Chami v Motor Accidents Authority of NSW

CATCHWORDS : ADMINISTRATIVE LAW - prerogative writs and orders - certiorari - error of law - operation of sections 61 and 62 of the Motor Accidents Compensation Act 1999 - whether the Claims Assessor of the Motor Accidents Authority of New South Wales should consider the question of procedural fairness when making a determination whether to refer a matter for further medical assessment - the decision of the Claims Assessor was vitiated by jurisdictional error - Matter remitted to the Motor Accidents Authority of New South Wales to be determined in accordance with law

LEGISLATION CITED : Motor Accidents Compensation Act 1999 Supreme Court Act 1970

Attorney-General (NSW) v Quin (1990) 170 CLR 1 Electrolux Home Products Pty Ltd v Australian Workers' Union [2004] HCA 40; (2004) 221 CLR 309 Garcia v Motor Accidents Authority of New South Wales [2009] NSWSC 1056 CASES CITED : Houssein v Under Secretary of Industrial Relations & Technology (NSW) [1982] HCA 2; (1982) 148 CLR 88 Minister for Immigration & Ethnic Affairs v Wu Shan Liang [1996] HCA 6; 136 ALR 481 NAJT v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 134 Singh v Minister for Immigration & Multicultural Affairs [2001] FCA 389; 109 FCR 152 Trazivuk v Motor Accidents Authority of NSW [2009] NSWSC 1074

Sassin Chami (Plaintiff) PARTIES : Motor Accidents Authority of New South Wales (First Defendant) Australian Associate Motor Insurers Limited (Second Defendant)

B Nolan (Plaintiff) COUNSEL : Submitting Appearance (First Defendant) M Robinson (Second Defendant)

NSW Compensation Lawyers (Plaintiff) SOLICITORS : Crown Solicitor's Office (First Defendant) Ferguson Lawyers (Second Defendant)

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION ADMINISTRATIVE LAW LIST

30122/2008 - SASSIN CHAMI v MOTOR ACCIDENTS AUTHORITY OF NEW SOUTH WALES & ANOR

JUDGMENT (MACA -procedural fairness - ss 62(1)(b) and(4)) 1 HER HONOUR: The main issue to be decided is whether an assessor can take into account procedural fairness when making a determination under s 62(1)(b) of the Motor Accidents Compensation Act 1999 ("the Act"). By amended summons filed 2 October 2009, the plaintiff seeks firstly, an order in the nature of certiorari setting aside the decision of the delegate of the first defendant ("the CARS Assessor") in CARS matter number 2007/12/1913SM dated 4 August 2008 on the basis that the decision was vitiated by jurisdictional error and of no effect; and secondly, an order in the nature of mandamus or, alternatively, an order pursuant to s 65 of the Supreme Court Act 1970 that the CARS Assessor exercise his power pursuant to s 62 of the Act to refer the matter for further medical assessment in CARS matter number 2007/12/1913SM dated 4 August 2008 according to law.

2 The plaintiff is Sassin Chami ("the plaintiff"). The first defendant is the Motor Accidents Authority of New South Wales ("Motor Accidents Authority"), who has filed a submitting appearance. The second defendant is Australian Associated Motor Insurers Limited ("Australian Associated Motor Insurers"). The plaintiff relied on two affidavits of his solicitor Vic Petrovich sworn 25 September 2008 and 12 May 2009. Australian Associated Motor Insurers relied on the affidavit of Stephen John Ferguson sworn 26 May 2009 and 12 August 2009. 3 The plaintiff appeals the whole of the decision of the CARS Assessor dated 4 August 2008 on the grounds that the CARS Assessor failed to take into account a consideration made relevant by the Act, namely: when determining whether to refer the matter for further medical assessment pursuant to s 62 of the Act the CARS Assessor misdirected himself and/or asked himself the wrong question and/or applied the wrong principle as to what was required of him in his consideration of the operation of s 61(4) and s 62 of the Act; and/ or in the alternative, by failing to construe the Act correctly the CARS Assessor, so misdirected, formed an opinion not reasonably open to him; and secondly, by failing to consider the further claims upon which the application was put. 4 This action is brought pursuant of s 69 of the Supreme Court Act 1970. An error of law, on the face of the record, in the ultimate determination of a tribunal (including, in this case, the Assessor), is sufficient ground for issue of orders in the nature of certiorari. The Assessor is required to act judicially, in the sense that the term is used in establishing a basis for the issue of certiorari. For the purpose of order in the nature of certiorari, the face of the record includes reasons for the decision: see generally Supreme Court Act 1970 s 69(3) and s 69(4). The proper construction of s 62(1)(b) of the Act is a question of law. While there is no doubt that a certificate is the ultimate determination of an Assessor, whether the determination to refer a matter for a further medical assessment is an ultimate determination of an Assessor is not so clear. However, this point was not argued before me and it was not raised in Trazivuk v Motor Accidents Authority of NSW [2009] NSWSC 1074, so I will proceed on the basis that the s 62(1)(b) decision was an ultimate one. 5 On 30 March 2004, the plaintiff was involved in a motor vehicle accident. It is not necessary to refer to the circumstances of the motor vehicle accident, as they are not relevant to this application.

