Dimos v Gordian Runoff Limited - [2023] NSWSC 1151 - NSWSC 2023 case summary — Zoe

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Dimos v Gordian Runoff Limited

[2023] NSWSC 1151

Supreme Court of NSW|2023-08-10|Before: Schmidt AJ, Mr J, Ms J

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At a glance

Source facts

Court

Supreme Court of NSW

Decision date

2023-08-10

Before

Schmidt AJ, Mr J, Ms J

Catchwords

[2009] HCA 41 Avon Downs Pty Ltd v The Federal Commissioner of Taxation (1949) 78 CLR 353
[1949] HCA 26 Buck v Bavone (1976) 135 CLR 110
[1996] HCA 6 Minister for Immigration and Multicultural and Indigenous Affairs v SGLB [2004] HCA 32
(2004) 78 ALJR 992 MZAPC v Minister for Immigration and Border Protection (2021) 273 CLR 506

Source

Original judgment source is linked above.

Catchwords

[2009] HCA 41 Avon Downs Pty Ltd v The Federal Commissioner of Taxation (1949) 78 CLR 353[1949] HCA 26 Buck v Bavone (1976) 135 CLR 110[1996] HCA 6 Minister for Immigration and Multicultural and Indigenous Affairs v SGLB [2004] HCA 32(2004) 78 ALJR 992 MZAPC v Minister for Immigration and Border Protection (2021) 273 CLR 506[2021] HCA 17 Pinarbasi v AAI Ltd t/as GIO [2023] NSWSC 80 Public Service Board of NSW v Osmond (1986) 159 CLR 656[1986] HCA 7 QBE Insurance (Australia) Ltd v Miller [2013] NSWCA 442 SAS Trustee Corporation v Miles (2018) 265 CLR 137[2018] HCA 55 Sleiman v Gadalla Pty Ltd [2021] NSWCA 236 Wingfoot Australia Partners Pty Ltd v Kocak (2013) 252 CLR 480

Judgment (33 paragraphs)

[1]

of NSW v Osmond (1986) 159 CLR 656; [1986] HCA 7 QBE Insurance (Australia) Ltd v Miller [2013] NSWCA 442 SAS Trustee Corporation v Miles (2018) 265 CLR 137; [2018] HCA 55 Sleiman v Gadalla Pty Ltd [2021] NSWCA 236 Wingfoot Australia Partners Pty Ltd v Kocak (2013) 252 CLR 480; [2013] HCA 43 Texts Cited: New South Wales Legislative Assembly, Parliamentary Debates (Hansard), Personal Injury Commission Bill 2020 (NSW) Second Reading Speech, 3 June 2020 Category: Principal judgment Parties: Ms Effie Dimos (Plaintiff) Gordian Runoff Limited (First Defendant) Personal Injury Commission (Second Defendant) Representation: Counsel: Mr G Parker SC with Mr J de Greenlaw (Plaintiff) Ms J Gumbert with Mr J Isackson (First Defendant) Mr J Emmett SC with Ms B Lambourne (Second Defendant)

[5]

Issues

There was no issue between the parties about the principles applicable to the statutory construction questions which arise. There is also no issue that: 1. It must be borne in mind that the President's s 62 function under the 1999 Act is a gatekeeper or gateway function for filtering applications for further assessment, the President's power to refer a matter for further assessment being limited to where the claimed deterioration of an injury or additional relevant information about the injury is found "to be capable of having a material effect on the outcome of the previous assessment". 2. The exercise of the s 62 function is reviewable on an application such as this, brought under s 69 of the Supreme Court Act: QBE Insurance (Australia) Ltd v Miller [2013] NSWCA 442 at [5]. 3. Section 62 of the 1999 Act confers a residual discretion on the President about whether a matter will again be referred for assessment, which may not be overlooked because the discretion must be exercised according to law: Jubb v Insurance Australia Ltd [2016] NSWCA 153 at [36]. 4. This discretion is thus not unconstrained, but must be exercised in accordance with the subject matter, scope and purpose of the 1999 Act. 5. The critical question on an application such as this is whether the delegate's "determination was irrational, illogical and not based on findings or inferences of fact supported by logical grounds": Minister for Immigration and Multicultural and Indigenous Affairs v SGLB [2004] HCA 32; (2004) 78 ALJR 992 at [38]. 6. What arises to be considered is thus not whether the delegate's conclusions that the 2014 medical records on which the insurer relied contained additional information capable of having a material effect on the outcome of the previous assessment were properly formed according to law: Buck v Bavone (1976) 135 CLR 110; [1976] HCA 24 at 118-119. 7. This Court's determination of what lies in issue between the parties does not depend on whether the delegate's decision was right or wrong, but rather on whether it was vitiated by reviewable error: AAI Ltd t/as AAMI v Chan [2021] NSWCA 19 at [69]. Such error may include a factual finding for which there is no evidentiary basis. 8. Whether additional relevant information relied on in a s 62 application is capable of having a material effect on the outcome of a previous assessment, depends on the reasons for the previous assessment and the nature of the additional information. But merely making a wrong finding of fact in relation to the application is not an error of law: Chan at [70]-[71]. 9. For an error to be jurisdictional, it must be material, affecting the valid exercise of the power, so that ordinarily breach of an express or implied condition of a statutory conferral of decision-making, "cannot be material unless compliance with the condition could have resulted in the making of a different decision": Hossain v Minister for Immigration and Border Protection (2018) 264 CLR 123; [2018] HCA 34 at [31]. 10. In the case of procedural irregularity, what must be determined is whether the result in fact arrived at by the decision-maker could realistically have been different, had that irregularity not occurred: MZAPC v Minister for Immigration and Border Protection (2021) 273 CLR 506; [2021] HCA 17 at [51]. 11. Even if there was no longer an obligation to give reasons for a s 62 decision, the absence of that requirement does not preclude the judicial review here sought: Avon Downs Pty Ltd v The Federal Commissioner of Taxation (1949) 78 CLR 353; [1949] HCA 26 at 360. 12. If there was an obligation to give reasons, those which are given are not to be construed minutely and finely, with an eye keenly attuned to the perception of error: Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259; [1996] HCA 6 at 272. But given the delegate's failure to provide any explanation for why the discretion to refer was exercised, despite the case Ms Dimos had advanced, that the reasons given were not adequate, if they had to be given, was accepted. 13. It was also agreed that even if there was no requirement to give reasons, when reasons are given, they may still reveal an error of law.
What was in issue included whether: 1. the summons failed to comply with subr 59.4(c) of the Uniform Civil Procedure Rules 2005 (NSW), which requires that it with specificity, identify the grounds on which the relief is sought. The insurer contending that it did not state with the required specificity the alleged error of law on the face of the record, or the jurisdictional error which Ms Dimos pursues; 2. the delegate was obliged to give reasons for the decision to make the s 62 referral, given the proper construction of the transitional provisions of the 2020 Act; 3. the information contained in the disputed 2014 records was additional to that considered by Dr Parmegiani; 4. there was any factual foundation for conclusions the delegate arrived at; 5. the delegate had erred in law, including in relation to the exercise of the s 62 discretion, having not engaged with the case Ms Dimos had advanced in her submissions, with which the insurer had not joined issue; and 6. whether Ms Dimos' application should be refused on discretionary grounds.

