De Gelder v Motor Accidents Authority of NSW

The application is based on additional relevant information about the injury. I am satisfied this information may have a material effect on the outcome of the application .

The existence of several other accidents, previously not considered for causation of the spine injury by a MAS assessor.

The matter will now be referred for further medical assessment of the dispute relating to permanent impairment of the spine.

…" (italics added; bold in the original) 12 The further assessment was organised with Dr Trevor Best and notified to him and the parties on 2 December 2008. The letter to Dr Best from the Proper Officer relevantly said this: "This matter has previously been assessed by the Medical Assessment Service (MAS). It is referred for reassessment on the grounds of deterioration or new information about the injuries which may make a material effect to the outcome."

The second sentence above was misleading because the matter was not referred for reassessment for anything to do with deterioration. It must be assumed, I suppose, that by that reference the Proper Officer was intimating that it was a referral under s 62(1)(a) Motor Accidents Compensation Act 1999 (MACA) rather than a referral under s 62(1)(b). The matter is only relevant because it might suggest some support for the view that the Proper Officer was in some doubt about what she was doing when she made the decision to refer the matter for further assessment on 28 November 2008. 13 On 4 December 2008, solicitors acting for Mr De Gelder wrote to the MAA saying that their client would not attending upon Dr Best as it was the client's intention to commence Supreme Court proceedings on the basis that the Application for further assessment had no basis for being granted and that in the event it was granted, the matter should have been referred back to the original assessor. A draft Summons claiming only a declaration that the decision to refer the matter for further assessment be quashed or in the alternative that it be referred back to the original assessor was attached. 14 The MAA replied to this letter and in the course of doing so addressed the decision not to refer the matter back to Dr Graham. It referred to the fact that his decision was reconsidered by a Review Panel and at the conclusion of that process the material the Review Panel had and its decision were forwarded to Dr Graham. The letter went on to say: "In circumstances where Assessor Graham is now privy to submissions made by the parties in relation to his original assessment, I am of the view that it is not appropriate for Assessor Graham to conduct a further assessment of this matter." 15 In fact Mr De Gelder attended the assessment conducted by Dr Best on 19 January 2009. Dr Best issued his Certificate and Reasons on 30 January 2009. Dr Best made reference to the accidents on 28 December 2000, 25 February 2002 and 23 August 2005 together with the work related injury of 30 November 2005. Dr Best also made reference to a motor vehicle accident in about 2003 where a tree penetrated the windscreen of a 4 wheel drive Mr De Gelder was driving (he reported no injuries) and a subsequent accident in 2008 where a vehicle struck the rear of the vehicle Mr De Gelder was driving (Mr De Gelder claimed no injuries). Dr Best also referred to a further work related injury in December 2006 when Mr De Gelder walked into a timber beam and was knocked unconscious. This caused an aggravation of neck symptoms and headache together with depression. 16 Dr Best's conclusions in relation to the thoracic spine were relevantly these: "Mr De Gelder has been aware of moderate pain in the lower thoracic region and the upper lumbar region since the subject motor vehicle accident (he describes this as pain in the "torso". His lower thoracic back pain has persisted subsequently to the present time and appears to have increased in severity during the period of treatment from the chiropractor which was in the form of regular of spinal manipulation. …

There is wedging of the body at T5 and T6 of the thoracic spine. However, there is no evidence to connect this wedging with the subject motor vehicle accident. This wedge appearance can be developmental, it can occur slowly and spontaneously in osteoporosis and it can be related to compression injury producing compression fractures. However, there is no evidence to link this latter cause, either radiological or clinical with the subject motor vehicle accident. There is no evidence to say that the wedge deformity has, in fact, been caused by compression fractures. The claimant's tender area is at T9/10 today. The motor vehicle accident involved the claimant's vehicle being struck from the rear when this would cause a hyperextension injury and not a compression injury to the thoracic spine. It is noted in this respect that the claimant has been involved in many motor vehicle injuries other than the subject motor vehicle accident and has had many manipulations of the spine carried out (in the presence of osteoporosis)." 17 Dr Best assessed whole person impairment of injuries caused by the motor vehicle accident as 0%. 18 Mr De Gelder applied on 18 March 2009 for a review of Dr Best's assessment. On the same day Mr De Gelder filed his Summons in this Court. The application for review was refused by another officer of the MAA on 24 April 2009 because she was not satisfied that there was a reasonable cause to suspect that the assessment of Dr Best was incorrect in a material respect.

Legislative background 19 Part 3.4 of MACA deals with medical assessment of injured persons. Section 58 provides that Part 3.4 applies to a disagreement between a claimant and insurer about any of a number of listed matters including: "(d) whether the degree of permanent impairment of the injured person as a result of the injury caused by the motor accident is greater than 10%". 20 The significance of the 10% figure is to be found in s 131 of the Act which provides: "No damages may be awarded for non-economic loss unless the degree of permanent impairment of the injured person as a result of the injury caused by the motor accident is greater than 10%." 21 Section 62 deals with the referral of a matter for further medical assessment and provides: "(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 claims assessor. (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 officer of the Authority designated by the Authority for the purpose (in this Part referred to as the proper officer of the Authority ).

(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." 22 Pursuant to s 44(1)(d) the MAA has issued Guidelines. These relevantly provide: "14.5 When determining whether a matter should be referred for further assessment under s 62(1)(a) whilst conducting an Allocation Review, the Proper Officer shall have regard to: 14.5.1 the application and any reply; 14.5.2 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, not limited to the same matter, after the parties have been provided with a copy of these documents; and

14.5.3 the objects of the Act and the objects of MAS. 14.6 For the purposes of section 62(1A) the word `material' includes that it is relevant and capable of altering the outcome of a dispute about: …

14.6.3 permanent impairment, from 'not greater than 10% whole person impairment' to 'greater than 10% whole person impairment' or vice-versa. 14.7 If the Proper Officer is not satisfied that the deterioration of the injury or the additional relevant information about the injury would have a material effect on the outcome of the application, the Proper Officer may dismiss the application. 14.8 The Proper Officer is to provide the parties with brief written reasons for the decision at the same time as, or as part of the notification to the parties, of the outcome of the Allocation Review as required by clause 9.2.

