Dominice v Allianz Australia Insurance Ltd

The proceedings before the primary judge

1. The Summons filed in the Common Law Division asserted four grounds for review of the proper officer's decision, each of which contended either jurisdictional error or error of law on the face of the record (as is necessary to enliven the Court's jurisdiction under s 69 of the Supreme Court Act).
2. The first asserted error concerned cl 1.43 of the Permanent Impairment Guidelines. As set out in the Summons, Ms Dominice claimed that the proper officer fell into jurisdictional error and error of law on the face of the record: "… in the sense that she did not consider the issue as to whether the medical assessment would have been, or might have been, different had Assessor Ashwell brought the inconsistent clinical findings of Dr Kenna to [Ms Dominice's] attention pursuant to cl 1.43 of [the Authority's] Guidelines for the Assessment of the Degree of Permanent Impairment of an Injured Person."
3. The point sought to be made on behalf of Ms Dominice appears to have been that the proper officer's reliance upon the failure of Dr Ashwell to bring the inconsistencies to Ms Dominice's attention was misplaced, because, had he done so, in the light of his stated conclusion that the restricted range of movement in each shoulder was caused by the cervical spinal injury, no explanation of the inconsistency would have had any impact on the outcome of the assessment.
4. The primary judge recorded the argument advanced in elaboration of this ground as a contention that cl 1.43 was intended to benefit only claimants, to the exclusion of insurers, because its purpose was: "… to accord procedural fairness to a claimant in a case where the medical evidence appears not to verify that an impairment of a certain magnitude exists such that the assessor should modify the impairment estimate pursuant to cl 1.42. This was not the case in the present matter and accordingly cl 1.43 did not apply."
5. He rejected the argument, holding that cl 1.43 was applicable to both parties to an assessment, although, by its nature, it was likely to benefit claimants more often than insurers. He said: "32 It was open to the proper officer reasonably to suspect material error in the certificate on the ground of non-compliance with cl 1.43 without express or detached consideration of whether the assessor might have reached a different result if the clause had been adhered to."
6. The second ground identified in the Summons was that the exercise of the proper officer's power to refer a medical assessment to a review panel required, as a condition precedent, or as a jurisdictional fact, that the proper officer have reasonable cause to suspect that a medical assessment was incorrect in a material respect, and that, as a matter of fact, there was no reasonable cause for such a suspicion. The condition precedent, or jurisdictional fact, was the existence of reasonable cause for suspicion, as distinct from the satisfaction of the proper officer that there existed reasonable cause for suspicion. This ground sought to require the "reasonable cause" to exist independently of the proper officer's assessment of whether such "reasonable cause" existed.
7. The primary judge also rejected that contention, which he characterised as transferring the evaluation of reasonable cause to suspect material incorrectness from the proper officer to the court, something that would effectively constitute the court as a court of appeal with merits review of the s 63(3) decision.
8. The third ground in the Summons was that the proper officer's satisfaction that there was reasonable cause to suspect that the medical assessment was incorrect in a material respect was so unreasonable that no reasonable decision maker could have reached the decision.
9. After referring to the decision of the High Court in Minister for Immigration and Citizenship v Li (2013) 249 CLR 332; [2013] HCA 18, the primary judge rejected this contention, saying: "41 It could not be said that the decision of the proper officer in this case lacked an evident and intelligible justification. The proper officer's reasons make clear reference to the absence of reconciliation of the inconsistencies in findings to the putative causation by the accident in July 2013. The proper officer's decision is also reasoned on the basis of the assessor's failure to seek the plaintiff's explanation, if she was able to proffer one, for the inconsistencies. The proper officer's reasons expose on the face of them, how she came to her decision to refer the assessment to a review panel. This is an intelligible and supportable determination."
10. The fourth ground was, essentially, a repeat of the first, and it was treated in the same way by the primary judge.

