Campbell v AAI Limited t/as GIO

Supreme Court of NSW|2016-07-15|Before: Rothman J

Solicitors: Fishburn Watson O'Brien (Plaintiff) Curwood Lawyers (First Defendant) Crown Solicitor's Office (Second Defendant) File Number(s): 2016/00030267

Judgment

HIS HONOUR: By summons, the plaintiff Graeme Luke Campbell sought orders in the nature of certiorari or, alternatively, a declaration, having the effect of setting aside or declaring invalid, the whole of a decision of the Proper Officer of the Medical Assessment Service ("MAS") of the Motor Accidents Authority of New South Wales ("MAA"), which decision was dated 19 November 2015. Ancillary to the orders in the nature of certiorari or declarations, are orders in the nature of prohibition, or, alternatively, an injunction and/or orders in the nature of mandamus respectively, preventing any further steps consequent upon the impugned decision and requiring the MAA to reallocate the matter to a different Proper Officer for determination in accordance with law.
Since the filing of the summons the name of the second defendant altered from the Motor Accidents Authority of New South Wales to the State Insurance Regulatory Authority of New South Wales (in these reasons, for convenience, it will continue to be referred to as the MAA), which, on 17 February 2016, filed a Submitting Appearance being an appearance that submits to the making of orders and the entry of judgment, save as to costs. When the matter was listed for hearing, the parties notified the Court that they sought, by consent, certain orders which orders issued.

Chronology

The plaintiff was born on 14 September 1969 and, as at September 2011, was employed by the Marine Rescue Service New South Wales ("Marine Rescue"). On 18 September 2011, the plaintiff was injured in a motor vehicle accident on the Pacific Highway near Clybucca. The plaintiff was travelling in the front seat as a passenger, the driver being a colleague from Marine Rescue.
On 7 May 2014, the plaintiff applied for Assessment of Permanent Impairment Dispute by MAS and on 11 June 2014 a reply to that application was filed by AAI Limited t/as GIO, the first defendant ("GIO").
On 2 July 2014, a letter was sent from the MAA to Assessor, Dr Sam Perla, ("the Assessor") noting the medical dispute between the plaintiff and the first defendant had been referred for certification of injuries and assessment of the degree of permanent impairment.
On 17 July 2014, the plaintiff's solicitors sent a letter to the MAA, together with attachments, seeking to have the attachments included as late documents in the referral to the Assessor.
On 21 August 2014, the Assessor found the plaintiff to have 20% permanent Whole Person Impairment ("WPI"), comprised of 5% for the lower back; 8% for the right shoulder; and 9% for the left shoulder. The date of the assessment was 23 July 2014.
On 8 September 2014, GIO applied for a Review of the Medical Assessment by the Assessor and on the same day submissions for GIO in support of that application for review were filed.
On 2 October 2014, the plaintiff replied to the application for Review of Medical Assessment by the Assessor, and, at the same time, filed submissions in support thereof.
On 7 November 2014, the MAA wrote to the plaintiff's solicitor noting the satisfaction of the Proper Officer of reasonable cause to suspect that the assessment by the Assessor was incorrect in a material respect and the application was to be referred to a Medical Review Panel, including the reasons by the Proper Officer to support that decision, which were dated 5 November 2014.
On 25 March 2015, a Review Panel certificate was issued by a Medical Review Panel of MAS. The date of the assessment by the Medical Review Panel was 23 July 2014 and the Panel determined that the only injury caused by the motor vehicle accident was in the nature of soft tissue injury to the left shoulder, giving rise to WPI of 0%.
On 9 September 2015, the plaintiff applied for Further Assessment of the Permanent Impairment Dispute by MAS and included with that application the Workers Compensation Injury Claim Form, dated 26 September 2011; the claimant's submissions dated 21 August 2015; and the Statement of Graeme King dated 3 September 2015.
On 22 October 2015, the GIO replied including submissions in support of its reply. Between 30 October 2015 and 3 November 2015, there was correspondence relating to submissions between the MAA and the plaintiff's solicitor.
At 4:12pm on 3 November 2015, an officer of the MAA wrote, by email, to the plaintiff's solicitors seeking submissions as to why there had been a late lodging of the Supplementary Submissions by the plaintiff. At 9:36am on 4 November 2015, the plaintiff's solicitor wrote to the MAA noting that the submissions of both parties were late and submitting that cl 12.10.3 of the MAS guidelines applied. At 4:38pm that day, another officer of the MAA emailed the plaintiff's solicitor and GIO's solicitor, noting the plaintiff's Submission in Reply and inviting GIO to respond by close of business 9 November 2015.
On 19 November 2015, the decision, impugned by the Summons, issued.

