Goodman v The Motor Accidents Authority of NSW and Anor

Goodman v The Motor Accidents Authority of NSW and Anor - [2009] NSWSC 875 - NSWSC 2009 case summary — Zoe

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Factual background 5 The plaintiff suffered multiple injuries when he fell from the rear of a motor vehicle at Parramatta Park on 26 June 2004. He was then aged 9. The second defendant, Andrew Coulsen, was the driver of the vehicle. 6 One of the allegations made by the plaintiff is that his injuries were caused by the negligence of the second defendant in the driving of the vehicle and that any damages to which he is entitled must be assessed under the Motor Accidents Compensation Act 1999 (the Act). 7 Under the Act an injured person is not entitled to damages for non-economic loss unless that person suffered permanent whole person impairment greater than 10 percent (s 131). If there is a dispute between the parties as to whether the threshold is satisfied, and/or as to whether the injured person's disabilities have stabilised so that any impairment may be said to be "permanent", that "medical dispute" is referred by the Motor Accidents Authority of NSW (MAA) to a medical assessor (s 132). 8 A medical assessor is required to assess impairment in accordance with "medical assessment guidelines" made pursuant to s 44 of the Act (the guidelines), which operate as if they were delegated legislation (s 65(1)). 9 The guidelines in place at the time of the decision under challenge, were those made in March 2006 (those guidelines have since been replaced by guidelines effective from 1 October 2008). 10 The plaintiff alleges that he suffered physical injuries including, inter alia, a traumatic brain injury as a result of the accident on 26 June 2004. 11 On 17 July 2006 the plaintiff's solicitors lodged an application with the MAA for assessment of a medical dispute, namely whether the plaintiff's physical injuries had stabilised and if so, the degree of permanent whole person impairment. 12 On 6 October 2006 in accordance with its protocol for the assessment of traumatic brain injury, the MAA allocated two medical assessors to determine the medical dispute, namely Dr Buckley, a rehabilitation physician and Dr Moore, a psychiatrist. 13 Dr Buckley assessed the plaintiff in January 2007. Dr Buckley issued certificates under s 61(1) of the Act on 30 January 2007. Dr Buckley certified that the plaintiff's traumatic brain injury had stabilised and gave rise to permanent whole person impairment greater than 10 percent. 14 Dr Moore assessed the plaintiff in March 2007. On 12 March 2007 Dr Moore issued certificates. Dr Moore certified that the plaintiff's traumatic brain injury had not stabilised and therefore declined to assess impairment. 15 On 20 March 2007 the second defendant lodged an application for further medical assessment under s 62 of the Act, which, at that time, was in the following terms: "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 deterioration of the injury or additional relevant information about the injury, or (b) By a Court or Claims Assessor. (1A) A matter may not be referred again for assessment by a party to the medical dispute on the grounds of deterioration of the injury or additional relevant information about the injury unless the deterioration or additional information is such as to be capable of having a material effect on the outcome of the previous assessment. (1B) Referral of a matter under this section is to be by referral to the officer of the Authority designated by the Authority for the purpose (in this Part referred to as the "Proper Officer of the Authority"). (2) A certificate as to a matter referred again for assessment prevails over any previous certificate as to the matter as to the extent of any inconsistency." 16 With the application for further medical assessment, the second defendant provided "additional information". For reasons not explained, an extraordinary delay seems to have occurred between the making of this application by the second defendant and the MAA responding to it. 17 On 17 June 2008 the MAA determined that the application satisfied the requirements for further medical assessment and notified the parties of that decision. There is no challenge in these proceedings to this decision of the MAA. 18 On 25 June 2008 the MAA notified the parties that it had allocated two assessors to carry out the further medical assessment, Dr Lethlean, a neurologist and Dr Newlyn, a psychiatrist. 