14.10 When the Proper Officer decides to refer a dispute for further assessment, the dispute may be referred to the original Assessor if available within a reasonable period and if, in the Proper Officer's view, it is appropriate in the circumstances, otherwise the dispute may be referred to a different Assessor.

… 14.12 The further assessment will involve consideration of all aspects of the assessment afresh subject to this clause and clause 14.13, and may include: 14.12.1 assessment of all the injuries assessed by the original Assessor in any previous assessment of this dispute; and 14.12.2 any additional injuries listed on the application for further assessment and any reply." (emphasis added) 23 Clause 14.13 makes it clear in permanent impairment disputes on the referral under s 62(1)(a) that physical and psychological injuries are to be considered separately. The Plaintiff's claims 24 Mr De Gelder says that he is entitled to an order in the nature of certiorari on the following bases:

(a) That the Proper Officer asked herself the wrong question under s 62;

(b) That the Proper Officer committed a jurisdictional error by considering irrelevant material.

(c) That the Proper Officer committed a jurisdictional error by failing to consider relevant material.

(d) That the Proper Officer committed a jurisdictional error in failing to refer the further assessment back to Dr Graham;

(a) Did the Proper Officer ask herself the wrong question? 25 It appears that the question the Proper Officer asked herself (based on what is set out in para [11] above was: "Am I satisfied that the additional relevant information may have a material effect on the outcome of the application for further assessment?"

Where she referred to "the outcome of the application" in her reasons she had used the word "application" twice previously and it is clear that what was being referred to (as the 1 st paragraph of the reasons makes clear) was the application for further assessment made by the Second Defendant. How she determined that the additional relevant information may have had a material effect on that application was not made clear. But nowhere does it appear that she determined the impact of the further information on the original assessment. 26 The question she ought to have asked herself, following what was required by s 62(1A), was whether the additional information was capable of having a material effect on the outcome of the assessment carried out by Dr Graham and subsequently reviewed by the Review Panel. Two things can be accepted. The first is that the word "may" (in the 2nd paragraph of her letter) could properly be substituted for the words "is such as to be capable of" (from s 62(1A)). The second thing is that the question the Proper Officer appears to have asked herself derived from clause 14.7 of the Guidelines which speaks about the additional information having "a material effect on the outcome of the application". It is tolerably clear from that clause in the Guidelines that, in a similar fashion to the expression of the Proper Officer in her reasons, the word "application" must have been a reference to the application for further assessment and not to the previous assessment itself. 27 After I reserved my decision in this matter it became clear from an examination of the Guidelines that they appeared, in some respects, not to have complied with what the Act required. Clause 14.7 was one example. Accordingly, I had the matter re-listed with notice being given to the MAA to enable it to make any submissions it wished to make concerning the wording of the Guidelines. The 3 matters concerning the Guidelines that had emerged during the hearing were these:

(a) The use of the word "application" in clause 14.7,

(b) The test formulated in clause 14.7 produced by the word "may", and

(c) The issue of whether the further assessment involving a consideration of all aspects of the assessment (clause 14.12) was what was required under s 62 particularly in the light of s 63(3A). 28 The MAA indicated that it wished to make submissions and the matter was listed for further argument in that regard when Ms Spruce of counsel appeared for the MAA. She submitted that the word "application" where first appearing in clause 14.7 must mean the substance of the application, that is to say it includes the task the Proper Officer has to complete for the purposes of ss 62(I)(a) and 62(1A). She pointed to the definition of "application" in clause 1.6.4 of the Guidelines which defines "application" as "the means by which a party requests the referral of a dispute for assessment or applies for a review." She referred also to clause 14.6 of the Guidelines that speaks of "altering the outcome of a dispute" about the 3 matters listed which accord with what appears in s 58 of the Act. 29 It seems to me there are 2 difficulties in the submissions of the MAA. First, the word "application" is defined in the Guidelines as meaning the means by which a party requests the referral of a dispute for assessment. In that way, "the outcome of the application" cannot mean "the outcome of the substance of the application" nor can that mean (as the written submissions suggest) "would the ultimate outcome of the application for further assessment if and when determined by a medical assessor be different from the outcome of the previous assessment by reason of the deterioration that has now occurred or the additional information that is now available?" 30 Secondly, it would be a rare case, and there would need to be a compelling context, where the same word used twice in the same sentence would, as a matter of proper construction, have a different meaning in each case. The word "application" where secondly used in the sentence unequivocally refers to the application itself made under s 62(1)(a) and accords entirely with the definition in clause 1.6.4. There is nothing compelling about the context to suggest that the same word "application" where earlier used does not mean the same thing. In the same way, the Proper Officer used the word "application" in the 1st paragraph of her letter and in its first position in the 2nd paragraph in accordance with the definition in clause 1.6.4. Her use of the same word further in the 2nd paragraph for the same reasons must mean that she used the term to mean the same thing. In that way, she asked herself the wrong question. 31 The 2nd area where clause 14.7 of the Guidelines appears to differ from what is required under s 62(1A) is only relevant in a more indirect way in the present matter. Section 62(1A) requires the Proper Officer to reach an opinion that the additional relevant information is capable of having a material effect on the outcome of the previous assessment, and unless that opinion is reached the matter may not be referred again for assessment. 32 Clause 14.7, on the other hand, poses, in the first place, a negative test, namely that if the Proper Officer is not satisfied that the additional relevant information would have a material effect, then there is a discretion to dismiss the application. The distinction between the positive and negative tests was a matter discussed in a slightly different but analogous context in Riverina Wines Pty Ltd v Registrar of the Workers Compensation Commission of NSW [2007] NSWCA 149 at [74] - [76], following the difference between Handley JA and Basten JA in Campbelltown City Council v Vegan [2006] NSWCA 284 at [8] and [133]. 33 I can see nothing in s 62(1A) which would allow the Proper Officer not to dismiss the application if the Proper Officer formed the view that the additional information was not capable of having a material effect on the outcome of the previous assessment. The MAA accepts that the word "may" in clause 14.7 ought to read "must": see, for example, the discussion in Finance Facilities Pty Ltd v Federal Commissioner of Taxation (1971) 127 CLR 106 at 133-135. This is because s 62(1A) is expressed in terms of a prohibition although it operates in a manner similar to a "jurisdictional fact". The MAA says that there is an objective circumstance that must be established to overcome the prohibition and where the objective circumstance does not exist the matter must not be referred for further assessment. 34 Both for this reason and for the use of the term "the outcome of the application" it seems to me that clause 14.7 of the Guidelines requires amendment to comply with the Act. 35 The fact that the decision that the Proper Officer asked herself a question contained in the Guidelines will not mean that the wrong question has not been asked. As Dunford J said in NRMA Insurance Ltd v Motor Accidents Authority of NSW (2004) 61 NSWLR 264 at [28]: "[28] In any event the Medical Guidelines, being delegated legislation, cannot affect the proper construction of the Act: D C Pearce and R S Geddes: Statutory Interpretation in Australia , 5th ed (2001) Sydney, Butterworths at 80 [3.37], or limit the rights conferred by the Act. They are there to indicate how the relevant assessments are generally carried out but must, where necessary, be applied so as to accommodate any unusual circumstances for which they do not make an express provision." 36 It appears that the Guidelines are only given statutory effect by s 65 in relation to the conduct of the medical assessments themselves, that section providing: "(1) Medical assessments under this Part are subject to relevant provisions of MAA medical guidelines relating to the procedures for the referral of disputes for assessment or review of assessments and the procedure for assessment."