The Impugned Decision

The impugned decision is in the form of a letter over the signature of the Proper Officer and dated 19 November 2015. The decision determines that the application will not be referred for further medical assessment. The reason given is that the Proper Officer is "not satisfied that the additional relevant information or deterioration of the injury is such as to be capable of having a material effect on the outcome of the previous assessment." (Decision of Jane Probert, Proper Officer of the Medical Assessment Service of the MAA, dated 19 November 2015.)
The Proper Officer asserts that "all supporting documentation submitted" has been considered and the Officer referred to the Motor Accidents Compensation Act 1999 (NSW) ("the Act"), the Medical Assessment Service Medical Assessment Guidelines ("the Guidelines") and two judgments; Singh v Motor Accidents Authority of New South Wales [2010] NSWSC 550 and Henderson v QBE Insurance (Australia) Ltd [2013] NSWCA 480.
Essentially, the Proper Officer determined that she would not address the statement of Graeme King, dated 3 September 2015, which was attached to the application, because the statement was not the subject of address in submissions. The Proper Officer took the view, as a consequence of comments in Henderson, supra, that it was only those matters upon which submissions were made that were required to be addressed.
Further, the Proper Officer took the view that the Workers Compensation Injury Claim Form, dated 26 September 2011, was not "additional relevant information" because the document was in the possession of the plaintiff's solicitors on 8 May 2013, prior to the assessment conducted by the Medical Review Panel on 19 March 2015, and could not be additional to the application from the applicant's perspective, even if relevant, and, in so doing, relied on comments of the Court in Singh, supra.