19 The notification of 25 June 2008 relevantly provided: "This matter has been referred for a further assessment under section 62(1)(a) of the Act. The allocation review has been conducted and it has been determined that this matter will be assessed in accordance with the MAAS (Motor Accident Assessment Service) protocol for the assessment of brain injury. You will find enclosed a copy of an information sheet "Assessment of Brain Injuries - Information for the Injured Person" which outlines how the protocol works. Please contact the Case Manager listed at the end of this letter should you have any queries regarding the protocol. Accordingly, appointments have been made for the injured person to see: Assessor: Keith Lethlean, Neurologist Address: 6 Clara Street, RANDWICK Date: 5 August 2008 Time: 11:00am Assessor: Thomas Patrick Newlyn, Psychiatrist Address: St John of God Medical Centre, 3 Grantham Street, BURWOOD NSW Date: 30 September 2008 Time: 11:00am The brain injury specialist may deem that the appointment with the assessor Thomas Newlyn is not required. In such cases, this appointment will be cancelled and you will be advised accordingly. Copies of the letters to the assessors are enclosed. The assessor will receive all the information provided by the parties in relation to the original assessment and in relation to the application for further assessment, together with a copy of previous Statement of Reasons and Certificates of determination in this matter. The assessor will only view the information available to both parties. If you have further information that you wish the assessors to consider you must obtain the consent of the other party prior to forwarding this information to MAS (Medical Assessment Service) …" 20 On 11 July 2008 the plaintiff's solicitors wrote to the MAA requesting that the MAA reconsider the referrals to Dr Lethlean and Dr Newlyn. That letter was in the following terms: "We refer to the above matter and your correspondence dated 25 June 2008. We note you have not provided us with reasons as to why the application for further assessment has been granted pursuant to section 62(1)(a) of the Act. Notwithstanding the above we note the further assessment has not been allocated to the same assessor who initially examined the Plaintiff. In this regard we request you reconsider your position in relation to referring the matter back to the original assessor for the purpose of a further assessment. We indicate the above without prejudice to our client's position that he does not consider a further assessment is warranted. We await your reply and in the meantime we have advised our client not to attend the appointment with Dr Lethlean on 5 August 2008 and Dr Patrick Newlyn on 30 September 2008. Upon receipt of your reply our client will consider his position." 21 On 30 July 2008 the MAA responded to the plaintiff's letter rejecting the plaintiff's request as follows: "I refer to your letter dated 11 July 2008. I enclose a copy of the reasons for the acceptance of this further application and note that this was originally sent to you on 17 June 2008. I note your request that this matter be referred back to the original assessors. MAS attempts to allocate matters to the original assessor where practical but in this instance was unable to secure appointments with the original assessor. Accordingly, I confirm that the appointments with Assessors Lethlean and Newlyn still stand and I request that you advise your client to attend these appointments. Should you have any further questions related to this matter please contact the writer on [telephone number provided]." 22 On 5 August 2008 on advice from his solicitors, the plaintiff did not attend the appointment with Dr Lethlean. On that same date, the solicitors for the plaintiff wrote to the MAA as follows: "We refer to the above matter and your correspondence dated 30 July 2008. We advise this firm has lodged a complaint in respect of Assessor Lethlean. In light of this complaint we feel it would be inappropriate that Mr Goodman attend upon Dr Lethlean. We request you consider making a further inquiry with Dr Buckley, as to whether he is available for the purpose of assessing Mr Goodman. We look forward to receiving your reply and advising as to whether you have been able to secure an appointment with Dr Buckley." 