Except to that extent, the Guidelines do not rise above their description as such: Cf Jovica Trazavuk v Motor Accidents Authority of NSW [2009] NSWSC 1074 at [22], but see Allsop P in McKee v Allianz Australia Insurance [2008] NSWCA 163 at [6]. 37 The Second Defendant frankly concedes on the face of it that the Guidelines appear to apply a test which is not that laid down in s 62. But the Second Defendant says that it is not sufficient to point to an error, whether an error in the question asked or some other error of law that the Proper Officer might have made. The Second Defendant says that it is not enough that there is an error of law but that it must be shown that the error is one which goes to the jurisdiction of the decision maker.

(i) Is asking the wrong question a sufficient error? 38 The Second Defendant draws attention to the passage in Craig v South Australia (1995) 184 CLR 163 where the joint judgment said at 179: "If such an administrative tribunal falls into an error of law which causes it to identify a wrong issue, to ask itself a wrong question, to ignore relevant material, to rely on irrelevant material or, at least in some circumstances, to make an erroneous finding or to reach a mistaken conclusion, and the tribunal's exercise or purported exercise of power is thereby affected , it exceeds its authority or powers. Such an error of law is jurisdictional error which will invalidate any order or decision of the tribunal which reflects it." (emphasis added) 39 The Second Defendant argues that the portion in that judgment emphasised above is an additional requirement to each of the identified errors. In the light of what is said in Minister for Immigration v Yusuf (2001) 206 CLR 323 at [82] - [84] I am not so sure that the emphasised proportion does not simply relate to the final ground put forward in the joint judgment "to make an erroneous finding or to reach a mistaken conclusion". Ordinarily, an erroneous finding would not of itself be an error that would enable the intervention of a court of review. But, if the tribunal's exercise of power was thereby affected it might be such an error. 40 The Second Defendant in fact relies upon what is said in para [84] of Yusuf. That paragraph refers to Ground (e) for review by the Federal Court of the relevant Tribunal pursuant to s 476 Migration Act 1958 as follows: "(e) that the decision involved an error of law, being an error involving an incorrect interpretation of the applicable law or an incorrect application of the law to the facts as found by the person who made the decision, whether or not the error appears on the record of the decision." 41 The judgment of McHugh, Gummow and Hayne JJ said at [84]: "No doubt it must be recognised that the ground stated in par (e) is not described simply as making an error of law. The qualification added is that the error of law involves an incorrect interpretation of the applicable law or an incorrect application of the law to the facts as found. That qualification emphasises that factual error by the Tribunal will not found review. Adopting what was said in Craig , making an erroneous finding or reaching a mistaken conclusion is not to make an error of law of the kind with which par (e) deals. That having been said, the addition of the qualification to par (e) is no reason to read the ground as a whole otherwise than according to the ordinary meaning of its language. If the Tribunal identifies a wrong issue, asks itself a wrong question, ignores relevant material or relies on irrelevant material in such a way as affects the exercise of its powers, that will very often reveal that it has made an error in its understanding of the applicable law or has failed to apply that law correctly to the facts it found. If that is so, the ground in s 476(1)(e) is made out." 42 Of course, that was a case on a particular statutory provision and it is not, for a number of reasons, completely relevant to the issue at hand. However, it is important to note what the joint judgment said in the immediately preceding paragraphs as follows: "[82] What is important, however, is that identifying a wrong issue, asking a wrong question, ignoring relevant material or relying on irrelevant material in a way that affects the exercise of power is to make an error of law. Further, doing so results in the decision-maker exceeding the authority or powers given by the relevant statute. In other words, if an error of those types is made, the decision-maker did not have authority to make the decision that was made; he or she did not have jurisdiction to make it. …