Consideration

At par 16 of the decision, the Proper Officer determined that it was unnecessary to address the Statement of Graeme King dated 3 September 2015. As summarised above, this view was taken on the basis that submissions were not made on the statement and that only that which was the subject of submissions was required to be addressed.
The material before the Court discloses, incontrovertibly, that the plaintiff, in its application for a further medical assessment made submissions on the Statement of Graeme King of 3 September 2015. In the plaintiff's submissions to the Proper Officer of 21 August 2015, the plaintiff made clear that its purpose in putting forward the proposed additional relevant information (which included the Statement of Graeme King) was to deal with the Review Panel's apparent concern as to the lack of contemporaneous records to corroborate the plaintiff's recollection about the parts of his body that were injured.
In the Submissions in Reply, dated 3 November 2015, and filed by the plaintiff with the Proper Officer, the plaintiff makes clear that the plaintiff was relying upon the Statement of Graeme King as "additional relevant information". The Submissions of 3 November 2015 were plainly before the Proper Officer: see the correspondence of Tiffany Brinkworth of 3 November 2015 at 9:59am; Kari Hilton of 3 November 2015 at 2:30pm; Tiffany Brinkworth of 3 November 2015 of 2:44pm; and Mark Fowler of 4 November 2015 at 4:38pm.
It was not open to the Proper Officer to decide that Mr King's Statement was not the subject of submission and was not a matter that was required to be addressed by the Proper Officer. The decision in relation to that matter is based either on a mistake of fact (as to the existence of submissions) upon which fact there is no evidence or probative material, or a misunderstanding of the principles outlined by the Court of Appeal in Henderson, supra. In either case, it is error of law that, if material to the ultimate outcome, would warrant orders in the nature of certiorari.
The Statement by Graeme King discloses that he reviewed the Workers Compensation Claim Form and confirmed the contemporaneous record of complaint by the plaintiff to the areas of the body that were in dispute.
A substantial aspect of the decision of the Medical Review Panel was the lack of contemporaneous records of the plaintiff's complaints of injury and contemporaneous records of the complaints was a critical issue in the determination of the Review.
Plainly, the Statement of Graeme King of 3 September 2015 was additional relevant information; it was the subject of submissions; it was expressly relied upon by the plaintiff before the Proper Officer; and it was required to be considered by the Proper Officer in determining the application.
Notwithstanding the foregoing, the Court ought to consider another ground raised by the plaintiff in these proceedings. The Proper Officer refused to allow the Workers Compensation Claim Form as additional relevant information based, expressly, on comments made by the Court in Singh, supra. There can be little doubt, given the contemporaneity of the material, that the Claim Form and the Statement of Graeme King were capable of having a material effect on the outcome of the previous assessment, being the assessment of the Medical Review Panel.
There are two matters that, with respect, the Proper Officer did not take into account. Firstly, whether or not the Workers Compensation Claim Form was available to the plaintiff prior to the Medical Review Panel assessment, the Workers Compensation Claim Form was additional information, because it formed a necessary aspect of a full understanding of the Statement of Graeme King.
In other words, Graeme King's Statement, confirming complaint after a review of the Workers Compensation Claim Form, required the Proper Officer to deal with the Claim Form (and would require a Review Panel to deal with the claim form) as part of understanding the importance of the Statement of Graeme King and its evidentiary force or probative value.
Secondly, it is not clear that the Proper Officer properly applied my comments in Singh, supra. Apart from that, the reasons in Singh, supra, were the subject of significant criticism (and I would venture to say overturned) by the judgment of the Court of Appeal in Rodger v De Gelder [2011] NSWCA 97; (2011) 80 NSWLR 594, which, of itself, would require caution in applying the principles outlined in Singh.
Indeed, I noted in QBE Insurance (Australia) Ltd v Motor Accidents Authority of NSW [2013] NSWSC 549; (2013) 67 MVR 322 that, in my view, at least on the question of the meaning of jurisdictional fact, Singh, supra, was no longer good authority. Singh is certainly not good authority on the question of whether the Proper Officer is amenable to prerogative relief or orders in the nature thereof.
Secondly, the circumstances in Singh were that a party obtained information and, for reasons associated with forensic advantage and/or tactics, deliberately chose not to bring the information before the relevant officer. As Beach-Jones J noted in Mullin v CIC Allianz Australia Ltd and Anor [2015] NSWSC 831 at 30 of my judgment in Singh: "His Honour did not consider it necessary to decide whether material that 'was not in the possession of the party, but could have been on reasonable efforts' could constitute 'additional … information' (Singh (No 2) at [59])."
As I observed in Singh v Motor Accidents Authority of NSW (No 2) [2010] NSWSC 1443, the insurer, in that case, chose not to use the information that was later said to be "additional". It is difficult to understand how a document that was not known to be in the possession of a party was available to the party.
In the present proceedings, there clearly was no deliberate intention not to use the Claim Form in the original material that was placed before the Panel or the Assessor. It was, on the material before the Court, admittedly overlooked as a single document within a voluminous set of documents that were returned on subpoena.
For the foregoing reasons the orders, issued ex tempore, were made. I make it clear that it is unnecessary for the Court to deal with the issue of what is "additional relevant information", nor whether the use of the word "may" in s 62 of the Act contemplates an exercise of discretion as distinct from being facultative.
For the foregoing reasons, on 15 July 2016 the Court issued the following orders: 1. An order in the nature of certiorari removing to this Court and quashing the whole of the decision of Jane Probert, Proper Officer of the Medical Assessment Service of the MAA, dated 19 November 2015, purportedly made under the Motor Accidents Compensation Act 1999; 2. An order in the nature of prohibition enjoining the defendants, or any of their officers, servants or agents, from acting on or taking any further steps in relation to the decision; 3. An order in the nature of mandamus remitting the matters the subject of the decision to the second defendant for reallocation of the matter to a different Proper Officer for determination according to law; 4. Each party bear his or its own costs in these proceedings.

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: 08 May 2017

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