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.