Chami v Motor Accidents Authority of NSW - [2009] NSWSC 1358 - NSWSC 2009 case summary — Zoe

NSWNSWSC

Chami v Motor Accidents Authority of NSW

[2009] NSWSC 1358

Supreme Court of NSW|2009-10-02

At a glance

AI case summary

Result

appellant. Decision quashed; matter remitted to Motor Accidents Authority of New South Wales to be determined in accordance with law; second defendant ordered to pay plaintiff's costs

Key principles

A Claims Assessor exercising power under s 62(1)(b) of the Motor Accidents Compensation Act 1999 (NSW) may take into account whether procedural fairness was afforded during the...
Section 61(4) of the Act does not confer exclusive jurisdiction on courts to consider procedural fairness in relation to medical assessment certificates; rather, it provides a...
The Claims Assessor erred in law by determining that the appropriate forum for resolving the procedural fairness issue was the Supreme Court, thereby failing to exercise his...
A decision-maker must genuinely consider all grounds put forward in an application, not merely acknowledge their existence without active intellectual engagement; the Assessor...

Issues before the court

Whether a Claims Assessor exercising power under s 62(1)(b) of the Motor Accidents Compensation Act 1999 (NSW) may take into account procedural...

Plain English Summary

The Supreme Court decided that a Claims Assessor (CARS Assessor) has the power to consider whether a medical assessment was procedurally unfair when deciding whether to send the matter for another medical assessment under the Motor Accidents Compensation Act. The Assessor had wrongly thought that only the Supreme Court could deal with procedural fairness issues. The Court also found that the Assessor failed to properly consider all the grounds raised in the application. The decision was quashed and sent back to be decided correctly.

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Judgment (46 paragraphs)

[1]

CITATION : Chami v Motor Accidents Authority of NSW [2009] NSWSC 1358

[2]

[12]

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.

[32]

[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]:

[36]

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.

[41]

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.

Chami v Motor Accidents Authority of NSW

At a glance

Result

Key principles

Issues before the court

Plain English Summary

Judgment (46 paragraphs)

Cited legislation

Parties

Cases Cited (10)

Cited By (2)

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