[6]

Did the summons fail to comply with the requirements of the Rules?

I am satisfied that Ms Dimos' summons did not fail to comply with the applicable Rules.
The grounds advanced in the summons were: "1. The President erred in his conclusion that the clinical notes of Ms Lambos were: (i) additional relevant information; (ii) capable of having a material effect on the previous assessment. 2. The President erred in his conclusion that the information in the clinical notes of Ms Lambos was additional relevant information about "the injury". 3. The President having formed the opinion or state of satisfaction required by s.62(1A) failed to take into account and exercise the residual discretion given by s.62(1) of the MAC Act namely to determine whether to refer the matter for further assessment. 4. Further, in so far as the President exercised the residual discretion, he failed: (I) properly to address the plaintiff's argument for the exercise of his discretion; (II) to give adequate reasons for the exercise of his discretion."
The insurer's case was that the summons had thus not identified, in the necessary way, Ms Dimos' reliance on the transitional provisions of the 2020 Act. I am satisfied that this cannot be accepted.
The summons disclosed that Ms Dimos contended that adequate reasons had not been given by the delegate for her decision. It was the insurer's submissions that advanced the argument that after the enactment of the 2020 Act, there was no longer an obligation imposed on the delegate to give reasons for a s 62 decision, as there had been under the former regulatory regime.
Understandably, it was thus in Ms Dimos' reply submissions that she contended that the delegate did have an obligation to give reasons, given the operation of the transitional provisions of the 2020 Act and the basis of the s 62 application which the insurer had pursued.
Those submissions were admittedly served late. But they were met at the hearing with the arguments which the insurer developed about the construction of the statutory scheme which ultimately led to the withdrawal of the President's submitting appearance, as I have explained. The parties then had a further opportunity to address the requirements of the transitional provisions.
I am satisfied that while not ideal, those developments cannot justly lead to the conclusion that Ms Dimos' summons was inadequate, or that it failed to comply with the applicable rule. That would be a remarkable triumph of form over substance.
Justice plainly requires that what was raised by the summons in relation to the obligation to give reasons, inadequate as they were if required, be determined. That turns on the proper operation of the transitional provisions of the 2020 Act, which the parties have had a fair opportunity to address. That is underscored by the case which the President appeared to advance.
The submissions which the insurer finally advanced included that Ms Dimos had not asserted before the delegate that cl 14D of Sch 1 to the 2020 Act applied, or that its factual preconditions were satisfied. Nothing can turn on this.
If cl 14D applied to the insurer's application the delegate was obliged to give reasons for the decision arrived at. That did not depend on Ms Dimos raising the operation of that clause or the need to give reasons for decision. That the Commission's universal practice was to decide all applications made after the 2020 Act came into operation in accordance with the new regime, cannot sensibly have been known by either party, involving as that did a departure from the requirements of the transitional provisions.
If the delegate acted in accordance with that practice, reasons for her decision were nevertheless given. If they were inadequate, that is not an error for which Ms Dimos was responsible.

[7]

What is the proper construction of the statutory scheme?

By the time that the insurer made its s 62 application in 2022, the 2020 Act had been enacted and the Personal Injury Commission Rules 2021 (NSW) made and come into force.
Whether the insurer's 2022 s 62 application had to be considered under the new regime established by the 2020 Act or the former statutory arrangements depended on the transitional provisions of the 2020 Act. There in Sch 1 Savings, transitional and other provisions, amongst other things, "unexercised rights" to commence non-court applications are regulated.
There is no issue that they may include the right to make a s 62 application: cl 14D, Sch 1 of the 2020 Act. But the operation of those provisions was in issue. Previously, reasons for decisions in respect of s 62 applications needed to be given, that formerly being required by the then applicable State Insurance Regulatory Authority Medical Assessment Guidelines.
Neither the 2020 Act nor the now applicable rules impose an obligation on the President to give reasons for a decision made under s 62 of the 1999 Act. Nor does the 1999 Act itself. While such an obligation may be implied in certain circumstances, that was not advanced by any of the parties.
To the contrary the insurer contended that under the 2020 Act s 62 applications which do not concern unexercised rights are akin to those which were considered in Pinarbasi v AAI Ltd t/as GIO [2023] NSWSC 80. There the operation of another administrative gateway function under the Motor Accidents Injuries Act 2017 (NSW) arose to be considered.
In Pinarbasi I concluded that gateway function, which also did not include an obligation to give reasons, did not have a judicial character, that generally involving a determination of legal rights and duties, rather than the decision-maker's state of mind. Further, that this function did not require the correctness of the medical assessment sought to be reviewed to be determined; nor did it otherwise determine ultimate rights or liabilities; and it also did not attract any appeal rights, alleged error having to be pursued by way of judicial review application. This all pointing to an obligation to give reasons not there being able to be implied as a part of the administrative function there in issue: at [26]-[31].
Whether the same conclusion is available under the 2020 Act does not arise to be determined. But what occurred in this case, it should be observed, does underscore how undesirable, in practice, such a system can be.