23 By way of further background, the guidelines entitled a party to apply to the Proper Officer of the MAA for reallocation of the matter to a different medical assessor. Clause 11.14 of the guidelines provides: "11.14 A party may, within 10 days of the date of sending of notification of the name of the assessor, apply to the Proper Officer to have the matter reallocated to a different assessor. Such an application must be made in writing and be accompanied by a detailed statement of factual matters and/or reasons as to why the assessor might be unsuitable." 24 Self evidently the letters from the plaintiff's solicitors of 11 July and 5 August 2008 did not comply with clause 11.14 of the guidelines. Not only were the letters out of time, but they were not accompanied by a detailed statement of factual matters or reasons why the assessor might be unsuitable. 25 On 15 August 2008 the MAA notified the parties that new appointments had been made for further medical assessment, namely appointments with Dr Buckley and Dr Newlyn. That notification was in the following form: "I refer to previous correspondence and advise that the following appointment has been rescheduled at the request of the Injured Person's solicitor. The details of the new appointment are as follows: Assessor: Stephen Buckley, Rehabilitation Physician Address: The Gallery Arcade, Level 4, 445 Victoria Avenue, CHATSWOOD NSW Date: 2 October 2008 Time: 3:45pm In line with Acquired Brain Injury protocol, the following appointment has also been rescheduled. Assessor: Thomas Patrick Newlyn, Psychiatrist Address: St John of God Medical Centre, 3 Grantham Street, BURWOOD NSW Date: 18 November 2008 Time: 11:00am We ask the claimant to bring all relevant x-rays and scans to the appointments. It is recommended the claimant arrive at least fifteen minutes before the scheduled appointment times. If an Injured Person fails to attend more than once, the assessment will be done on the available evidence. If you have any specific questions in relation to this matter please contact the Case Manager …" 26 By letter dated 12 September 2008 the solicitors for the second defendant wrote to the MAA complaining about the conduct of the plaintiff's solicitors and the change to the medical assessors. That letter was in the following terms: "We refer to the further assessment under s 62(1)(a) of the Act. We note MAS made appointments for the claimant to be assessed as follows: Assessor Keith Lethlean - 5 August 2008 Assessor Thomas Newlyn - 30 September 2008. Subsequently, the claimant's solicitors CMC Lawyers wrote to MAS requesting the claimant be re-assessed by Dr Buckley, who had previously assessed the claimant. MAS responded to that correspondence by letter dated 5 August 2008, advising that, whilst MAS endeavours to refer matters back to the original assessor, it was impractical to do so in the current matter. MAS confirmed the appointments with Assessors Lethlean and Newlyn and requested CMC Lawyers advise their client to attend. By letter dated 5 August 2008 (the date of the scheduled assessment with Assessor Lethlean), CMC Lawyers wrote to the Motor Accidents Authority advising the firm had lodged a complaint in respect of Assessor Lethlean and, in light of the complaint, felt it inappropriate the claimant attend the appointment with Dr Lethlean. They again requested inquiries be made for the purpose of having the claimant assessed by Dr Buckley. We note your subsequent advices an appointment has now been scheduled for the claimant to be assessed by Dr Buckley. The insurer objects to the above assessments. Our client is gravely concerned that the claimant's failure, in attending the appointments with Assessor Lethlean, when they had been instructed to do so, is blatant manipulation and abuse of the MAS process. No complaint has been made by the claimant against Dr Lethlean in the current proceedings. There is no indication as to what the complaint against Dr Lethlean consists of or whether the complaint has any substance. The insurer notes at no time did the claimant's solicitors advise MAS the claimant would not attend the appointment with Assessor Lethlean. The conduct of the claimant, in failing to attend, appears to represent an abuse and manipulation of the process and the insurer insists the appointment with Dr Buckley be cancelled, and a further appointment be scheduled with Dr Lethlean. Alternatively, the insurer seeks appointment with another assessor. We look forward to receiving your response within seven days." 27 A copy of that letter from the second defendant's solicitors to the MAA of 12 September 2008 was not provided by those solicitors to the solicitors for the plaintiff. The letter from the second defendant's solicitors to the MAA of 12 September 2008, while being out of time, seems to be an application, or a purported application, in accordance with clause 11.14 of the guidelines. 