The appeal

1. By Amended Notice of Appeal, Ms Dominice asserted error on the part of the primary judge in:

• finding no error of law by the proper officer in her application of cl 1.43;
• failing to find, as a matter of law, that the existence (objectively assessed) of reasonable cause to suspect that the medical assessment was materially incorrect is a "jurisdictional fact or criterion" upon which the exercise of the proper officer's power to refer to a review panel is conditioned and, further, in finding that such reasonable cause did in fact exist;
• in failing to find that the decision of the proper officer was so unreasonable that no reasonable decision maker could have reached the decision;
• in finding that it was not irrelevant for the proper officer to take into account the apparent failure by Dr Ashwell to apply cl 1.43 (this ground depended on the anterior proposition that cl 1.43 was inapplicable to an insurer);
• in construing cl 1.43 as potentially conferring a benefit on insurers as well as claimants.

Ground 1

1. In support of the first ground, counsel for Ms Dominice placed heavy reliance on what he called "the principle" in the decision of Hall J in Nguyen v Motor Accidents Authority of New South Wales [2011] NSWSC 351. In the paragraph upon which specific reliance was placed, Hall J said: "99 Injury to one part of the body, such as the back, it is well-known as part of human experience, may result in impairment not only to the injured back itself but to other parts constitutionally associated or linked to the back such as the upper or lower limbs. The explanation, of course, is well understood and lies in the fact that trauma to the back may interfere with or cause interference to or impingement of the nerve roots associated with the spinal column (eg, pain (sciatica) or loss of function in the limbs)."
2. The characterisation of this paragraph as a statement of "principle" is, in my opinion, an overstatement; it is a statement of fact. It simply acknowledges what medical practitioners (and legal practitioners and judges who engage in the world of personal injury litigation) have come to know, that injury to one part of the body can cause pain to other parts of the body. It remains necessary, in any individual case, to determine whether, in the circumstances of the individual case under consideration, the secondary injury is caused by or related to the primary injury. Dr Ashwell can be taken to have been well aware of the phenomenon but nevertheless declared himself: "at a loss to explain why the shoulder movement has now decreased by such an amount [since Ms Dominice was examined by D Kenna]."
3. It was also contended, by reference to the transcript of the hearing before the primary judge, that the primary judge was "not fully cognisant of the principle in Nguyen". The passage of transcript cited in support of this submission discloses quite clearly that the primary judge was fully aware of the concept of referred pain, and was also fully aware of the need for the medical assessment to consider any causal connection between the secondary injury and the primary injury.
4. Counsel then attacked the use made by the primary judge of the various inconsistencies to which he alluded, all drawn directly from Dr Ashwell's report. The contention was that these (for example, Ms Dominice's inability to make a fist) had no bearing on Dr Ashwell's ultimate determination that her shoulder restrictions should be considered as part of her impairment. The failure to take the course required in cases of inconsistency by cl 1.43 was, it was asserted, inconsequential, and, accordingly, could not satisfy the test of materiality for the purposes of s 63(3). Reference was made to the decision of this Court in Meeuwissen v Boden (2010) 78 NSWLR 143; [2010] NSWCA 253 in which, at [17]-[24], Basten JA explained the concept of materiality. The argument, as it was advanced orally, was that error on the part of Dr Ashwell in failing to draw to Ms Dominice's attention the inconsistencies he mentioned could not be material error because, in the circumstances of Dr Ashwell's stated conclusion, the inconsistencies were irrelevant.
5. The argument suggests that the material incorrectness of which the proper officer was satisfied that there was reasonable cause to suspect was error in the process undertaken by Dr Ashwell. That is incorrect. What the proper officer was satisfied was potentially materially incorrect was the assessment - Dr Ashwell's allocation of percentages of degrees of permanent impairment, in particular of the shoulders. That material error may have resulted from an error in the process, but it remained potentially material incorrectness.
6. A further proposition put on behalf of Ms Dominice was that cl 1.43 applies only when cl 1.42 is engaged. Why this should be so was not explained. Clause 1.43 is perfectly capable of standing alone. It requires a medical assessor who detects inconsistency between clinical findings and information obtained through medical records and/or observations of non-clinical activities to draw these inconsistencies to the claimant's attention in order to provide an opportunity for explanation. The primary judge was correct to hold that, in the ordinary course, it could be expected that this requirement would be beneficial to claimants, but that the purpose of the clause is not so limited.
7. Clause 1.43 offers a guard against the drawing, unfairly, of conclusions about inconsistencies detected in a claimant's presentation. It can also, as in the present case, act as a guard against conclusions that may be unfairly drawn in favour of a claimant, against the interests of an insurer, where the conclusions (as here) are unsupported by medical records or history. In order to make a proper assessment, Dr Ashwell needed to investigate the discrepancies between Ms Dominice's presentation to Dr Kenna 10 months earlier and her presentation to him, as well as the inconsistencies he noted in her presentation to him. It was the drawing of the conclusion, in the face of inconsistent medical records and without exploration or explanation, that caused the proper officer to have the requisite satisfaction that there was reasonable cause to suspect that Dr Ashwell's assessment was incorrect in a material respect. No error in the primary judge's conclusion in this respect was established. Ground 1 of the appeal was rejected.
8. Counsel for Ms Dominice frankly conceded that the appeal depended upon his contentions in respect of cl 1.43, and that, should Ground 1 fail, the appeal must fail. In those circumstances it is possible and appropriate to deal with the remaining pleaded grounds briefly.