[8]

The parties' cases

At the hearing Ms Dimos contended that the insurer's s 62 application fell within the transitional provisions of the 2020 Act because it concerned an unexercised right, with the result that the delegate was obliged to give reasons. That being the requirement under the Medical Assessment Guidelines formerly imposed by SIRA under the 1999 Act, before the 2020 Act was enacted and it continuing to apply as the result of cl 14D of Sch 1 to that Act.
There is no issue that those Guidelines did require reasons to be given when the s 62 function was exercised before the 2020 Act came into operation.
The insurer's case altered during the course of the submissions it advanced at the hearing, leading the President later to distil the three constructions which had been advanced by the parties, including that which the insurer withdrew, to have been: "(a) First, the right in s 62 is an 'unexercised right' to refer a matter for further medical review that is "available to be exercised" once a medical certificate has been issued under s 61… (b) Second, the word 'may' in cl 14D is to be construed permissively such that cl 14D only applies if the moving party chooses to make an application for an exercise of a function as an 'unexercised right'… (c) Third, the right in s 62 is only 'available to be exercised' in circumstances where the facts underlying an application for referral existed prior to 1 March 2021 and those facts were 'available' to the party".
While all these constructions were difficult, the President submitted that the third accorded most closely with the text, context and purpose of the legislative regime. It was thus contended that an "unexercised right" is one where the facts underlying the application existed before 1 March 2021 and were "available" to the party making the application.
In its reply to these submissions, the insurer adopted the President's submissions, noting that the President considered that whilst "attended by 'practical difficulties'" this construction was not "wholly unworkable". Thereby it also abandoned the second construction it had earlier advanced, which I am satisfied does not reflect the proper operation of the statutory scheme.
Indeed, nothing in that scheme accords with a legislative intention that a party be given a choice about whether the requirements of the former scheme continue to apply to an unexercised right. Given that this argument was abandoned, it is unnecessary to further explain why that conclusion necessarily had to be arrived at.
The result was that the parties were finally not far apart on the proper operation of the statutory scheme. Ms Dimos' further submissions further addressing the defined terms, particularly the meaning of the word "available" there used and the operation of cl 14D.

[10]

Section 62 of the 1999 Act

The 1999 Act is concerned with injuries caused by a motor accident occurring after its commencement: subs 43(1). Medical assessment is dealt with in Pt 3.4. It applies to disagreements about specified matters between a claimant and insurer, including about whether the degree of permanent impairment of a person as a result of injury caused by the motor accident is greater than 10%: subs 58(1)(d).
Such medical disputes can be referred for assessment: s 60. The assessor to whom the dispute is referred must provide a certificate which provides conclusive evidence as to the matters certified: s 61. An application for review of such a certificate may be made and granted on the grounds that the assessment was incorrect in a material respect: s 63.
It is s 62 which permits an application for further assessment to be made and granted. It provides: 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 (b) by a court or the President. (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 President. (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.
So far as parties to a medical dispute are concerned, the right they are given by s 62 to seek referral of a matter for further assessment is thus limited to two grounds. Either that the injury has deteriorated, or that there is "additional relevant information" about the injury. In either case there may only be a further referral made if the applicant has also established that the deterioration or information is "capable of having a material effect on the outcome of the previous assessment": (1A).

[12]

The statutory scheme

The transitional provisions to the 2020 Act deal with various matters consequent on its enactment: Sch 1, Pt 2. In Div 4A, with completion of "existing proceedings".
A consideration of the proper operation of the transitional provisions has to be approached in their statutory context and must be undertaken in light of the purpose of this statutory scheme. Pertinently, its objects are specified in s 3 to include: 1. establishing the Commission to deal with certain matters under the workers compensation and motor accidents legislation; 2. ensuring that it: (i) is accessible, professional and responsive to the needs of all of its users, and (ii) is open and transparent about its processes, and (iii) encourages early dispute resolution; 1. enabling it to resolve the real issues in proceedings justly, quickly, cost effectively and with as little formality as possible; 2. ensuring that its decisions are timely, fair, consistent and of a high quality; and 3. promoting public confidence in its decision-making and the conduct of its members.
Where statutory text, read in context, permits of more than one potential meaning the choice between those meanings may turn on an evaluation of the relative coherence of each with the scheme of the statute and its identified objects or policies: SAS Trustee Corporation v Miles (2018) 265 CLR 137; [2018] HCA 55 at [20]. Thus the operation of the schedule as a whole, intended as it plainly was to ensure the ongoing smooth operation of the various statutory schemes for which the Commission is made responsible by the 2020 Act, may not be overlooked.
Accordingly, it is pertinent to note that Pt 2 of Sch 1 also deals with the abolition of various bodies, offices and dispute resolution services in Div 2; with the transfer of members of former bodies to the Commission in Div 3; with transfer of certain officers, medical assessors, merit reviewers and mediators in Div 4; with completion of "existing proceedings" in Div 4A; with certain pending matters in Div 4B; and various miscellaneous matters in Div 5.
In Div 4A pending proceedings are dealt with in Subdiv 2; unexercised rights concerning proceedings in Subdiv 3; review of completed pre-establishment proceedings in Subdiv 4; and allocation of transitional proceedings and enforcement of existing orders in Subdiv 5.
In Subdiv 3 unexercised rights to commence non-court proceedings are dealt with in cl 14D, unexercised rights to commence court proceedings in cl 14E and pending proceedings, both court and non-court, in cll 14B and 14C. There was no issue that a s 62 application involves non-court proceedings.
"Proceedings" is defined in Div 4A to include "an application for, or an appeal against, the exercise of a function": cl 14A. There was also no issue that includes the exercise of the s 62 function.
The term "existing proceedings", with which Div 4A is concerned is not, however, defined. Despite this it is apparent from its terms that Div 4A is intended to have temporary, rather than permanent effect. Its work will plainly one day be done. That is, when all "existing proceedings" are completed.
Both logically and consistently with the various provisions of Div 4A and the terms which are there defined, that term does not encompass new claims made only after the 2020 Act came into operation, with which the transitional provisions are not concerned. Thus "pending proceedings" are defined in cl 14A, for example, to mean proceedings that were commenced before the establishment day and had not been finally determined before that day.