28 By letter dated 24 September 2008 the MAA advised the solicitors for the second defendant of the decision which is now under challenge in these proceedings. That letter provided: "Thank you for your letter dated 12 September 2008. When a matter is accepted by MAS for further medical assessment MAS attempts to, where practicable, have the matter referred back to the original MAS assessor who assessed the claimant in the first instance. In this matter I note that the claimant was originally assessed by Assessor Buckley. However, at the time this matter was allocated for further assessment Assessor Buckley did not have any timely appointments available in order to reassess the claimant. An appointment was therefore made for the claimant to be assessed by Assessor Lethlean. I note the claimant failed to attend the appointment scheduled with Assessor Lethlean on 5 August 2008. In circumstances where a claimant fails to attend a scheduled appointment normal practice adopted by MAS is that another appointment is rescheduled for the claimant to attend the same assessor. In this matter, an appointment should have been rescheduled with Assessor Lethlean. I note a letter from CMC Lawyers dated 5 August 2008, in which CMC Lawyers state that they have lodged a complaint in respect of Assessor Lethlean. I also note that this complaint is not related, in any way, to this claimant or to the assessment of this dispute. This complaint, therefore, does not preclude the claimant from being able to be assessed by Assessor Lethlean. There appears, however, to have been an administrative error made by MAS in that this matter, instead of having an appointment rescheduled with Assessor Lethlean, has now been referred to Assessor Buckley. In this regard I note your submissions in relation to the appointment scheduled by MAS with Assessor Buckley. I propose to deal with this matter as follows. The appointment with Assessor Buckley for Thursday 2 nd October 2008 at 3.45pm will be cancelled. Assessor Lethlean's next available appointment however is not until 19 November 2008. In an effort to have this matter assessed as expeditiously as possible, an appointment has been made for the claimant to be assessed as follows: Assessor : Adeline Hodgkinson Address: Brain Injury Rehabilitation Unit, Liverpool Hospital, Elizabeth Street, LIVERPOOL NSW Date: Friday 3 October 2008 Time: 2:00pm Please note that if the claimant fails to attend the appointment scheduled with Assessor Hodgkinson, the dispute will be assessed on the papers. The appointment currently scheduled with Assessor Newlyn for 18 November 2008 at 11am still stands. CMC Lawyers have been advised of the above." 29 As indicated by the plaintiff's submissions, his objection to the MAA's decision of 24 September 2008 is not to the appointment of Dr Hodgkinson as a medical assessor, but to the revocation of the appointment of Dr Buckley. 30 By letter dated 25 September 2008 the MAA provided the solicitors for the plaintiff with a copy of the letter of 24 September 2008 set out above. The letter of 25 September 2008 was in the following terms: "Please find enclosed a copy of our correspondence to TL Lawyers, which is self explanatory. The appointment with Assessor Buckley for Thursday 2 October 2008 at 3.15pm will be cancelled. Assessor Lethlean's next available appointment, however, is not until 19 November 2008. In an effort to have this matter assessed as expeditiously as possible, an appointment has been made for the claimant to be assessed as follows: Assessor : Adeline Hodgkinson Address: Brain Injury Rehabilitation Unit, Liverpool Hospital, Elizabeth Street, LIVERPOOL NSW Date: Friday 3 October 2008 Time: 2:00pm Please note that if the claimant fails to attend the appointment scheduled with Assessor Hodgkinson, the dispute will be assessed on the papers. The appointment currently scheduled with Assessor Newlyn for 18 November 2008 at 11am still stands.