Ground 2

1. It appeared that Ms Dominice continued to contend that the jurisdictional fact necessary for the exercise of the s 63(3) power by the proper officer is the existence (judged objectively or by this Court) of reasonable cause to suspect the incorrectness of the assessment, as distinct from the proper officer's satisfaction of the existence of such reasonable cause.
2. The primary judge properly rejected this contention when it was put to him. The jurisdictional fact that triggers the power in the proper officer to refer an assessment to a review panel is the proper officer's satisfaction of the existence of reasonable cause for suspicion. It is not the existence, evaluated by the court, of reasonable cause for suspicion: QBE Insurance (Australia) Ltd v Miller (2013) 67 MVR 322; [2013] NSWCA 442 at [34]-[34]. The jurisdictional fact has been established by the proper officer's statement to that effect. There was nothing "irrational" or illogical about the determination (Miller, at [36]).
3. There was no substance in this ground of appeal.

Ground 3: unreasonableness

1. The only basis upon which it was asserted that the decision was relevantly unreasonable was the contention, repeated, that, as cl 1.43 was inapplicable, the proper officer's reliance on Dr Ashwell's failure to explore the inconsistencies as a basis for her satisfaction rendered her decision unreasonable in the relevant sense.
2. The manner in which the primary judge dealt with this contention is set out above. No fault can be found with it. This ground of appeal was rejected.

Ground 4

1. The complaint made under this ground (which was essentially a repeat of the complaint under Ground 1) was that the primary judge unduly limited his consideration of the proper officer's reliance on the failure by Dr Ashwell to draw to Ms Dominice's attention the inconsistencies in her presentation. The primary judge's consideration was said to be wrongly limited to Ms Dominice's contention that cl 1.43 was to be construed as being for the benefit of claimants only.
2. It is correct that the submissions on behalf of Ms Dominice before the primary judge also included a contention that cl 1.43 was inapplicable for reasons other than its confinement to benefit of claimants. So far as I can ascertain, the proposition was that, because Dr Ashwell concluded that Ms Dominice's restricted shoulder movements should be considered as part of her impairment, cl 1.43 did not apply, and, it seems, the inconsistencies in presentation that he had observed faded into insignificance. In oral argument it became clear that the contention was that Dr Ashwell's expressed conclusion was absolute, and not subject to question by the proper officer. Dr Ashwell having stated a conclusion of a connection between the symptoms and the motor accident, there was no basis for the proper officer to inquire into whether any cause for suspicion about the correctness of the conclusion existed.
3. The submission placed undue weight upon Dr Ashwell's conclusion, at the expense of his reasoning process (which was not disclosed in the report). Dr Ashwell noted inconsistencies in presentation. He (apparently) made no attempt to explore them with Ms Dominice. He merely put them aside in stating (not reaching) his conclusion. It was there that cl 1.43 had its part to play. It may very well have been that, had Dr Ashwell engaged Ms Dominice with respect to the inconsistencies, he would not have been able to state the conclusion that he did. That is the potential material error on which the proper officer formed her satisfaction.
4. The primary judge did not, in his extempore reasons, expressly advert to this latter contention. It is one that, if he had, he ought properly to have rejected.