[14]

Clause 14D

The proper construction of cl 14D, which regulates unexercised non-court applications, must also be considered. It appears in Subdiv 3, Unexercised rights of Div 4A.
It should be noted that s 62 proceedings are expressly there referred to, in Subdiv 4, cl 14F dealing with certain completed pre-establishment proceedings. Clause 14F provides: 14F New law to apply to certain matters (1) This clause applies to the following proceedings (completed pre-establishment proceedings) - (a) pending proceedings completed under Subdivision 2, (b) proceedings commenced and completed under Subdivision 3. (2) The new review provisions, if any, apply in relation to a decision of a new decision-maker in completed pre-establishment proceedings instead of the old legislation. (3) The new review provisions are the provisions of the new legislation applicable to appeals against or reviews of decisions of new decision-makers that correspond, or substantially correspond, to provisions of the old legislation for decisions of the same kind. (4) Without limiting subclause (2) - (a) section 7.24 of the Motor Accident Injuries Act 2017, as in force on or after the establishment day, extends to a medical assessment completed before the establishment day or under Subdivision 2 or 3, and (b) section 62 of the Motor Accidents Compensation Act 1999, as in force on or after the establishment day, extends to a medical assessment completed before the establishment day or under Subdivision 2 or 3. (5) In this clause - new legislation means this Act and statutory rules under this Act, the motor accidents legislation and the workers compensation legislation, as in force on or after the establishment day. old legislation means the motor accidents legislation and workers compensation legislation, as in force immediately before the establishment day.
"Pre-establishment proceedings" are defined in cl 14A to be proceedings which were required or permitted under the motor accidents legislation, defined in s 5 to include the 1999 Act, to be dealt with by specified bodies or officers. They include not only the proper officer of the Authority designated under that Act, but also a medical assessor or review panel appointed under it: (iv) and (v) of the definition.
In this case, because Dr Parmegiani's 2018 assessment of the dispute over Ms Dimos' claim was neither a pending proceeding completed under the 2020 Act, nor proceedings commenced and completed under that Act, cl 14F did not apply to the insurer's s 62 application and it thus had no work to do in this case. It would have been otherwise had the medical assessment been either a pending proceeding, or completed after the 2020 Act came into operation: subcl 14F(1).
The result was that the insurer's s 62 application was regulated by cl 14D. It relevantly provides: 14D Unexercised rights to commence non-court proceedings (1) This clause applies in relation to an unexercised right to commence pre-establishment proceedings before an original decision-maker other than a court. (2) A person who has the unexercised right to commence proceedings may commence the proceedings with the new decision-maker for the exercise of the same functions that could have been exercised by the original decision-maker to which the right relates. (3) The following provisions apply to the commencement of proceedings under this clause - (a) the new decision-maker has and may exercise all the functions that the original decision-maker would have had in relation to the proceedings if they had been commenced before the establishment day, including any functions relating to the granting of leave or other permission to commence proceedings, (b) the provisions of any Act, statutory rule or other law, including provisions concerning the time within which to commence the proceedings, that would have applied to or in respect of the determination of the proceedings had this Act not been enacted continue to apply …
There is no issue that this clause, understood as it must be in light of the defined terms there used, applies to unexercised rights under s 62 of the 1999 Act. "Pre-establishment proceedings" being broadly defined in cl 14A to include proceedings which were required or permitted under the 1999 Act to be dealt with by the proper officer of the Authority, who formerly had the function of dealing with s 62 applications: (ii).
It follows that when an unexercised right to make a s 62 application is made to the new decision-maker, the President, the application must be determined under the pre-existing regime. The result was that in Ms Dimos' case the President's delegate had to deal with the insurer's application under the prior regime: subcl 14D(3)(b).
It is also pertinent to note that the former regime also applies to circumstances where the right to pursue a non-court application has been exercised, but the resulting proceedings were not determined before the establishment date. That is regulated by cl 14B, which relevantly mirrors cl 14D. Such proceedings must also be resolved by application of the pre-existing regime: subcl 14B(4).
This plainly accords with the legislative intention of preserving existing substantive rights. That is given practical force by both cl 14B and cl 14D. It must be accepted, however, that this can give rise to practical difficulties of the kind to which the President pointed.
In the case of a s 62 application, for example, there may in some cases be a dispute about whether cl 14D applies. That depends on the existence of either a deterioration in the injury or additional relevant information before the establishment date. In the event of dispute, that will be a matter for the President to determine, that affecting as it does the regime under which the application must be decided.
The resolution of such a dispute is necessarily separate from the determination of the s 62 application itself. It also requiring the applicant to establish that the deterioration or additional information is "capable of having a material effect on the outcome of the previous assessment".
In this case, finally only in these proceedings, it was common ground between the parties that the records on which the insurer relied were not 2022 records, as its application advanced, but 2014 records which neither party had put before Dr Parmegiani. There was no issue about their relevance. But as I have explained, that they contained additional information was in issue. As was the question of whether they were capable of having a material effect on the outcome of his assessment. Both had to be resolved by the delegate, the first in order to establish which regime had to be applied to the resolution of the application.
As the President also observed, these transitional provisions may potentially have work to do in other situations. For example, where an appeal under s 327 of the Workplace Injury Management and Workers Compensation Act 1998 (NSW) was advanced on the additional relevant information ground there provided, in respect of information which came into existence before the 2020 Act came into operation.
But that does not detract from the conclusions I have reached about the proper construction of cl 14D. This possibility merely reflects that the clause potentially has work to do in a number of statutory situations, as the transitional provisions contemplate.