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Should you have any queries please contact the writer on [telephone number] …" 31 By letter dated 26 September 2008 the solicitors for the plaintiff wrote to the MAA as follows: "We refer to the above matter and your correspondence dated 25 September 2008. Clearly your position is internally inconsistent. You state clearly that you give preference to having the plaintiff assessed via the initial assessor when circumstances permit. We have made our client's position clear that he should be attending upon Assessor Buckley for the purpose of assessing whole person impairment. Any delay in attending this appointment can only prejudice our client not the defendant. Assessor Buckley has been appointed to assess our client and that appointment has now been cancelled for no good reason as far as we can determine. We would be obliged to receive a copy of the letter from TL Lawyers referred to in your correspondence. We request that you advise by no later than Monday 29 September 2008 at 4pm whether you will be rescheduling the appointment with Assessor Buckley on the 2 nd October 2008. We put you on notice that should the appointment not be rescheduled with Assessor Buckley it is our intention to bring an urgent application in the Administration Division of the Supreme Court seeking appropriate orders. In the meantime we request you resecure the appointment on 2 nd October 2008 at 3.45pm until the Court has determined this issue should you not reconsider your position. We undertake to be responsible for any cancellation fees that may be incurred." 32 A copy of the letter of 12 September 2008 from the second defendant's solicitors to the MAA was not sent by the MAA to the solicitors for the plaintiff as requested. No further requests were made for a copy of that letter, either to the MAA or to the solicitors for the second defendant. Mr Capolupo, the solicitor on the record for the plaintiff, in his affidavit of 15 July 2009 said that he did not receive a copy of that letter until he received the affidavit of Frances Allen, which was sworn on 12 March 2009. 33 The MAA does not appear to have responded to the letter of the plaintiff's solicitors of 26 September 2008. If it did a copy of any response has not been placed before me. 34 The plaintiff did not attend the appointment arranged with Dr Hodgkinson on 3 October 2008. Dr Hodgkinson conducted the assessment on the basis of the documentation which had been provided to her. 35 By letter dated 5 November 2008 the solicitors for the plaintiff advised the MAA that the plaintiff would not be attending the appointment with Dr Newlyn on 18 November 2008. That letter went on to advise that the plaintiff would not be attending Dr Newlyn until "the matter is determined by the Supreme Court". 36 On 17 November 2008 Dr Hodgkinson issued certificates to the effect that the plaintiff's traumatic brain injury had not stabilised and that she declined to assess impairment. It is these certificates which the plaintiff seeks to quash and have declared invalid. 37 By letter dated 26 November 2008 the MAA sent the certificates prepared by Dr Hodgkinson to the solicitors for the plaintiff. That letter was in the following terms: "Please find enclosed the certificate dated 17 November 2008 of the MAS assessment conducted by Assessor Adeline Hodgkinson. A copy of this certificate has been forwarded to all parties. Either party may make an application for correction of an obvious error under section 61 of the Motor Accidents Compensation Act 1999 (the Act) and in accordance with Chapter 17 of the Guidelines. Either party may make an application for review of this assessment under s 63 of the Act and in accordance with Chapter 16 of the Medical Assessment Guidelines. An application can only be made on the grounds that the assessment is incorrect in material respect. Late applications for review will not be considered except as provided for in clause 16.5 of the Guidelines. …" 38 In his affidavit the solicitor on the record for the plaintiff, Mr Capolupo, says that had he been provided in a timely manner with a copy of the letter from the second defendant's solicitors to the MAA of 12 September 2008, he would have written to the MAA raising the following issues: "I would have noted the Authority's reference in their correspondence dated 25 September 2008 which states "in an effort to have this matter assessed as expeditiously as possible an appointment has been made for the claimant to be assessed as follows: Assessor Adeline Hodgkinson … Friday 3 October 2008" I would have asked the Authority to note that the appointment with Assessor Buckley which was cancelled was arranged for 2 nd October 2008, which in fact was the day before the appointment with Adeline Hodgkinson. I would have raised with the Authority that their reasoning for cancelling the appointment to assess the matter expeditiously was deficient as the new appointment arranged was in the same timeframe as that with Assessor Buckley. (ii) I would have indicated my client's instructions are that he was prepared to wait until