Ground 5

1. By the final ground, Ms Dominice asserted error in the primary judge's conclusion that the application of cl 1.43 is limited to affording a claimant procedural fairness, and does not extend to allow an insurer to take advantage of it. For the reasons given above, that contention cannot be accepted. Moreover, it runs counter to the clear words of the clause, which identify the reason for the requirement as being, not only to ensure procedural fairness to a claimant, but also to "ensure accuracy". This is not limited to claimants.
2. For these reasons I joined in the orders made on 23 June 2017.
3. EMMETT AJA: The question in this appeal was whether a decision made on 17 August 2015 by the proper officer (the Proper Officer) of the second respondent, State Insurance Regulatory Authority (the Authority), involved relevant error, such that it was liable to be set aside upon review under s 69 of the Supreme Court Act 1970 (NSW). By the decision in question (the Impugned Decision), the Proper Officer decided to refer a medical assessment of the appellant, Ms Jessye Dominice (Ms Dominice), to a panel of assessors for review. After hearing oral argument on 23 June 2017, the Court ordered that the appeal be dismissed and that Ms Dominice pay the costs of the first respondent, Allianz Australia Insurance Ltd (the Insurer). The Court indicated that it would publish its reasons later.

Background

1. On 25 July 2013, Ms Dominice was the driver of a motor vehicle that was struck in the rear by another motor vehicle. At that time, the Insurer was the compulsory third party insurer of the vehicle that collided with the rear of the vehicle being driven by Ms Dominice. Ms Dominice claims that, as a consequence of the collision, she suffered injury to her neck, to her thoracic and lumbar spine, to both shoulders and to her right hip and knee, and made a claim for compensation under the Motor Accidents Compensation Act 1999 (NSW) (the Compensation Act).
2. In early July 2014, Ms Dominice was medically examined in connection with that claim by Dr Clive Kenna, who was engaged by the Insurer. Dr Kenna found diminished range of movement in the cervical spine but no diminishment of reflexes or of normal sensation or of muscle power. He found no reduction in movement of either shoulder and no impairment of those joints. He also found that no neurological deficit was evident in either arm and that both arms had full range of movement. He found that the thoracic spine, lumbar spine and legs were normal in range of movement, reflexes and muscle power. Dr Kenna noted that no future treatment was planned and he did not recommend any future treatment.
3. The Insurer did not accept Ms Dominice's claim that she had suffered more than 10 per cent "whole person impairment" within the meaning of the Compensation Act. As a consequence, a medical dispute arose that constituted a "medical assessment matter" within the meaning of the Compensation Act. The dispute was referred to the Authority under the Compensation Act and the Authority arranged for the dispute to be referred to Dr John Ashwell, a medical assessor. Dr Ashwell examined Ms Dominice on 13 May 2015 and, on 18 May 2015, issued a certificate under the Compensation Act in which he concluded that Ms Dominice's whole person impairment due to the accident was 18 per cent, being cervical spine 5 per cent, right upper extremity (shoulder, elbow, wrist and hand) 7 per cent, left upper extremity (shoulder, elbow and wrist) 4 per cent and right lower extremity (knee and hip) 2 per cent.