[15]

The insurer's application concerned unexercised rights

The President contended, by parity of reasoning with what was decided in Sleiman v Gadalla Pty Ltd [2021] NSWCA 236 in respect of an appeal under s 327 of the Workplace Injury Management and Workers Compensation Act, that the insurer's application was an unexercised right, the certificate issued by Dr Paremegiani being conclusively presumed to be correct as to the degree of Ms Dimos' permanent impairment and its application being pursued on the grounds specified in s 62: at [9].
The President also contended that a right was not available to be exercised until all preconditions for the exercise of the right existed: Joseph v NSW Commissioner of Police [2017] NSWCA 31 at [5]-[6], where the transitional provisions in the Civil and Administrative Tribunal Act 2013 (NSW) which contained a similar definition of "unexercised right" arose to be considered.
The insurer supported these submissions.
I am satisfied that as was also Ms Dimos' case, it must be accepted that the insurer's s 62 application fell within the definition of "unexercised rights". That is because: 1. it was agreed at the hearing that the disputed 2014 clinical records had been in the insurer's hands since 2018, even before the 2020 assessment of the parties' medical dispute; 2. its s 62 application had thus been available to be made before the establishment day, despite the insurer not having put the information which those records contained before the assessor, as it could have; and 3. its application was only made in 2022, after the 2020 Act came into operation.
Why the insurer did not rely on the 2014 records either on the assessment or its unsuccessful review application, both of which were dealt with before the 2020 Act came into operation, has not been explained. Logically, it would be inferred that this was the result of forensic decisions it had made. But that was resisted by the insurer in circumstances where there had been a change of solicitor. While there was no evidence led about this, it was argued that the failure to put the 2014 records before Dr Parmegiani could thus have been the result of error or oversight.
It is unnecessary to resolve this.
The finally undisputed facts leave no doubt that the insurer's s 62 application, which is not limited by time, was available to be made before the establishment day. This means that its 2022 application concerned an unexercised right to commence pre-establishment proceedings, as those terms are defined, albeit there was a dispute about whether the 2014 records did contain additional information, which it had to establish.
Had the information contained in the 2014 records only come into existence after the establishment date, as the insurer's s 62 application incorrectly conveyed when it described them to be 2022 documents, its right to make the s 62 application would not have been an "unexercised right". That is because no basis for making that application in respect of such additional information could then have existed before the establishment date.

[16]

The s 62 application could have misled the delegate

Before it made its s 62 application, the insurer unsuccessfully pursued an application for review of Ms Dimos' medical assessment. Thereby it sought to challenge Dr Parmegiani's conclusions about some of the impairment categories he had addressed. It also claimed that he had failed to provide evidence of any significant psychiatric illness or causal link between Ms Dimos' alleged illness and her involvement in the accident.
Given Dr Paremegiani's careful reasons, it is not surprising that this application failed. In her July 2020 determination the President's first delegate was not satisfied that there was reasonable cause to suspect that his diagnosis was incorrect in a material respect.
There is no issue between the parties that as a result, they are bound by the assessor's certificate: s 61 of the 1999 Act. Unless a further certificate is issued, it is conclusive evidence as to the matters Dr Parmegiani certified in any court proceedings, including these, or in any assessment by the Commission in respect of the claim concerned: subs 61(2).
That is no doubt why the insurer pursued its s 62 application for further assessment.
It was only as the result of the way in which the hearing of these proceedings unfolded, however, that it emerged that the insurer's s 62 application could have misled the delegate, inaccurate as it was in a material respect.
The application was made on the basis of various claimed "additional relevant information". It was only the 2014 clinical records of Dr Lambos, the psychologist Ms Dimos had consulted before the 2015 accident, at a time when she was experiencing workplace stress, on which the insurer relied in these proceedings. What the insurer had not disclosed in its s 62 application was that those records had been in its hands since 2018.
The online s 62 application incorrectly described those records to be 2022 documents. The insurer's accompanying submissions explained why it contended that they were relevant, additional and capable of having the required material effect on the previous assessment, having not been put before Dr Parmegiani. But they did not disclose that they were then in its hands, but had not been relied on. Nor did the submissions address why the discretion to make the referral should be exercised, despite that also arising to be determined on a s 62 application: Jubb.
The application was opposed by Ms Dimos. Her submissions explained not only why she contended that they were 2014 records which did not contain information additional to that which Dr Paremgiani had considered and were not capable of having a material effect on the outcome of that previous assessment, but also why the discretion to refer could not justly be exercised in all the circumstances which arose to be considered.
The insurer did not respond to those submissions.