The relevant legislation 6 Under the Act, common law rights to damages for non-economic loss were significantly modified from that which previously applied under the common law. Section 131 of the Act prohibits the awarding of damages for non-economic loss, unless the degree of permanent impairment of the injured person as a result of the injury for which the Act compensates is greater than 10 per cent. The Act also requires any dispute about whether the permanent impairment of the injured person is more or less than the 10 per cent threshold to be resolved by an assessment by a medical assessor under Part 3.4 of the Act. 7 Sections 61 and 62 of the Act are contained in Part 3.4 of the Act and refer to medical assessments. Sections 61 and 62, prior to amendments effective as at 1 October 2008, provided: "61 Status of medical assessments

(1) The medical assessor or assessors to whom a medical dispute is referred is or are to give a certificate as to the matters referred for assessment.

(a) whether the degree of permanent impairment of the injured person is greater than 10%, or

(b) whether any treatment already provided to the injured person was reasonable and necessary in the circumstances, or

(b1) whether any treatment to be provided to the injured person is reasonable and necessary in the circumstances, or

(c) whether an injury has stabilised, is conclusive evidence as to the matters certified in any court proceedings or in any assessment by a claims assessor in respect of the claim concerned.

(3) Any such certificate as to any other matter is evidence (but not conclusive evidence) as to the matters certified in any court proceedings or in any assessment by a claims assessor in respect of the claim concerned.

(4) In any court proceedings, the court may (despite anything to the contrary in this section) reject a certificate as to all or any of the matters certified in it, on the grounds of denial of procedural fairness to a party to the proceedings in connection with the issue of the certificate, but only if the court is satisfied that admission of the certificate as to the matter or matters concerned would cause substantial injustice to that party.

(5) If a certificate as to any matter is rejected under subsection (4), the court is to refer that matter again for assessment under this Part and adjourn the proceedings until a further certificate is given and admitted in evidence in the proceedings.

(6) However, if a certificate as to whether or not the degree of permanent impairment of the injured person is greater than 10% is rejected under subsection (4), the court may, if it considers it appropriate, substitute a determination of the court as to the degree of permanent impairment of the injured person (assessed by the court in accordance with section 133) instead of referring that matter again for assessment under this Part.

(7) Except as provided by subsection (6), a court may not substitute its own determination as to any matter referred to in subsection (2) (a), (b), (b1) or (c).

(8) This section: (a) does not prevent a court from referring a matter again for assessment under this Part (as provided for by section 62), and

(b) does not require a court to refer a matter again for assessment under this Part if the matter is not a matter referred to in subsection (2) (a), (b), (b1) or (c).

(9) A certificate is to set out the reasons for any finding by the medical assessor or assessors as to any matter certified in the certificate in respect of which the certificate is conclusive evidence."