4. In his certificate, Dr Ashwell recorded a number of findings that he expressly stated were inconsistent; that he was unable to reconcile with Ms Dominice's history; and that he could not accommodate with principles of anatomy and medical science. Dr Ashwell also recorded that he did not have the full co-operation of Ms Dominice in attempting to ascertain the range of movement of her limbs and in other respects. Dr Ashwell's certificate contains no explanation of how, if at all, the inconsistencies that he identified were resolved to his satisfaction. In particular, the certificate does not state how, in spite of the inconsistencies identified, Dr Ashwell felt able to attribute the measures of whole person impairment that he found with respect to the shoulders or how he found those to be related to the motor vehicle accident, assuming the restrictions of shoulder movement were bona fide. In fact, the purported shoulder restrictions had emerged more than 12 months after the accident and after Dr Kenna's examination in July 2014. On the findings made by Dr Ashwell, the purported shoulder restrictions had no anatomical connection to the cervical spine injury that was the principal trauma noted on Ms Dominice's claim form, which was dated two months after the accident. The restrictions on movement are quite distinct from the referred pain that was mentioned in that claim form and noted by Dr Kenna.
5. Dr Ashwell's certificate contains phrases identifying lack of scientific or rational connection between the apparent symptoms in the shoulders, on the one hand, and the motor vehicle accident, on the other hand. For example, he said that he was "at a loss to explain" why the shoulder movement had now decreased by such an amount. He said that Ms Dominice had restricted movement of both shoulders "which appeared to be associated with her neck symptoms and not from any specific pathology in the shoulders". Dr Ashwell said that that was difficult to determine accurately, given Ms Dominice's "display of symptoms". Those explicit uncertainties culminated in a statement in the certificate that "I therefore believe the restricted right and left shoulder movements found today should be considered as part of her impairment". The certificate does not explain why Dr Ashwell had such a belief having regard to the doubts and disconnections just described.
6. Dr Ashwell also referred to the restriction of shoulder movement as being "associated with her neck pain". The nature of such an association was not elaborated on and the rest of the certificate suggested that there was simply no association. The certificate failed to substantiate Dr Ashwell's conclusion of there being a connection.
7. Dr Ashwell also found "no evidence of ongoing true radiculopathy". That is to say, he found no evidence of referred pain sensed in the arms or shoulders as a result of interference with or impingement upon the nerve roots where they exit the spaces between the vertebrae in the cervical spine. Finally, Dr Ashwell stated in the certificate that the restriction of movement of both shoulders was "assessed on range of movement". That statement provided no explanation of what Dr Ashwell did about Ms Dominice's lack of co-operation in exhibiting potential ranges of movement or how he took into account her claims of restriction on movement, given that they were not borne out when Ms Dominice was left to sit in a chair, as opposed to having a test or measurement undertaken.