[18]

The submissions on its s 62 application

What the insurer advanced in its submissions was that in his reasons Dr Parmegiani had noted that Ms Dimos had no personal history of psychiatric illness before the accident; that he had concluded that he was unable to elicit other factors that might be contributing to her current psychiatric condition; and that therefore, the motor accident was the most substantial causative factor.
It was submitted that the records reflected that Ms Dimos had consulted Dr Lambos between April and May 2014 for the workplace stress and disturbed sleep she was then experiencing; that she had then pursued stress reduction strategies; and that she had had four sessions with Dr Lambos to address her anxiety, low mood, critical self talk and excessive worry.
Further, that contrary to Dr Parmegiani's 2018 conclusions, Ms Dimos had suffered a generalised anxiety disorder before her 2015 accident, which had continued after that accident. Dr Lambos' 2014 records were submitted to support the conclusion that she did suffer such a condition, as did various leave which Ms Dimos had taken from her work at that time.
The insurer also submitted that Ms Dimos' post-accident complaints accorded with those she had experienced beforehand, including headaches and poor sleep. Further, that Dr Lambos' records not having been put before Dr Parmegiani helped to establish that the debilitating headaches which she suffered after the accident, were not related to it.
The insurer thus contended that the records contained new information relevant to the issue of Ms Dimos' pre-existing psychiatric condition and that they also affected each impairment category which had to be assessed. Further, that they were capable of having a material effect on the outcome of the assessment, because they established that she had suffered from a pre-accident psychiatric condition.
This was disputed by the submissions which Ms Dimos advanced. Her case was that some of the documents the insurer relied on were before the assessor and that all of the relevant issues the insurer advanced were raised or referred to in the medical material put before him, even if particular documents the insurer sought to advance by its application had not been.
Ms Dimos contended that it followed that there was no additional relevant information about the injury included in the application and that the documents relied on were incapable of having a material effect on the outcome of the assessment, the matters they raised having already been considered by the assessor. This was submitted also to have been demonstrated by the insurer's reliance on the same submissions which had already failed on its earlier review application.
It was also submitted that the discretion to refuse the application, which had not been addressed in the insurer's submissions, should be exercised on the basis of public policy and delay. The assessor's decision had been issued some two and a half years previously and the material sought to be relied on had been in the insurer's possession for years. That also gave rise to the need to consider whether the application was vexatious or had involved a lack of due diligence: Chan at [30].
Refusal of the application was argued also to accord with the objects of the statutory scheme and of the guidelines, which included the provision of a timely and cost-effective system for assessment of medical disputes. Ms Dimos' accident had occurred in 2015, it had been assessed in 2020 and the insurer had then waited some further years before making this application, its intervening review application having failed and there being no explanation advanced for its delay.
That had to be considered in circumstances where it would now have a forensic advantage, given the intervening retirement of Dr Westmore, the expert on whom Ms Dimos had relied.
A claim which had so belatedly been raised that Ms Dimos' post-accident psychological impairment had been contributed to by pre-accident work related stress which had not resulted in diagnosis of any psychiatric condition, also had to be considered in the context of the psychiatric experts whose reports the assessor had considered. They had dealt with her history before the accident; had considered that she had recovered from a workplace stressor and concluded that the impairment she had suffered had resulted from the 2015 accident.
Despite the insurer not joining issue with these submissions, its referral application was granted. On Ms Dimos' case this reflected that the delegate had simply failed to engage which the case which she had advanced.

[19]

The delegate's reasons

The short reasons which the delegate gave for granting the insurer's application are consistent with her not appreciating that the 2014 records had been wrongly described to be 2022 documents and that she had not observed that the treatment Ms Dimos had pursued in 2014 had been considered by Dr Parmegiaini.
The delegate was rather satisfied that the 2014 records contained additional relevant information capable of having a material effect on the outcome of the previous assessment and that the discretion to refer should be exercised. The reasons given under the heading "Findings" were: "5. I am satisfied that the clinical notes of Chris Lambos, treating psychologist, are additional relevant information about the injury and that the additional relevant information is such as to be capable of having a material effect on the outcome of the previous assessment. 6. The clinical notes were not before the Assessor. They indicate that the claimant consulted with Mr Labmos prior to the accident and was diagnosed with work related stress and generalised anxiety. 7. The Assessor notes at page 2 of the Certificate that the claimant "reported that she had no personal history of psychiatric illness prior to the accident…". 8. At page 9 of the Certificate, in giving reason in relation to causation, the Assessor states: I was unable to elicit other factors that might be contributing to her current psychiatric condition, and it is therefore my conclusion that the subject motor vehicle accident was the most substantial causal factor for that condition. 9. I am satisfied that there is additional relevant information or deterioration of the injury such as to be capable of having a material effect on the outcome of the previous assessment. 10. I am satisfied that the requirements for referral of the matter for further assessment in accordance with section 62 of the Act have been met. 11. After considering the factors relevant to the exercise of my discretion under section 62 of the Act, I am also satisfied that the matter should be referred for further medical assessment. 12. The matter will be referred for further assessment."
Whether reasons were required was disputed, that turning on the proper construction of the legislative regime, particularly, the operation of the transitional provisions of the 2020 Act.

[22]