[83] … In particular, it is important to recognise that, if the Tribunal identifies a wrong issue, asks a wrong question, ignores relevant material or relies on irrelevant material, it "exceeds its authority or powers". If that is so, the person who purported to make the decision "did not have jurisdiction" to make the decision he or she made, and the decision "was not authorised" by the Act ." (emphasis added) 43 Those passages seem to suggest that the lack, or excess, of jurisdiction is determined by virtue of identifying one or more of the errors set out. So, if the wrong question was asked, the Proper Officer did not have the "authority" or the "jurisdiction" to make the decision for referral for further assessment. 44 It is not necessary, even at common law, for the Plaintiff to prove jurisdictional error, and the passage from Craig set out above is not limiting the availability of certiorari as the Second Defendant submits. The joint judgment discussed the scope of certiorari (at 175-176) saying: "Where available, 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. … 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". … [W]here relief is sought on the ground of error of law on the face of the record, the superior court is restricted to the "record" of the inferior court or tribunal and the writ will enable the quashing of the impugned order or decision only on the ground that it is affected by some error of law which is disclosed by that record." 45 Mr De Gelder submits that, in any event, the jurisdiction in the present case to review the decisions in question derives from s 69 Supreme Court Act 1970. In ASIC v Farley (2001) 51 NSWLR 494 Sperling J said at [9]: "The phrase "error of law" is not limited to jurisdictional error. Accordingly, since 1996 but subject to other legislation, this Court has had power to grant relief in the nature of certiorari for any error of law that appears on the face of the record of the proceedings (which includes the reasons for determination of the court or tribunal concerned). That includes non-jurisdictional error:"

This was a view accepted by the Court of Appeal in Hanna v Department of Immigration, Multicultural and Indigenous Affairs [2004] NSWCA 275 at [28]. 46 The question arises, however, whether the determination of the Proper Officer falls within subsections (3), (4) and (5) of s 69. The issue has relevance because at common law the reasons for the decision do not form part of the record: Craig at 180-181. Subsections (3), (4) and (5) provide: "(3) It is declared that the jurisdiction of the Court to grant any relief or remedy in the nature of a writ of certiorari includes jurisdiction to quash the ultimate determination of a court or tribunal in any proceedings if that determination has been made on the basis of an error of law that appears on the face of the record of the proceedings.

(4) For the purposes of subsection (3), the face of the record includes the reasons expressed by the court or tribunal for its ultimate determination.

(5) Subsections (3) and (4) do not affect the operation of any legislative provision to the extent to which the provision is, according to common law principles and disregarding those subsections, effective to prevent the Court from exercising its powers to quash or otherwise review a decision." (emphasis added) 47 The Second Defendant argues that the Proper Officer is not a court or tribunal with the result that it is necessary to identify one of the errors listed in the passage in Craig (para [32] above). It is said in Aronson, Dyer & Groves, Judicial Review of Administrative Action (4th Ed), (2009 Thomson Reuters) at 224 that subs (3) does not cover decision makers other than courts and tribunals, but no authority for that proposition is cited. 48 Basten JA, with whom McColl JA agreed, discussed this issue in Vegan where the decision maker was an Appeal Panel referred to in s 327 Workplace Injury Management and Workers Compensation Act 1998. Having identified the reference to "court or tribunal" in s 69(3) Basten JA made reference to ASIC v Farley and its approval in Hanna and went on to say at [50]: "… it would be wrong to infer that, prior to the introduction of s 69(3) in 1996, the Supreme Court had no power to quash a decision on the ground of error of law on the face of the record. Rather, the effect of sub-ss 69(3) and (4), taken together, was to expand the concept of the record, in circumstances where the provisions applied, beyond that identified in Craig ." 49 He then drew attention to the judgment of Davies AJ in Hargrave v Slater [2000] NSWSC 387; (2003) 113 A Crim R 371 and said at [51]: "… at [17] his Honour quoted a passage from Craig which reflected the long-established view that certiorari was available against the acts of an inferior court or other tribunal, where error of law on the face of the record, not being jurisdictional error, was established: 184 CLR 175-176."

Having then made reference to s 69(5) Supreme Court Act Basten JA said at [52]: "A section dealing with jurisdiction to grant relief should be understood as operating only in circumstances where such relief is available."