Assessor Buckley is available for a further assessment and accordingly that the Authority should reconsider their position in not appointing Assessor Buckley. (iii) That Assessor Buckley having already examined the plaintiff and read all the documentation is in a far superior position in being able to assess whole person impairment in an expeditious fashion. I would have noted that Assessor Buckley having already examined the claimant and read the substantial amount of material would be in a better position to finalise his report sooner than any new assessor. (iv) I would have referred the Authority to its usual policy of referring applicants back to the original assessor and request they adopt that course in this instance. (v) That one of the objects of the Motor Accidents Compensation Act is the early resolution of the claim and to minimise costs. Granting applications for Further Assessments several years after the initial assessment then referring the matter to a different assessor in circumstances where it is well known that different doctors have different opinions in relation to stabilisation is inconsistent with the early resolution and finalising claim cost effectively." 39 It is tolerably clear from the correspondence from the MAA that at the time that these events took place it had a practice when a further assessment was granted to a party, of trying to have the claimant examined by the same medical assessor as had first examined him. If the original medical assessor could not provide an appointment within a timeframe which it regarded as reasonable, that practice would give way to another medical assessor in an appropriate speciality being allocated. 40 The reasons for such a practice are obvious. In order to carry out an assessment, a medical assessor would often have to read a considerable quantity of documents. If a further assessment became necessary, the original medical assessor would be in the best position to provide an assessment expeditiously. That advantage, however, would give way in circumstances where an early appointment could not be obtained with the original assessor. 41 It is also tolerably clear that at the time of these events, the MAA had a practice that where an appointment had been made with a medical assessor and a claimant without notification or good reason, failed to attend that medical assessor in accordance with the appointment, a further appointment would be made with the same medical assessor. 42 The reasons for that practice are also obvious. In preparation for an appointment, the nominated medical assessor would have read a considerable number of documents. That work would be wasted and time would be lost if another medical assessor were appointed. Such a practice also discouraged "doctor shopping" in that claimants would be aware that if they did not attend an appointment with the nominated medical assessor, a further appointment would be made with that same assessor. 43 For the purpose of these proceedings the relevant parts of the Act are as follows: "59A Protection of Medical Assessor (1) A matter or thing done or omitted to be done by a medical assessor under this Part and in the exercise of the assessor's functions does not, if the matter or thing was done or omitted in good faith, subject the assessor personally to any action, liability, claim or demand …" "60 Medical Assessment Procedures (1) A medical dispute may be referred to the Authority for assessment under this Part by either party to the dispute or by a court or claims assessor. (2) The Authority is to arrange for the dispute to be referred to one or more medical assessors." "61 Status of Medical Assessments (1) The medical assessor or assessors to whom a medical dispute is referred is or are to give a certificate as to the matters referred for assessment. (2) Any such certificate as to a medical assessment matter is conclusive evidence as to the matters certified in any court proceedings or in any assessment by a claims assessor in respect of the claim concerned." 44 The provisions of s 62 have already been set out. 45 The Court was referred to the following objects of the Act in s 5: "5 Objects of Act (1) The objects of this Act are as follows: (a) To encourage early and appropriate treatment and rehabilitation to achieve optimum recovery from injury sustained in a motor accident, and to provide appropriately for the future needs of those with ongoing disabilities, (b) To provide compensation for compensable injury sustained in motor accidents and to encourage the early resolution of compensation claims, … (d) To keep premiums affordable, recognising that third-party bodily insurance is compulsory for all owners of motor vehicles registered in New South Wales. …"