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

(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." 8 The plaintiff has been assessed for medical purposes on various occasions, a number of reviews have been sought and certificates have been issued. 9 The scheme of the Act generally is to give considerable force to a medical assessment certificate. Section 61(2) makes it conclusive as to the matters certified and although s 61(4) enables a court in court proceedings to set aside a certificate, it may do so only in the limited circumstance that there has been a denial of procedural fairness and that the admission of the certificate would cause substantial injustice. 10 Section 61 should be read in light of ss 62 and 63. Section 63 enables a party to a medical dispute to apply to the proper officer of the Authority to refer a medical assessment to a review panel comprising at least three medical assessors. However, for this to occur, the proper officer must first be satisfied that the assessment was "incorrect in a material respect." 11 The interplay between ss 61 and 62 (and s 63) of the Act has been explained by Patten AJ in Trazivuk in this way: "[31] Consistently, as it seems to me, with ss 61 and 63, s 62 (1)(a) authorises the reference of a matter for medical assessment on one or more further occasions upon the application of a party but subject to stringent conditions, namely that there has been a deterioration of the injury or there is additional relevant information about the injury and the deterioration or additional information, are capable of having a material effect on the outcome of the previous assessment These criteria, as amplified by the guidelines, are to be adjudged by the proper officer of the Authority who is not to direct a further reference unless they are met.

[32] Section 62(1)(b) may appear anomalous, in that it confers upon a court or a claims assessor the unfettered right to refer a matter for further medical assessment. Although s62(1)(b), which requires the intervention of a proper officer, on its face applies to all referrals under the section, it does not seem to me, as a matter of construction, that it applies to a referral by a court or claims assessor under s62(1)(b). However, the guidelines give the Proper Officer a limited role (irrelevant for present purposes) to such referrals.

[33] Section 62(1)(b) gives nobody the express right to apply to a court or assessor to refer a matter for further medical assessment and it may be (although this was not argued before me) that parliament intended that a reference under s62(1)(b) should be of the court or assessor's own motion. Otherwise there may be the avenue for a party to obtain a further medical assessment without first establishing deterioration of the injury or additional relevant information. However, Chapter 9 of the guidelines does seem to contemplate that a formal application to a court or assessor may be made, as occurred in this case." 12 At [37] to [38] his Honour concluded: "[37] Much was made by Ms Nolan as to what she asserted was the assessor's error of law in the April reasons when he stated that only a court has power "to set aside a MAS certificate on the ground of procedural unfairness". As it seems to me the question of "setting aside" such a certificate does not arise in this case and probably rarely, if ever, arises. The only relevant express power is conferred upon a court in court proceedings to "reject" a certificate by s 61(4) of the Act in the limited circumstances set forth in the subsection. In my opinion, this particular power may only be exercised by a court, applying the principle of expressio unius est exclusio alterus . The reference to "court" in s 61(4) is to be contrasted, for instance, with s 62(1)(b). [38] However, nobody was suggesting that the CARS Assessor should "set aside" or "reject" Dr Menogue's certificate. He was merely being asked to refer the matter for further medical assessment. In my view, he quite properly took into account, as a factor in exercising his discretion, his view that there had been no procedural unfairness. 13 Hence Patten AJ concluded that under s 62(1)(b) that an assessor can take into account whether there had been procedural unfairness when determining whether or not a matter should be referred for a further medical assessment. It is only when a party takes court proceedings seeking to have the medical certificate rejected that s 61(4) comes into play. The decision under review 14 On 4 July 2007, the plaintiff made an application to Assessor Wholohan seeking a further referral for a medical assessment pursuant to s 62(1)(b). On 4 August 2008, Assessor Wholohan refused the application to refer the matter, indicating that he was of the view that s 61(4) of the Act did not prevent the plaintiff from making an application to the court even if the matter was presently subject to a CARS application. He stated at [3] - [6]:

"3. The Claimant sought a review of the assessment of Assessor Marsh. The Acting Proper Officer issued a Statement of Reasons on 28 May 2008 concluding that he was not satisfied that there was a reasonable cause to suspect that the assessment was incorrect in a material respect. One of the grounds of the application was an allegation of procedural fairness in a manner in which the assessment was carried out. In relation to this submission, the Proper officer suggested that the appropriate forum for determination was the Court in accordance with Section 61(4). In his current application before me, the Claimant submits that he is prevented from arguing the matter in Court pursuant to Section 61(4) because the matter has not been exempted from the CARS Assessment. In my view, Section 61(4) does not prevent the Claimant from making an application to the Court even though the matter is presently subject to a CARS Application.

4. Notwithstanding that the Claimant relies on other grounds in support of his application, detailed submissions are made in relation to the medical assessment code of conduct and in particular in relation to the fairness, accountability and transparency of Assessor Marsh's assessment.

5. The Insurer opposes the Claimant's further application. In a letter dated 28 July 2008, it is submitted that the Claimant is asking me to set myself up as an expert on the guidelines in preference to both the MAS Assessor and the MAS Proper Officer.