But whether the Appeal Panel was a "tribunal" for the purpose of s 69(3) was assumed and not argued. 50 I doubt that it was intended by subsection (3) to confine the extension of the common law in relation to certiorari to courts and tribunals strictly defined. Part 50.2(1) UCPR defines "courts below" (in relation to precisely the sort of appeal that is here brought) as meaning: "the court in which, or the person or body by whom , the decision to which the appeal relates was made". 51 I note further that Rothman J in Garcia v Motor Accidents Authority of NSW [2009] NSWSC 1056 made an order in the nature of certiorari from a Proper Officer of the MAA who had made a decision under s 62(1) on the basis that s 69(3) provided the jurisdiction to do so - see at [22] and 44. I acknowledge that it does not appear that any argument about this issue was directed to him in that regard. 52 Similarly, Master Malpass in Wilkie v Motor Accidents Authority of NSW [2007] NSWSC 1086, Patten AJ in Jovica Trazavuk and Harrison AsJ in Chami v Motor Accidents Authority of NSW [2009] NSWSC 1358 had applications for judicial review based on s 69 that included error of law appearing on the face of the record (Wilkie at [15], Jovica Trazavuk at [34], Chami at [4]). Although in Wilkie and Trazavuk the applications were dismissed, the consideration of the matters proceeded on the basis that the Proper Officer in making a determination under s 62 was amenable to certiorari on the wider basis provided in s 69(3). In Chami certiorari quashed the Assessor's determination. 53 In my opinion, s 69(3) operates in relation to the decision of the Proper Officer of the MAA. I conclude, accordingly, that even if the emphasised portion in Craig operates on all of the listed errors (which I doubt) it is not an additional element in the present case which is being decided in a completely different legislative context from Craig: see also Hanna at [29]. 54 If I am wrong in my conclusion in relation to s 69(3) I consider that the error of the Proper Officer in asking the wrong question was such that in doing so she did not have the "authority" or "jurisdiction" as I have mentioned in para [36] above. That means that a jurisdictional error has been committed. (ii) Would the result have been different if the correct question was asked? 55 The Second Defendant says further that one has to examine whether the result would have been different if the correct question had been asked. The Second Defendant points to what was said in Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 384 as follows: "For an error of law to constitute a ground of review under s.5(1) of the AD(JR) Act it is necessary that "the decision [involve] an error of law": s.5(1)(f). For an error of law to be involved in a decision something more than the mere occurrence of error is necessary. The error must have contributed to the decision in some way or, at the very least, it must be impossible to say that it did not so contribute. Conversely, an error is not involved in a decision if it did not contribute to the decision or if the decision must have been the same regardless of the error. Thus, to show that an error of law is involved in a decision it is necessary, at the very least, to show that the decision may have been different if the error had not occurred." 56 The problem with that formulation for the Second Defendant is that all that the party alleging the error has to show is that the decision "may" have been different if the error had not occurred. To the extent that the matter is cast in the negative with any evidentiary onus on the party seeking to maintain the decision, that party has to show that it "must be impossible to say" that the error did not contribute or to show that the decision "must have been the same regardless of the error". 57 No doubt the test is formulated in such terms to avoid the necessity for a merits review if it is determined that an error of some sort has been made on the part of the decision maker. The Second Defendant says that one can test the matter by looking at the determination of the subsequent assessor, Dr Best. The Second Defendant says that one can do this because Mr De Gelder, having made a threat of action in this Court, allowed the assessment to proceed, and Dr Best's assessment was that the further information had such a bearing on the outcome that he assessed Mr De Gelder at less than 10%. 58 There appear to me to be a number of problems with this approach. First, the matter ought to be determined at the time the Proper Officer made her decision and not determined in the light of what emerged at the second assessment. This is really highlighted by a comparison of the reasons given by the Proper Officer with the conclusions of Dr Best. What the Proper Officer directed her attention to was the relevance of the other accidents on the issue of causation. Dr Best does not conclude that the other accidents were causally related to Mr De Gelder's injuries. Rather, he says that the nature of the injuries (particularly the wedging of T5 and T6) could not have been caused by the MVA because it was a rear end collision and that would tend to cause a hyperextension injury and not a compression injury to the thoracic spine. 59 Secondly, it cannot be relevant to the use of the outcome of Dr Best's assessment that the Plaintiff allowed that assessment to proceed. There was some evidence from Mr De Gelder's solicitor that if Mr De Gelder had not attended the assessment it was likely to have been carried out on the papers, and he relied in that regard on another matter of Goodman that he had been involved with. But even if the Second Defendant is suggesting that the assessment in one form or another only proceeded because of the failure of Mr De Gelder to follow through on his solicitor's threat of 4 December, it is difficult to see why that justifies the use of Dr Best's findings and determination to test the proposition from Bond about whether asking the correct question would have produced the same result. 60 The test in Bond is undemanding for the person identifying the error but is a test of the highest order for a person seeking to justify the decision maker's decision despite the error. Mr De Gelder submits that the onus is on the Second Defendant and draws attention to what was said in Stead v State Government Insurance Commission (1996) 161 CLR 141 and Re Refugee Review Tribunal and anor; ex parte Aala (2000) 176 ALR 219 at [80], [104], [133] and [211]. Mr De Gelder acknowledges that these decisions are concerned with the denial of natural justice but says that they similarly apply where an error such as the present is identified. 61 I am not convinced that those cases show that there is an onus in the first instance on the parties seeking to uphold the impugned decision. So, in Stead the joint judgment said (at 147): "All that the appellant needed to show was that the denial of natural justice deprived him of the possibility of a successful outcome. In order to negate that possibility, it was, as we have said, necessary for the Full Court to find that a properly conducted trial could not possibly have produced a different result." 62 In that case it seems to be suggested that, in the first instance, the person impugning the decision has at least the undemanding test of showing that he was deprived of a possibly different outcome. That seems to be the same approach when applying the passage from Bond. In my opinion, the Plaintiff has at least an evidentiary onus in the first instance in the present case of showing that the result may have been different if the correct question had been asked. Once that has happened, the Second Defendant is faced with the far more stringent test of showing, on an evidentiary onus only, that it was impossible to say that the wrong question did not contribute to the result or that the decision must have been the same regardless of the error. 63 The Second Defendant submits that there was ample material in the application made to the Proper Officer to come to the view that, even had she asked herself the correct question, the result must have been the same. In that regard, it is said, one is not confined to the reasons given by the Proper Officer that the additional information consisted of material about the previous accidents. The Second Defendant describes s 62 as a threshold or filter mechanism and draws attention to cases both on s 63(2) and (3) of MACA as well as on s 327 Workplace Injury Management and Workers Compensation Act 1998. 64 In Vegan both Handley JA at [8] and Basten JA at [133] discuss the test that was to be applied under s 327. They said that it was only necessary for the Registrar to consider that one ground of appeal existed to make the necessary referral. 65 In a similar way, in McKee s 63(3) of the MACA was said to be a filter mechanism and it would be enough for one basis to be established for the necessary review to be ordered. A similar approach to s 327 was adopted in Riverina Wines at [73] - [76]. 66 Care must be exercised in using cases on s 327 as being sufficiently analogous to the task under s 62 of MACA. For a start, s 327 sets outs a number of different grounds in relation to the basis for obtaining an appeal to the Appeal Panel. Master Malpass drew attention in Wilkie to the difficulty of applying by analogy the procedures in s 327 - see at [25], [44] and [50]. 67 Nor do I think it is completely straight forward to apply analogously the provisions embodied in s 63 with those in s 62. The wording of the provisions is different and, in particular, subs (3A) of 63 expressly provides that the review is to be by way of new assessment of "all the matters with which the medical assessment is concerned". There is no such provision in s 62 although subs (1A) was inserted into s 62 in the same amending Act as subs (3A) was inserted into s 63. Nevertheless, clause 14.12 of the Guidelines requires the further assessment to involve a consideration of all aspects. 68 While there may be some doubts, therefore, whether the further assessment under s 62 is to be an assessment in relation to all matters or whether it is to be confined to the original information together with the additional relevant information that justifies the further assessment, Giles JA in McKee placed importance on the word "matter" where it is used in Part 3.4 of the MACA. This led him to conclude that what was to be reviewed under s 63 was the whole medical assessment and not part of it - see at [24] - [27]. Allsop P took a similar position at [7]. Clause 14.12 of the Guidelines supports this approach. Since the term "matter" is the subject of the referral in s 62 it may be that a similar conclusion should be reached that it is the whole assessment which is to be reconsidered. However, although the Motor Accidents Compensation Amendment (Claims and Dispute Resolution) Act 2007 (which inserted s 62(1A) and s 63(3)) had been assented to on 13 December 2007, those sub-sections were not under consideration in McKee. 69 The MAA submits, correctly, that this was not an issue in the present proceedings. However, when the correctness of the Guidelines was argued Mr Canceri of counsel who appeared for Mr De Gelder sought to amend to argue that in the present case Dr Best ought not to have taken into account anything but the further material. Since no prior notice of this had been given to the other parties although I had flagged the issue on 17 November 2009 I took the view, particularly in the light of Aon Risk Services Australia Ltd v Australian National University (2009) HCA 27; (2009) 83 ALJR 951 that the amendment should not be allowed. 70 Even if what is contained in s 62(1A) is to be regarded as a filter mechanism it is not clear from the reasons given by the Proper Officer whether or not she viewed the provision in that way with the result that it was only necessary for her to find one reason that satisfied subs (1A) or whether her assessment of the information that she had for consideration resulted in her forming the view that that was the only basis upon which the sub-section was satisfied. Since clause 14.8 of the Guidelines provides that the Proper Office is to provide the parties "with brief written reasons for the decision" it is a reasonable inference that her opinion was formed solely on the basis of the information about the additional accidents. 71 Approaching the matter conceptually, it is not difficult to see that if the Proper Officer thought she only had to examine the additional information to gauge its effect on the application before her a different result may well have resulted than if she was giving consideration to whether the information may have had a material effect on the outcome of an assessment that had already been completed. She was required to test the additional information to see if it would alter something that had already taken place on the basis of a history, an examination of Mr De Gelder and an examination of documents then available to the assessor. 72 If the Proper Officer was only directing her attention to whether the additional material might have a material effect on her decision to refer for further medical assessment, the bar would be set lower. It is likely, indeed, that the test she would have applied in that regard would be in the nature of a prima facie case test. She did not have to weigh up the new material against the findings of Dr Graham. In effect, she only had to decide was there anything in the additional material that ought to be put into the mix. Her focus would not be on whether that material was capable of having a material effect as Guideline 14.6 identified, namely that the additional material was capable of altering the outcome of a dispute about permanent impairment from greater than 10% whole person impairment to not greater than 10% whole person impairment. Indeed, her decision would have been directed towards satisfaction of s 62(1)(a) rather than s 62(1A). 73 If the material before the Proper Officer concerning the earlier accidents is examined (and this does not mean that a merits review is being conducted - rather what is being tested is whether it is impossible to say that a different answer could have been reached if the right question was asked) it is possible that the Proper Officer - (a) would have noted that both Dr Graham and the Review Panel referred to the one accident where any part of Mr De Gelder's back was injured, (b) noted that nothing in the Second Defendant's application showed that injury was sustained by Mr De Gelder in the other 2 accidents, (c) taken the view that Dr Maxwell simply had a different opinion about compression fractures from rear end collisions bearing in mind that both Dr Graham and the Review Panel had all formed the view that Mr De Gelder's injuries had been caused by the MVA. It cannot be said that that was an irrational or illogical view and, that being so, it cannot be said that it is impossible to say that the Proper Officer's decision would have been the same even if she had asked herself the correct question. 74 Accordingly, even if the evidentiary onus remains at all times on the Plaintiff in relation to the Bond test, in my opinion the Plaintiff succeeds. If, on the other hand, there is an evidentiary onus on the Second Defendant (and I am inclined to think, as I have said, that once the Plaintiff has satisfied the undemanding test of "may" there is an evidentiary onus on the Second Defendant under the Bond test) the Second Defendant in the present case has entirely failed to satisfy it.