Application to the Proper Officer

1. Under s 63 of the Compensation Act, a party to a medical dispute may apply to the Proper Officer to refer a medical assessment by a single medical assessor to a review panel of medical assessors for review. An application for the referral of a medical assessment to a review panel may only be made on the grounds that the assessment was incorrect in a material respect. The Proper Officer is then required to arrange for such an application to be referred to a panel, but only if the Proper Officer is satisfied that there is reasonable cause to suspect that the medical assessment was incorrect in a material respect, having regard to the particulars set out in the application.
2. On 25 June 2015, the Insurer applied in writing to the Proper Officer for a referral of Dr Ashwell's assessment to a panel of assessors for review. The application referred to a number of observations made by Dr Ashwell in his certificate. The application then asserted that Dr Ashwell was aware that Ms Dominice was reluctant to participate fully in the assessment and noticed numerous inconsistencies during the assessment. The application stated that, despite those inconsistencies, there was no evidence suggesting that Dr Ashwell had brought those matters to Ms Dominice's attention as required by cl 1.43 of the Permanent Impairment Guidelines 2007 (NSW) (the Guidelines). The Insurer contended that the examination of Ms Dominice's left and right shoulders did not reveal any specific pathology and that, despite the inconsistencies, Dr Ashwell proceeded to assess Ms Dominice's range of movement using a goniometer.
3. The Insurer contended that, while it accepted that Dr Ashwell, as assessor, was required to consider and assess Ms Dominice's shoulder if there was alleged referred symptomology, he was still required to consider the causation of such injury and, most importantly, adhere to the Guidelines for assessing such an injury. The Insurer said that, given Dr Ashwell's awareness of Ms Dominice's lack of co-operation at the time of assessment, and the inconsistencies and the absence of evidence of pathology present in the left and right shoulders, the assessment of range of movement in relation to the shoulders could not be used as a valid parameter for assessment of impairment. The Insurer asserted that, given that there was no pathology suggesting injury to the left and right shoulders, the whole person impairment of the left and right shoulders should have been assessed at nil. Had Dr Ashwell assessed the whole person impairment in respect of those items at nil, the whole person impairment would not have passed the threshold.
4. On 17 August 2015, the Proper Officer made the Impugned Decision, namely, accepting the review application and referring it to a review panel. In her reasons for the Impugned Decision, the Proper Officer recorded that Dr Ashwell had noted inconsistent findings, both with symptoms reported by Ms Dominice and the range of movement found on the day of assessment, compared to that previously found. The Proper Officer considered that Dr Ashwell's comment that he was "at a loss to explain" why Ms Dominice's shoulder movement had decreased by such an amount appeared to demonstrate that Dr Ashwell found an inconsistency between the information obtained through the medical records and his own clinical findings. The Proper Officer also referred to Dr Ashwell's comment that he was unable to explain why Ms Dominice's range of movement may have changed since the report by Dr Kenna. The Proper Officer also observed that the inconsistencies found by Dr Ashwell were not brought to the attention of Ms Dominice and that that involved a failure to comply with the provisions of the Guidelines.
5. The Guidelines have the force of law by the operation of s 44 of the Compensation Act. They were applicable to Dr Ashwell's assessment. Clause 1.43 of the Guidelines relevantly provides that, where there are inconsistencies between the assessor's clinical findings and information obtained through medical records and/or observations of non-clinical activities, the inconsistencies should be brought to the claimant's attention. The Guidelines state that the claimant will then have an opportunity to confirm the history and/or respond to the inconsistent observations "to ensure accuracy and procedural fairness".

Proceedings before the Primary Judge

1. Ms Dominice commenced proceedings in the Common Law Division, seeking relief under s 69 of the Supreme Court Act in respect of the Impugned Decision. She sought a declaration that the Impugned Decision was affected by error of law on the face of the record or by jurisdictional error and an order setting the Impugned Decision aside or declaring it invalid.
2. On 23 December 2015, after the commencement of the proceedings, a decision was made by the review panel to revoke the certificate of 18 May 2015 and issue a new certificate that determined Ms Dominice's whole person impairment to be not greater than 10 per cent. By further amended summons filed on 25 February 2016, Ms Dominice sought an order setting aside the decision of the review panel or declaring it invalid.
3. For reasons published on 31 August 2016, a judge of the Common Law Division, sitting in the Administrative Law List (the primary judge), ordered that Ms Dominice's summons be dismissed with costs. By amended notice of appeal filed on 11 May 2017, Ms Dominice appeals from the orders made by the primary judge.

The Appeal

1. Ms Dominice's grounds of appeal may be summarised as follows:

• The primary judge erred in finding that the Proper Officer had not committed an error of law in her application of cl 1.43 of the Guidelines which, it is said, had no part to play in the assessment by Dr Ashwell.
• The primary judge erred in finding that reasonable cause to suspect Dr Ashwell's assessment was materially incorrect.
• The primary judge erred in not finding that the Impugned Decision was so unreasonable that no reasonable decision-maker could have reached the same decision.
• The primary judge erred in finding that it was not irrelevant for the Proper Officer to take into account the apparent failure to apply cl 1.43 of the Guidelines.
• The primary judge erred in construing cl 1.43 of the Guidelines in so far as his Honour found that one of the purposes was to afford procedural fairness to both a claimant and an insurer.