6. I consider that the appropriate forum for resolving the procedural fairness issue raised by the Claimant in the Court and in the circumstances I am not prepared to refer the matter pursuant to Section 62." 15 The plaintiff argued that a jurisdictional error occurred when CARS Assessor failed to exercise his discretion as to whether to refer the medical dispute for assessment pursuant to ss 60 and 62 of the Act. The plaintiff contends there is nothing in s 61(4) or 62 of the Act or its Objects, purpose of scope that would fetter the CARS Assessor's discretion with regard to the matters forming the basis for referral and s 61(4) does not grant exclusive jurisdiction to the court in matters of procedural fairness. The plaintiff puts forward a number of bases that would suggest that the principle upon which the CARS Assessor placed his reasons is incorrect. They are firstly, the legislative intent for the creation of the CARS assessment process; secondly, the legislative intent for the introduction of s 61(4) of the Act; thirdly, the operation of s 61(4) within the legislative framework of the Act; and finally the function of the CARS assessment process as an expert body. It is not necessary to refer to the legislative intent. 16 The CARS Assessor received submissions from the second defendant's solicitors to the effect that he should not set himself up as a medical expert in the circumstances and that the Assessor did not have jurisdiction to determine a matter relying on procedural fairness grounds as it was a matter for the Supreme Court. 17 The plaintiff's submission that the Assessor misdirected himself by deciding that he could not determine the s 61(4) application himself is, according to the second defendant, misconceived in that it is based on a false premise. The second defendant submits that the Assessor never said that he could not refer the matter, he said he would not do so. According to the second defendant the Assessor did not assert or contend that he did not have the power to refer the matter. According to the second defendant, the Assessor, having taken into account the information and submissions from both sides, the CARS Assessor simply refused to make the referral for the reasons given and that determination was open to him as a matter of discretion pursuant to s 62 of the Act. 18 The second defendant further submitted that the plaintiff's submissions, read as a whole, especially with regard to the argument regarding the CARS assessment process as an expert body, are an impermissible attempt to have the Court consider the merits of the original application that was before the Assessor: Attorney-General (NSW) v Quin (1990) 170 CLR 1 at 35-36 (per Brennan J); and Minister for Immigration & Ethnic Affairs v Wu Shan Liang [1996] HCA 6; 136 ALR 481 at 482 points 1 to 5 (per Brennan CJ, Toohey, Mc Hugh and Gummow JJ). 19 Procedural fairness under the Act has also been considered by Rothman J in Garcia v Motor Accidents Authority of New South Wales [2009] NSWSC 1056 Rothman J in Garcia at [10] to [13] stated: "[10] The only basis, expressed in the Act, for the rejection, by a court, of the assessment of permanent impairment of the injured person, is that the process by which the assessment was determined denied to one or other of the parties appropriate procedural fairness: see s 61(4) of the Act. Even in the last mentioned circumstances, a court is entitled to reject a certificate on the grounds of denial of procedural fairness, only if it be satisfied that the admission of the certificate would cause substantial injustice to the party denied procedural fairness.

[11] But for the provision relating to the certificate being conclusive evidence, and the express reference to an exception on the grounds of denial of procedural fairness, there seems to be no privative provision restricting any other jurisdiction of the court that may allow the court to quash the assessment on grounds available for judicial review.

[12] It is possible that the express reference to a denial of procedural fairness as a ground for rejecting a certificate (and the only express ground) was intended to imply an exclusion of any other ground: expressum facet cessare tacitum or expressio (inclusio) unius est exclusio alterius . However, the rule of construction summarised by either of those maxims (and others of like effect) must be applied with extreme caution. It is a useful tool, to be applied with care and not universally. Usually it is utilised in confirming a construction that is otherwise available. It is "a valuable servant, but a dangerous master": Houssein v Under Secretary of Industrial Relations & Technology (NSW) [1982] HCA 2 ; (1982) 148 CLR 88.