(b) Did the Proper Officer consider irrelevant material? 75 It seems clear from the brief reasons provided by the Proper Officer (para [11] above) that she regarded the additional relevant information as being the existence of several other accidents which she said had not previously been considered for causation of the spine injury. 76 In his application to the Proper Officer, the Second Defendant identified additional relevant information in 15 numbered items. Some, but by no means all, of those items concerned prior accidents. A number of the items were further medical reports and clinical notes. It may reasonably be inferred that the Proper Officer considered that, at least, the information about the prior accidents was additional relevant information. Mr De Gelder submits, however, that the information was irrelevant to the Proper Officer's task because it was not additional relevant information "about the injury". Rather, he submits that it was information about the accidents themselves. 77 It should in the first instance be said that it is not quite correct that there was no prior consideration for causation of other accidents. Dr Graham refers to a motor vehicle accident about 6 or 7 years causing neck pain which settled with time. The Review Panel appears to refer also to the same accident where Mr De Gelder suffered a whiplash injury to his neck. Nevertheless, the 3 accidents referred to, being those of 28 December 2000, 25 February 2002 and 23 August 2005 were either not referred to or no consideration was given to them except for the fact that there was a brief whiplash injury. It is hard to determine which of the 3 accidents was the one Dr Graham and the Review Panel referred to but, judging by the description in the Second Defendant's application under s 62, it was probably that of 25 February 2002. 78 Although there is minimal information about injuries from those 3 accidents reliance was also placed on a new report of Dr Maxwell who said that he had never seen a compression fracture of the thoracic spine caused by a rear end collision. It seems to me that that raises the consideration whether the nature of the other MVAs might have had a causal impact on the undoubted injury that Mr De Gelder demonstrated in the wedging of sections of his thoracic spine. 79 In Garcia v Motor Accidents Authority of NSW [2009] NSWSC 1056 at [38] Rothman J said: "… The term "additional information" … does include new information about an injury, even though it does not describe the injury or some other feature of the injury. An expert medical opinion as to the cause of injury is relevant evidence and is "about the injury". Further, to the extent that an opinion has not previously been expressed (by any expert) it results in the opinion being "additional information" not previously considered. In those circumstances, an opinion expressed by a medical expert, in circumstances where the Assessor had not previously received expert opinion of that kind, would be "additional relevant information about the injury". Such an opinion would satisfy one of the pre-conditions prescribed in s 62(1)(a) of the Act." 80 In my opinion, the evidence of Dr Maxwell of 22 September 2008 would be such evidence. It could not have been considered by the Review Panel. 81 Mr De Gelder says that this material was incapable of satisfying the test in subs (1A). He accepts that the appropriate test is that illogicality or irrationality must be established in accordance with what was said in Greyhound Racing Authority (NSW) v Bragg [2003] NSWCA 388 at [58] following the High Court's decision in Re Minister for Immigration and Multicultural Affairs; ex parte Applicant S20/ 2002 [2003] HCA 30; (2003) 198 ALR 59; (2003) 77 ALJR 1165. The Court of Appeal in Bragg identified that as the appropriate test rather than the conduct by the reviewing court of a merits review or the Wednesbury test. Mr Fitzsimmons for the Second Defendant says that there needs to be something on the face of the decision that is highly irrational or illogical. 82 In my opinion, it cannot be said, in the light of the material and information supplied to the Proper Officer, that her decision was irrational or illogical. 2 of the 3 accidents had never been referred to before. One of them did involve an injury to the neck, but what Dr Maxwell had to say about the nature of the collision involved in the MVA made the circumstances of the other accidents a relevant consideration in terms of the causation of the injury. 83 I reject Mr De Gelder's challenge to the decision based on this ground.