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Submissions 46 The plaintiff submitted that the revocation of the appointment of Dr Buckley as a medical assessor by the MAA in its letter of 24 September 2008 involved a breach of natural justice and as such was liable to be set aside. The plaintiff submitted that if that proposition were correct, there had been no valid referral of a medical dispute to Dr Hodgkinson and consequently she had no power to issue the certificates that she purported to on or about 17 November 2008. 47 The start point for the plaintiff's analysis is the nomination of Dr Buckley pursuant to s 60(2) of the Act as a medical assessor by the MAA in its letter of 15 August 2008. The plaintiff submitted that this involved an exercise of the s 60(2) power even though this situation had been brought about by the defendant's successful application under s 62(1) of the Act. This part of the plaintiff's submissions was not disputed. 48 The plaintiff submitted that the referral to Dr Buckley as a medical assessor by the MAA in its letter of 15 August 2008 created a legitimate expectation in him that he would in due course be examined by Dr Buckley and that Dr Buckley would provide favourable certificates. That legitimate expectation was engendered not only by that referral, but by the fact that the applicant had originally been referred to Dr Buckley as a medical assessor in October 2006 and that Dr Buckley had provided certificates in January 2007 which had advantaged the plaintiff in that they indicated a whole of person impairment greater than 10 percent. The plaintiff also relied upon the MAA practice of referring a further assessment where possible to the original medical assessor. 49 In support of that proposition the plaintiff referred to clause 11.14 of the guidelines which allowed a party to apply to the Proper Officer of the MAA to be reallocated to a different medical assessor in certain circumstances. This, the plaintiff submitted, confirmed that the guidelines expressly contemplate that a party may have a real and substantial interest in the identity of a particular medical assessor. 50 The plaintiff submitted that the revocation of the referral to Dr Buckley and the subsequent referral to Dr Hodgkinson as medical assessor involved a breach of natural justice in two respects. The first breach arose because no warning had been given by the MAA to the plaintiff that it was contemplating such a course. If the plaintiff had been made aware of this, he could have made submissions such as those suggested in the affidavit of Mr Capolupo, as to why the referral to Dr Buckley should not be revoked. He was denied that opportunity. The effect of the MAA letter of 24 September 2008 was a final decision revoking the referral to Dr Buckley and referring the matter to Dr Hodgkinson. 51 The second respect in which the plaintiff submitted there was a breach of natural justice was that he was not made aware of the contents of the letter of 12 September 2008 from the second defendant's solicitors to the MAA. That letter, the plaintiff submitted, made serious allegations of impropriety against him of which he was unaware, was unable to answer and which may have influenced the decision of the MAA. The plaintiff submitted that in accordance with the statements of principle in Kioa v West (1985) 159 CLR 550 and Applicant Veal of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 72; (2005) 80 ALJR 228 he was entitled to be advised of these allegations. 52 The plaintiff submitted that the power conferred by s 60(2) of the Act to refer or to revoke the referral of a claimant to a medical assessor was one which had the capacity to adversely affect the plaintiff's interests or expectations. Since there was nothing in the Act to suggest that procedural fairness was excluded, it followed that the exercise of the s 60(2) power was conditioned by the principles of procedural fairness and natural justice. 53 The proposition was put this way in oral submissions: "I am not doubting they have power. What we say is that in the course of the exercise of that power they didn't accord us procedural fairness and the matters we rely on, what we say is we should have been advised in advance that they proposed to do it and as part of that being told or given a copy of the letter from the second defendant. I just want to be clear about this. I don't know what the practice is in this body as to why practitioners don't send each other letters, it is not my position to opine on it, but there wouldn't be any legal complaint about it if, for example, nothing had happened, the Authority just said still go to Dr Buckley, thanks very much, because we wouldn't have any authority to complain. As it turns out, the Authority had decided to make a decision we say adverse to us, that is, cancel referral to Dr Buckley, refer to Dr Hodgkinson. At the time in support of a request to do that there was an allegation, quite serious in nature, made against us that we weren't told about. We say we are entitled to have been told about that. We also say in this context we were entitled to be heard as to why it should go to Dr Buckley." (T.14.16) "In terms of the relief we seek and where we are, if there was a breach of procedural fairness in the cancellation of Dr Buckley and the referral to Dr Hodgkinson the consequence is under subs 60(2) that power was not exercised. If that power was not exercised Dr Hodgkinson did not have authority to issue a certificate, hence we seek to quash the certificate." (T.15.7) 54 The plaintiff submitted that the MAA in revoking the referral to Dr Buckley as medical assessor had failed to have regard to the objects of the Act in subs 5(1)(a) and (b). The plaintiff submitted that Dr Buckley, being the medical assessor who had originally examined and certified the plaintiff, would have been better able to provide further certificates in a more timely manner than any other medical assessor. The plaintiff submitted that the MAA did not appear to have taken this into account when making its decision in September 2008 to revoke the referral to Dr Buckley and refer the plaintiff's assessment to Dr Hodgkinson. 