[13] It would seem that if the legislature were desirous of excluding judicial review in the courts, then it could very easily have expressly done that. The right of an individual to seek orders in the nature of prerogative relief is a fundamental aspect of the rule of law, and a common law right, that, if it were able to be excluded, could be excluded only expressly or by words of necessary intendment: see Houssein , supra; Electrolux Home Products Pty Ltd v Australian Workers' Union [2004] HCA 40; (2004) 221 CLR 309." 20 Hence, Rothman J is of the view that except for s 61(4) there is no privative provision restricting judicial review of an ultimate decision of an Assessor by this Court. 21 Upon a proper construction of the Assessor's reasons, the Assessor did not, as the second defendant suggests, say that he would not refer the matter. The Assessor determined that the appropriate forum for resolving the procedural fairness issue is this court. I do not agree with the Assessor's approach. It is my view that an Assessor making a determination under s 62(1)(b), can take into account whether procedural fairness had been afforded during the medical assessment. This view accords with Patten AJ in Trazivuk. It may be that claimants can seek judicial review from this court in other circumstances but not where s 62(1)(b) already offers a remedy if procedural fairness has not been afforded.

Whether the CARS Assessor failed to consider the remaining grounds of the plaintiff's application 22 The plaintiff challenges this decision on the basis that the application was made on several grounds that related to the question of whether the plaintiff's degree of permanent impairment was less than 10 per cent, but the only ground the CARS Assessor dealt with was denial of procedural fairness. It is further alleged the CARS Assessor failed to consider the plaintiff's claims to the extent they were relevant for the purposes of the referral. 23 The second defendant submits that the plaintiff's complaint that the CARS Assessor failed to consider the remaining grounds for the plaintiff's application is a false issue in that, on a proper reading of the decision under review, the CARS Assessor did have regard to the other grounds and referred to them in his brief reasons at [3] to [4]. It is submitted that he had all the grounds before him and he plainly considered them. The second defendant further submitted that given the material before him, it cannot reasonably be contended otherwise: the same Assessor who had already referred the same matter for further medical assessment on 11 December 2007, made the decision of 4 August 2008. It is further argued that the Assessor was not under any express statutory or common law duty to provide reasons for his determination. However, the assessor has, in this instance provided reasons for his decision.

24 The plaintiff referred to NAJT v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 134 where Madgwick J stated at [212]: "… A decision-maker cannot be said to 'have regard' to all of the information to hand, when he or she is under a statutory obligation to do so, without at least really and genuinely giving it consideration. As Sackville J noted in Singh v Minister for Immigration & Multicultural Affairs [2001] FCA 389; 109 FCR 152 at [58], a 'decision-maker may be aware of information without paying any attention to it or giving it any consideration'. In my opinion, it would be very surprising if the delegate had genuinely paid attention to the letter and given it genuine consideration - had Black CJ's phrase in Tickner v Chapman (1995) FCR 451 at 462 engaged in 'an active intellectual process' in relation to the letter - yet remained silent about such consideration in the reasons he gave. …" 25 However, it should be borne in mind that in determining the approach the Assessor has taken, it is impermissible to trawl through the statement of reasons, looking for errors, or to apply an overtly strict or overzealous use of language - see Minister for Immigration & Ethnic Affairs v Wu Shan Liang at 491. 26 So far as the other grounds are concerned, all the Assessor stated was "…detailed submissions are made in relation to the medical assessment code of conduct and in particular in relation to the fairness, accountability and transparency of Assessor Marsh's assessment." While some of these grounds may go to the merits of the decision it is not appropriate for the Assessor to make an in-depth analysis of the merits of the decision - see Minister for Immigration & Ethnic Affairs v Wu Shan Liang at [27]. However, there appears to be no consideration of these other grounds at all. 27 This matter is to be remitted to the Motor Accidents Authority of New South Wales to be determined in accordance with law. 28 Costs are discretionary. Costs usually follow the event. The second defendant is to pay the plaintiff's costs as agreed or assessed.

(1) A declaration that the decision of the Claims Assessor of the Motor Accidents Authority of New South Wales made on 4 August 2008 in matter number 2007/12/1913SM is vitiated by error of law.

(2) An order in the nature of certiorari removing into this Court the decision of the Claims Assessor of the Motor Accidents Authority of New South Wales made on 4 August 2008 in matter number 2007/12/1913SM is quashed.

(3) Matter number 2007/12/1913SM is remitted to the Motor Accidents Authority of New South Wales to be determined in accordance with law.

(4) The second defendant is to pay the plaintiff's costs as agreed or assessed. **********

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