(c) Did the Proper Officer fail to consider relevant material? 84 The relevant material not considered is said to be the objects of the Act and the objects of MAS pursuant to clause 14.5.3 of the Guidelines. The particular aspect concerned what was said by Johnstone DCJ in Seary v White (No. 3) [2008] NSWDC 19. 85 In that case Johnstone DCJ was hearing an assessment of damages where the Plaintiff had been assessed as having a degree of permanent impairment greater than 10%. After some days of hearing the Defendant made an application that she be referred for reassessment as to the degree of permanent impairment suffered by her. Johnstone DCJ referred to a previous decision of his of Ragen v Nominal Defendant (No. 2) 4 DCLR (NSW) 227, [2007] NSWDC 85 and he said: "[4] … In that decision I concluded that the court has a clear and unfettered discretionary power, under s 62(1)(b) of the Motor Accidents Compensation Act 1999, to refer a matter for assessment, again, at any time."

[5] That matter involved an application by a plaintiff. In this application, however, I am required to consider the power in the context of an application by a defendant. In my view, the power is limited to a plaintiff who has not yet satisfied the threshold, and is not available at the instigation of a defendant. In that regard, s 131 of the Motor Accidents Compensation Act 1999 is a gatekeeper provision, and once a plaintiff has satisfied the threshold that plaintiff has an entitlement, except perhaps in exceptional circumstances such as fraud, to an award for non-economic loss, whatever occurs at trial. In other words, the threshold, once crossed, remains crossed. A plaintiff, however, is never precluded from crossing that threshold, and for the reasons I gave in Mafra v Egan (No 1) [2006] NSWDC 22 at [29], may do so at any time, even at the end of a trial, before the verdict is entered." (emphasis added) 86 Mr De Gelder says that the Proper Officer did not have proper regard to that decision because of its construction of the objects of the Act and the objects of the MAS. 87 I must say, with the greatest of respect to Johnstone DCJ, that I have some difficulties with his reasoning and approach. There is nothing in s 62 which expressly or impliedly distinguishes between applications made by plaintiffs and those made by defendants whether under subs (1)(a) or (b). Further, I see no indication that once a plaintiff has satisfied the threshold that exceptional circumstances such as fraud are needed before a further assessment can be ordered, whether by a court or otherwise. Such a suggestion seems contrary to the provisions of s 62(1) and also appears somewhat inconsistent with what is provided for s 63. 88 If Johnstone DCJ was intending that the remarks which I have emphasised in para [5] of his judgment were of equal applicability to an application for referral by a party to the medical dispute, they would appear to be inconsistent with what is contained in s 62(1A). 89 Mr Canceri, who appeared for Mr De Gelder, frankly conceded that he had difficulty reconciling what Johnstone DCJ said with the provisions of s 62. 90 It is sufficient for me to decide that I do not consider that the Proper Officer, in not following Johnstone DCJ's decision, erred by failing to have regard to the objects of the Act and the objects of MAS.

(d) Should the Proper Officer have sent Mr De Gelder back to Dr Graham? 91 Clause 14.10 of the Guidelines appears to give the Proper Officer a wide discretion at 2 points. First, the Proper Officer has a discretion to refer the dispute to the original assessor if that assessor is available within a reasonable period. Secondly, the Proper Officer then has a further discretion based on whether it is appropriate in the circumstances to refer the dispute to the original assessor. 92 The Second Defendant submitted that before this discretion could be interfered with there would need to be the sort of error that House v The King (1936) 55 CLR 499 mandated. Mr De Gelder accepts that the discretion is a very wide one and, quite properly draws attention to what Master Malpass said in Wilkie at [54] suggesting that discretion was a wide one. 93 However, Mr De Gelder submits that in making the decision to send him to a new assessor the Proper Officer took into account an irrelevant consideration. The irrelevant consideration is said to be what the subsequent Proper Officer said in her letter of 15 December 2008: "In circumstances where Assessor Graham is now privy to submissions made by the parties in relation to his original assessment, I am of the view that it is not appropriate for Assessor Graham to conduct a further assessment of this matter."