1. On the hearing of the appeal, the Insurer supported the reasoning of the primary judge on two bases, as follows:

• Whether or not cl 1.43 of the Guidelines should be construed in the way contended for by Ms Dominice, the Proper Officer made clear in her reasons the matters that constituted reasonable cause to suspect that Dr Ashwell's assessment was incorrect in a material respect.
• In any event, while the language of cl 1.43 is not entirely clear, there is no reason for construing it as being intended solely for the benefit of a claimant.

1. The inconsistent findings noted by Dr Ashwell, together with his comment that he was "at a loss to explain" why the shoulder movement had decreased, caused the Proper Officer to suspect that Dr Ashwell's assessment was incorrect in a material respect. Whether or not there was a failure to comply with cl 1.43 of the Guidelines, there was a rational basis for the Proper Officer to conclude that the pre-requisites of s 63 were satisfied.
2. Clearly enough, if Dr Ashwell had made an assessment on the basis of Dr Kenna's report rather than his observations, procedural fairness would have required him to draw to Ms Dominice's attention the inconsistencies between his observations and those of Dr Kenna. The object of cl 1.43 is to ensure not only procedural fairness but also accuracy in an assessment. In circumstances where inconsistencies such as those described were apparent and Dr Ashwell failed to take the steps required by cl 1.43, of drawing the inconsistencies to Ms Dominice's attention to give her an opportunity to respond to the inconsistent observations, there was a basis for the Proper Officer to make the Impugned Decision.

Conclusion

1. I have had the advantage of reading in draft form Simpson JA's reasons for joining in the orders made by the Court on the hearing of the appeal. Simpson JA refers to Nguyen v Motor Accidents Authority of New South Wales [2011] NSWSC 351. I agree with her Honour that that case does not establish a new principle. Rather, it is no more than an illustration of the operation and effect of the statutory wording, which was found to incorporate common law principles of causation. It exemplifies that an injury caused by a motor vehicle accident may result in an impairment to another part of the body that has not been injured in the accident, but which nonetheless is to be taken into account in an assessment under the Act. [14]
2. I have also had the advantage of reading in draft form the proposed reasons of Basten JA. I agree generally with his Honour's proposed observations. The writ of certiorari was a mechanism for bringing into a superior court proceedings before an inferior tribunal or court for the purpose of considering whether or not the legal effect or the legal consequences of a decision of the inferior tribunal or court should be quashed. Unless an applicant for the writ was able to demonstrate that there was at least an arguable case for the grant of relief, the matter would remain in the inferior tribunal or court and would not be removed into the superior court.
3. For the reasons proposed by Simpson and Basten JJA and the brief reasons outlined above, I joined in making the orders for dismissal of the appeal with costs.

Endnotes

1. Motor Accidents Compensation Act 1999 (NSW), s 131.
2. Since 1 September 2015 the relevant Authority is the 2nd respondent, the State Insurance Regulatory Authority: see State Insurance and Care Governance Act 2015 (NSW), s 17; Sch 4 cl 4.
3. Motor Accidents Compensation Act, s 63(3).
4. Dominice v Allianz Insurance [2016] NSWSC 1241 ("Dominice").
5. Ainsworth v Criminal Justice Commission (1992) 175 CLR 564 at 580 (Mason CJ, Dawson, Toohey and Gaudron JJ); [1992] HCA 10.
6. Motor Accidents Compensation Act, s 63(2).
7. See, eg, Meeuwissen v Boden (2010) 78 NSWLR 143; [2010] NSWCA 253.
8. Dominice at [36], referring to QBE Insurance (Australia) Ltd v Miller [2013] NSWCA 442 at [17], [27]-[36].
9. Public Service Board of New South Wales v Osmond (1986) 159 CLR 656; [1986] HCA 7.
10. QBE v Miller at [37].
11. Supreme Court Act, s 101(2)(r).
12. BHP Billiton Ltd v Dunning [2013] NSWCA 421 at [19]-[21] (Gleeson JA; Macfarlan JA and Young AJA agreeing).
13. [2014] NSWSC 1848 at [59].
14. See QBE Insurance (Australia) Limited v Davies [2016] NSWSC 536 at [30] DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 12 July 2017