 [38].
(2003) 214 CLR 1 at 13 [36].
Eg WACO v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 131 FCR 511 at 524-525 [57]-[58]; NBNB v Minister for Immigration and Border Protection (2014) 220 FCR 44 at 46 [4].
WACO v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 131 FCR 511 at 525 [58].
Practice Note, par 4.a.ii.
Frost v Kourouche [2014] NSWCA 39; 66 MVR 140 at [31] (Leeming JA, Beazley P and Basten JA agreeing).
Allianz Australia Insurance Ltd v Rutland [2015] NSWCA 328 at [10] (McColl and Meagher JJA, Macfarlan JA agreeing).
Set out at [109] above.
Set out at [108] above.
M Aronson, M Groves and G Weeks, Judicial Review of Administrative Action and Government Liability, Law Book Co, 6th ed 2017 at [7.200].
(2003) 214 CLR 1; [2003] HCA 6.
Ex parte Lam at [34].
Ex parte Lam at [37].
(1990) 169 CLR 648; [1990] HCA 22.
Haoucher at 655 (Deane J); at 665, 670-671 (Toohey J); at 684 (McHugh J). Dawson and Gaudron JJ dissented.
Haoucher at 671.
Minister for Immigration and Border Protection v WZARH (2015) 256 CLR 326; [2015] HCA 40 at [30] (Kiefel, Bell and Keane JJ).
A principle accepted by Dawson J in dissent in Haoucher: at 659-660.
Ex parte Lam at [38].
Ex parte Lam at [106] (McHugh and Gummow JJ); at [122] (Hayne J); at [149] (Callinan J).
Minister v WZARH at [58]-[60].
Minister v WZARH at [37] (Kiefel, Bell and Keane JJ).
Minister v WZARH at [38], [40].
Stead v State Government Insurance Office (1986) 161 CLR 141; [1986] HCA 54 at 145 per curiam. 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: 20 February 2018

Solicitors: Turner Freeman (Appellant) Curwoods Lawyers (First Respondent) Crown Solicitor's Office (Second Respondent) File Number(s): 2017/212015 Decision under appeal Court or tribunal: Supreme Court Jurisdiction: Common Law Division Citation: [2017] NSWSC 785 Date of Decision: 20 June 2017 Before: Fagan J File Number(s): 2016/353452

HEADNOTE [This headnote is not to be read as part of the judgment] On 8 June 2012, Ms Joanna Boyce suffered injuries in a motor vehicle accident. The other driver admitted liability. Ms Boyce (the plaintiff) could only recover damages for non-economic loss if her injuries gave rise to whole person impairment greater than 10%: Motor Accidents Compensation Act 1999 (NSW), s 131. She underwent separate assessments for different injuries. Dr Rochford assessed impairment related to a bladder injury at 10%. The defendant's insurer (the respondent) applied for and was granted a review of Dr Rochford's certificate. The proper officer of the State Insurance Regulatory Authority ('the Authority') wrote to the plaintiff, notifying her of the review and stating that she should advise if she objected to the panel proceeding without re-examining her. Ms Gleeson, the plaintiff's solicitor, wrote to the Authority she objected. Although this correspondence was received by the Authority, the Review Panel was not made aware of the objection, and the Panel made its assessment without conducting an interview or clinical examination. The Panel revoked the original certificate and assessed impairment caused by the bladder injury at 2%. The assessment brought the claimant's combined whole person impairment down to 10%, below the s 131 threshold. The plaintiff commenced proceedings in the Common Law Division seeking judicial review of the Review Panel certificate. Ms Gleeson deposed that, had she been notified of the Panel's intent to proceed without re-examining Boyce, she would have provided further documentary material to the Panel to assist with their determination. On 20 June 2017, the primary judge (Fagan J) dismissed the summons on the basis that no reviewable error had been established. The plaintiff appealed. The principal issue for determination on appeal was whether the Panel's failure to interview and examine Ms Boyce as part of the assessment, or notify her of its intent to proceed without interview and examination constituted - (1) a constructive failure to exercise jurisdiction; and (2) a breach of procedural fairness. The Court (Basten JA, Macfarlan JA and Sackville AJA) allowed the appeal and held: In relation to (1):

(Per Basten JA, Macfarlan JA agreeing): the review panel was required to conduct a fresh assessment of the appellant's whole person impairment, based on information current at the time of the assessment: [9]. Whole person impairment assessments should include an interview and clinical examination "wherever possible": [21]-[22].
The decision not to examine and interview the appellant was an essential step in the assessment process: [50]; [58]. Whether there was a need for re-examination was a factual issue for determination by the panel; however, that determination could not be properly made on a false premise regarding the appellant's wishes: [49]; [56]; [58]. Minister for Immigration and Border Protection v WZARH (2015) 256 CLR 326; [2015] HCA 40 discussed; Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 77 ALJR 1088; [2003] HCA 26 considered.
It was not enough for the panel to accept all of Dr Rochford's descriptions and findings while varying his conclusions; the panel was required to determine the matter afresh: [57]. Allianz Australia Insurance Ltd v Rutland [2015] NSWCA 328 applied. In relation to (2):
As the appellant was not advised that the review assessment would occur without re-examination, she was deprived of the opportunity to put her case before the panel, as to why she "objected" to the Panel proceeding "on the papers", and as to what she might do if her objection were rejected: [94].
The respondent's argument that the appellant had not suffered practical injustice was misconceived. The Court's role is not to determine whether re-examination, or other alternative steps, might have impacted the panel's ultimate conclusion: [70]; [94]. The respondent could not demonstrate that the appellant was not deprived of the possibility of a successful outcome: [95], [132], [134]. Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam (2003) 214 CLR 1; [2003] HCA 6 distinguished; Minister for Immigration and Border Protection v WZARH (2015) 256 CLR 326; [2015] HCA 40 applied;
(Per Sackville AJA, Macfarlan JA agreeing): even if it were necessary for the appellant to demonstrate she would have taken further steps to persuade the Review Panel, Ms Gleeson's affidavit discharged that burden: [136]; [138].

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