If that was an irrelevant consideration that may potentially be sufficient to warrant interference with the discretionary decision: Micallef v ICI Australia Operations Pty Ltd [2001] NSWCA 274 at [45]. 94 Although the reason given for the appointment of a new assessor might be thought to be somewhat sensitive about Dr Graham's feelings on his review of submissions made to the Review Panel, I do not think that it can be said that the discretion to refer the further assessment to a new assessor miscarried. One can readily see how a new assessor would be able to bring a more objective approach to the assessment based on all of the material then available than an assessor who had already formed a particular view and was being asked to say if further information would change that view. 95 I am somewhat strengthened in this view by the decision of Hoeben J in Goodman v Motor Accidents Authority of NSW [2009] NSWSC 875. That was a case also concerned with a referral by the Proper Officer to a different assessor for a further assessment. Although the complaint was put on different bases from the present (a breach of natural justice, and legitimate expectation) the issue to be determined ultimately was whether the discretion of the Proper Officer miscarried. Hoeben J found that it did not notwithstanding findings that, at the relevant time, the MAA had a practice, when a further assessment was granted, of trying to have the claimant examined by the same medical assessor as had first examined him. Hoeben J thought that the reasons for that approach were obvious and advantageous (see at [39]-[41]). No such evidence was led in the present case. 96 Like Hoeben J, even if I had found this ground proved, I would have refused relief on a discretionary ground. Even if the Proper Officer ought to have sent the matter back for reassessment to Dr Graham I do not consider that the Plaintiff had any right to a reassessment by Dr Graham. Even if the Proper Officer provided an unsatisfactory reason or a reason based on an irrelevant consideration, that would not itself have meant that the Proper Officer was wrong to refer it another assessor. Hoeben J talked about the dangers of "doctor shopping" and the need to avoid that happening. In a similar way, the Proper Officer's decision to refer the further assessment to a new and independent assessor so that a fresh mind could be brought to bear on the matter is neither beyond power nor self-evidently inappropriate. 97 This challenge by Mr De Gelder fails.

Discretionary factors 98 The Second Defendant says that even if Mr De Gelder is otherwise entitled to obtain an order quashing the Proper Officer's referral and the subsequent assessment, such an order should be refused on discretionary grounds. The only ground put forward is the failure to follow through on the threat contained in the letter of 4 December 2008 from Mr De Gelder's solicitors. The Second Defendant says that if the decision was to be challenged, it needed to be done promptly. Mr De Gelder wanted to leave his options open by going through the further assessment process to see how it turned out. When it was unfavourable to him he then brought the proceedings. 99 There is some support for this view in Master Malpass's decision in Wilkie where he said: "[27] It seems to me that these proceedings can be disposed of by having regard to discretionary considerations. The plaintiff stood by and allowed the further assessment to be made. She did not decide to take action in respect of her complaints until after she had received a result which brought about a substantial reduction in the assessment of the whole person impairment. By operation of statute, the Certificate of the second Assessor prevailed over its predecessor. She had an adequate alternative statutory remedy (by way of review to a Review Panel pursuant to s 63) to challenge the further assessment. Rather than pursue the statutory remedy, she has come to this Court. In the circumstances, I do not consider that the Court should exercise the discretionary power that it has in her favour (see, inter alia, Boral Gas (NSW) Pty Limited v Magill (1993) 32 NSWLR 501).

[28] The alternative statutory remedy was one that would have offered her quicker determination. It could have been brought immediately following the decision of the second Assessor and the review may have been concluded well before the bringing of these proceedings (there was in fact a delay of about five months before the plaintiff brought these proceedings). A remedy by way of judicial review may still have been available to her in the event that she was unhappy with a decision from the Review Panel." (emphasis added) 100 The position in the present case is somewhat different from that position. Although it might be said that Mr De Gelder stood by and allowed the further assessment to be made, when it was unfavourable to him he sought a review under s 63 but that application was rejected. 101 Further, Mr De Gelder's solicitor gave evidence and was cross-examined about why, when he had written the letter of 4 December, he did not follow it through until after the assessment had been made. The solicitor provided 2 reasons for this. The first was his experience in the matter of Goodman where the further assessment was conducted on the papers when the injured person did not attend. The second was an attempt to avoid unnecessary costs in commencing Supreme Court proceedings when there was a reasonable expectation that the further assessment would be favourable to the present Plaintiff. 102 It does not seem to me that the solicitor and Mr De Gedler acted unreasonably in attempting to minimise costs by awaiting the outcome of the further assessment. In a sense, they are supported by what Master Malpass said in the passages quoted, namely, that the injured person should have pursued the statutory remedy (a review under s 63) and, if that was unfavourable, to seek judicial review. 103 The solicitor said that at the time he wrote the letter of 4 December he intended to do what he said in the letter. He only changed his mind at a later time. I accept his evidence in this regard. 104 The Second Defendant's argument appeared to come down, in the end, to the delay occasioned by not bringing the proceedings for judicial review at an earlier time so that the matter would by now be finally determined, it was said. Bearing in mind that the letter threatening the proceedings was dated 4 December 2008, the further assessment was 30 January 2009 and the Summons was filed on 18 March 2009, it does not seem to me that there is a delay of any magnitude, nor a delay that has prejudiced the Second Defendant in any substantive way.

Conclusion 105 Mr De Gelder has established that the Proper Officer asked herself the wrong question and that if the right question had been asked the result may have been different. She was probably led into error by the Guidelines and in particular clause 14.7. Because it is not possible to say that her decision would not have been different had she asked herself the correct question the error is of some significance. Mr De Gelder is entitled to have the matter considered properly because being shut out from obtaining damages for non-economic loss is a significant matter. I do not consider that there are any discretionary matters which should preclude the orders sought being made. The result is that the decision of the Proper Officer of 28 November 2008 and the referral to Dr Best on 2 December 2008 together with Dr Best's Certificate must be quashed. 106 I therefore make the following orders:

(1) An order in the nature of certiorari removing into the Court the determination of the Proper Officer made 28 November 2008 in Matter No 2008/04/3297 and quashing that determination.

(2) An order in the nature of certiorari removing into the Court the determination of the Proper Officer made 2 December 2008 in Matter No. 2008/04/3297 and quashing that determination.

(3) An Order that the further Certificate issued on 30 January 2009 in 2008/04/3297 be quashed.

(4) The matter be remitted to the First Defendant to be determined in accordance with the reasons of the Court and according to law.

(5) The Second Defendant is to pay the Plaintiff's costs of the proceedings.

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