The reasons given by the assessor

Dr Parmegiani's March 2020 certificate indicated that the motor accident had caused an adjustment disorder which gave rise to a permanent impairment greater than 10%. The result was that in accordance with the applicable statutory formula, Ms Dimos' whole person impairment was assessed to be 17%.
But in the reasons Dr Parmegiani gave for that conclusion he did not refer to Ms Dimos suffering an adjustment disorder. Rather, he referred to the motor accident having caused a persistent depressive disorder, which was then permanent. But neither party suggested that anything turned on this.
The conclusion that the impairment was permanent rested on five years having passed since the accident, Ms Dimos still suffering the depressive disorder, for which she was no longer pursuing treatment. Dr Parmegiani was also satisfied that her condition would not demonstrate any significant clinical improvement over the next 12 months and so concluded that it had stabilised, in accordance with the applicable guidelines.
Dr Parmegiani noted that the parties' dispute concerned whether Ms Dimos' impairment as the result of injury caused by the accident was greater than 10%. He indicated that he had seen the application and reply forms, the supporting documents, as well as identified additional documents and that he had also examined Ms Dimos.
Dr Parmegiani then outlined the history Ms Dimos had given, which included that she had no personal history of psychiatric illness before the accident. Afterwards she had consulted a psychologist once a week for a year about her fears, such as not finding words and struggling with how to return to work. Her psychosocial history included being unable to return to her work as a fulltime store manager after the accident because of intolerable pain, speech difficulties, inability to find the right words to articulate her thoughts and generally to express herself, as well as daily headaches which continued to affect her.
Dr Parmegiaini noted that Ms Dimos had no memory of the car accident which had occurred while she was asleep in the front passenger seat, while her husband was driving. Her first memory was being in the hospital emergency department suffering a lot of pain. She was discharged the next day, having been diagnosed to have suffered only bruising of the sternum and diaphragm.
But she continued to be in constant pain, for which she pursued treatment. She received physiotherapy and medication and also later pursued treatment from a psychologist, suffering persistent pain and headaches. She was later diagnosed to be suffering depression, with which she did not agree, but still she pursued counselling, which helped her.
Ms Dimos' current symptoms were identified no longer to be muscular pains, which were mostly better, but headaches, which she described, which continued to trouble her daily and her mood was not as happy as it had been before the accident. She was worried about not being able to return to work and her financial situation, concerns which her husband, who had attended the examination with her, considered justified. She also had trouble sleeping and with rumination about her problems; her energy levels were quite low; and her motivation tended to fluctuate.
Dr Parmegiani explained his findings about Ms Dimos' current functioning and activities of daily living, which resulted in the conclusion that her whole person impairment was 17%. He considered her reported psychological symptoms to be understandable in the context of her experience, which did not appear to be exaggerated or embellished.
He also explained his conclusions by reference to what medical records and reports established from a psychiatric perspective, under the heading "Review of Documentation".
They included psychologists' April and July 2015 diagnoses of adjustment disorder with mixed anxiety and depressed mood; an August 2015 report of a neurologist which suggested a principal diagnosis of posttraumatic migraine with cognitive decline; a February 2017 psychiatrist's opinion that she suffered a major depressive disorder, with a differential diagnosis of severe adjustment disorder with depression and anxiety; and another neuropsychiatrist and neurophysiologist's November 2018 opinion that she had suffered a complicated mild traumatic brain injury with evidence of intracranial abnormality, presenting with depressive and PTSD type symptoms.
Dr Parmegiani also noted that her consultation with a clinical psychologist before the accident which had not resulted in a formal psychiatric diagnosis. That accords with the 2014 records on which the insurer relied to advance its 2022 application.
Dr Paremegiani also referred to a December 2018 psychologist's assessment that Ms Dimos had experienced a cervical spine soft tissue injury which had not resulted in any permanent impairment; as well as a July 2018 opinion of another clinical psychologist that she had not suffered a traumatic head or brain injury, but possibly exhibited reactive psychological difficulties, which other experts disagreed with; as well as an August 2019 psychiatric assessment that she still had significant functional impairment as the result of her psychiatric injury.
The assessor's conclusions about Ms Dimos' diagnosis and causation were explained to be, with my emphasis: "Diagnosis and Causation Ms Effie Dimoss is a 53-year-old lady with no prior documented history of psychiatric illness, who was involved in a motor vehicle accident on 20 February 2015. The dynamics of the accident are described in the sections above. The accident occurred while Ms Dimos was asleep in the front passenger seat of a car driven by her husband, and therefore she had no recollection of the accident. The airbags deployed, presumably causing some degree of trauma to her head. She stated that she had no recollection of any events from the time of the accident until she was in the Emergency Department of the St Vincent's Hospital later that night. Following the accident Ms Dimos experienced several problems, including symptoms of chronic pain, and some cognitive difficulties. There had been different opinions as to whether she sustained a traumatic brain injury. Ultimately, the SIRA Assessor who was asked to adjudicate on this matter, Dr O'Neill, commented in his Certificate dated 16 November 2018 that no such traumatic brain injury had occurred. SIRA Assessor Shane Maloney acknowledged that Ms Dimos had sustained a cervical spine soft tissue injury, which however led to a degree of permanent impairment of 0%. From a psychiatric perspective, according to the documents reviewed, Ms Dimos was diagnosed with an Adjustment Disorder with Depressed Mood by the psychologist who treated her from shortly after the accident. Counselling helped, but not to any great extent. She was assessed for a medical report by Dr Westmore, psychiatrist, who originally diagnosed her with a Major Depressive Disorder, with a differential diagnosis of severe Adjustment Disorder. Dr Westmore reviewed her more recently, and stated that his provisional diagnosis remained unchanged, while acknowledging that there had been some considerable functional deterioration since his initial assessment. When I interviewed Ms Dimos on 26 February 2020, she reported several psychiatric symptoms, as documented in the sections above, which in my opinion are most consistent with a diagnosis of Persistent Depressive Disorder. In that respect, I am in general agreement with the assessments of Dr Bruce Westmore, but I note now that the symptoms of depression have lasted for more than three years. From a clinical perspective, I believe that the mood symptoms were initially caused by her involvement in the accident and by the symptoms of chronic pain that she experienced afterwards. In that respect, it is my opinion that the accident can be regarded as a significant causal factor for her current psychiatric condition. I note that Ms Dimos has consistently declined to resort to psychotropic medication over time, despite being advised to do so by Dr Westmore. I acknowledge that her symptoms appear to have deteriorated in recent months, and that her functional impairment has deteriorated correspondingly. I was unable to elicit other factors that might be contributing to her current psychiatric condition, and it is therefore my conclusion that the subject motor vehicle accident was the most substantial causal factor for that condition."
Dr Parmegiani then explained his determinations about various aspects of Ms Dimos' permanent impairment, made in accordance with the applicable Guidelines, to which it is not necessary refer further.
I am satisfied that what is apparent from these reasons is that Dr Parmegiani was aware from the medical records and reports he had to consider and what Ms Dimos had disclosed, that in 2014 before the accident she had consulted a psychologist when she was suffering workplace stress, but that she had not then been diagnosed to be suffering any psychiatric condition.

[26]

Was the delegate's opinion formed according to law?

This depends on whether the delegate considered not only whether the 2014 records contained "additional relevant information" which was "capable of having a material effect on the outcome of the previous assessment", but also whether the discretion to refer could justly be exercised in the circumstances which arose for consideration: subs 62(1A) of the 1999 Act.
Neither of these statutory terms are defined. The proper construction of s 62 arose, however, in Jubb. There it was observed that the ordinary meaning of "additional" is "supplementary" and that "the phrase 'additional relevant information', as used in s 62, refers to information which is additional to that which was before the medical assessor when the previous medical assessment was carried out" and thus concerns the same issue as has already been considered: at [60].
The purpose of a referral for further assessment is to facilitate "an ultimate determination that represents the correct and preferable decision": at [62]. As there explained, the discretion to make such a referral is to be exercised when additional information comes to light, or the claimant's condition changes after the original assessment.
The discretion given in subs 62(1) enables the President to deal with applications for a further assessment "which are vexatious or raise considerations such as lack of diligence by a party in obtaining information": at [63]. This was why it was relevant for the insurer to correctly identify the documents to have been 2014 records which had been in its hands even before Dr Parmegiani's assessment. As also explained in Jubb, referrals where parties have not been diligent in obtaining material and placing it before the assessor are undesirable: at [70].
A referral may be made where the material considered by the previous medical assessor on an issue was incomplete or inaccurate, or the medical opinions provided were based on a history or assumptions which were incomplete or inaccurate or where a claimant has provided an untruthful history: at [64].
As I have earlier explained by reference to Dr Parmegiani's reasons, there were no problems of this kind with the material which the parties had advanced on the original assessment. It is always for the parties to decide what information is put before an assessor. Why the insurer had not put the 2014 records before Dr Paremgiani was unexplained. Nor had the insurer obtained some new relevant medical opinion about the 2014 records which post dated Dr Parmegiani's assessment.
These were all matters for the delegate to consider.

[28]

Were the 2014 records "capable of having a material effect on the outcome of the previous assessment"?

Nor for the conclusion that the records were capable of having a material effect on the outcome of Dr Parmegiani's assessment.
There must be a basis in the information sought to be put before another assessor, for the conclusion that it is capable of having a material effect on the outcome of the previous assessment, to be arrived at. Whether or not additional relevant information is capable of having that effect depends on the reasons for the previous assessment and the nature of the additional information: Chan at [70].
In this case the reasons given by the delegate do not disclose that a consideration of these matters was undertaken.
The records were consistent not only with Ms Dimos' report that she had no personal history of psychiatric illness before the accident, but also with the conclusions of Dr Westmore, with which Dr Parmegiani agreed, about the treatment she had pursued in 2014. Thus Dr Paremgiani's explanation that he was unable to elicit factors other than the accident, that might be contributing to Ms Dimos' current psychiatric condition.
On the reasons given what persuaded the delegate to refer the matter for further assessment was that the 2014 clinical records were not before the assessor. But that alone was incapable of satisfying the precondition, it being the information which they contained which arose to be considered.
Dr Parmegiani's reasons establish that he had already considered that information, with the result that the records themselves, as well as the information they contained, were also incapable of having a material effect on the outcome of his assessment.
Given the limited reference the delegate made to Dr Parmegiani's reasons, without any reference to his explanation of Ms Dimos' pre-accident experiences and treatment and the views he reached about them, that the delegate did not undertake the statutory task must be accepted. That required consideration being given to the possibility that the limited information which the records contained could have affected the conclusions already reached about what that information concerned.
Given the nature of that information, such a consideration could not have resulted in the conclusion that the statutory precondition was satisfied. There was simply no factual basis for that conclusion.

[30]

The Court's residual discretion

In all the circumstances I have discussed I am well satisfied that this is not an appropriate case for the exercise of the Court's undoubted discretion not to provide relief on a judicial review application, even when relevant error is established.
Reliance was placed by the insurer on what was observed in Dominice v Allianz Australia Insurance Ltd [2017] NSWCA 171 at [7]: "Where the proper officer refuses to grant a review on the basis of a legal misunderstanding as to the scope of his or her powers, there may well be grounds for judicial review of that decision. Its effect may be to deny a claimant an opportunity to obtain damages for non-economic loss. However, when the error is said to have resulted in the failure of the proper officer to refuse a referral, the legal consequences are quite different. If the basis of her suspicion had been misconceived, one would expect that misconception to be identified by the review panel, which would dismiss the application and confirm the original certificate of assessment. A judge faced with a judicial review application in such circumstances, at least where the bona fides of the proper officer was not in question, would have strong reasons for rejecting the application on discretionary grounds."
I am well satisfied that the errors here established could not justly result in a refusal of the orders sought, the legislative scheme contemplating as it does that the medical certificate issued in 2020 is binding and that there should be no further assessment of Ms Dimos' injuries, other than in the circumstances specified in s 62.
Here, as I have explained, there was no available basis for the exercise of that function, the conclusions arrived at the result of legal error. They are not errors of a kind sensibly to be left to another assessor to consider. That will not be part of his or her function on a further assessment.
In the result I consider that justice requires that orders setting aside the delegate's decision be made.

Dimos v Gordian Runoff Limited

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