55 The plaintiff submitted that the decisions in Kioa v West and Veal v Minister for Immigration and Multicultural and Indigenous Affairs provided the underpinning for his submissions. 56 In particular the plaintiff relied upon the oft quoted passage by Mason J in Kioa at 582: "It is a fundamental rule of the common law doctrine of natural justice expressed in traditional terms that, generally speaking, when an order is to be made which will deprive a person of some right or interest or the legitimate expectation of a benefit, he is entitled to know the case sought to be made against him and to be given an opportunity of replying to it. The reference to "right or interest" in this formulation must be understood as relating to personal liberty, status, preservation of livelihood and reputation, as well as to proprietary rights and interests. The reference to "legitimate expectation" makes it clear that the doctrine applies in circumstances where the order will not result in the deprivation of a legal right or interest. Take, for example, an application for a renewal of a licence where the applicant, though he has no legal right or interest, may nevertheless have a legitimate expectation which will attract the rules of natural justice. In Salemi [No 2] Barwick CJ expressed the view that the expression "legitimate expectation" adds little, if anything, to the concept of a right. However, later decisions demonstrate that the concept of "legitimate expectation" extends to expectations which go beyond enforceable legal rights provided that they are reasonably based. The expectation may be based on some statement or undertaking on the part of the authority that makes the relevant decision. In the view of some members of the Court in Salemi [No 2] the "amnesty" constituted an example of such an undertaking. Alternatively, the expectation may arise from the very nature of the application, as it did in the case of the application for a renewal of a licence in FAI or from the existence of a regular practice which the person affected can reasonably expect to continue. The expectation may be that a right, interest or privilege will be granted or renewed or that it will not be denied without an opportunity being given to the person affected to put his case. It has been said on many occasions that natural justice and fairness are to be equated and it has been recognized that in the context of administrative decision-making it is more appropriate to speak of a duty to act fairly or to accord procedural fairness. This is because the expression "natural justice" has been associated, perhaps too closely associated, with procedures followed by courts of law. The developing application of the doctrine of natural justice in the field of administrative decision-making has been very largely achieved by reference to the presence of characteristics which have been thought to reflect important characteristics of judicial decision-making."

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Consideration 57 The start point for considering the plaintiff's submissions is the statutory power upon which they are based, i.e. s 60(2) of the Act. I would characterise the function of that section as purely administrative rather than judicial. As such the authorities suggest that generally speaking, no obligation to provide reasons for the exercise of the power can be imported from the general law. The justification for an obligation to give reasons is derived from the right of appeal granted in relation to the exercise of a judicial power. As was said by Basten JA in Campbelltown City Council v Vegan [2006] NSWCA 284 at [106] the decision in Public Service Board v Osmond (1986) 159 CLR 656 "remains the law in this country". 58 In Riverina Wines Pty Limited v Registrar of the Workers Compensation Commission of NSW [2007] NSWCA 149 the similar position of the Registrar or his or her delegate in the regime established by the Workplace Injury Management and Workers Compensation Act 1998 (s 327) was considered by the Court of Appeal. It was held that there was no need for reasons in respect of a decision which allowed an application to appeal to proceed. The reasoning relied on was that such a decision did not finally determine rights. What was being done was to allow the matter to go forward to a body that did make a final determination (the Medical Appeal Panel). 59 It seems clear that the power exercised by the MAA in s 60(2) is of the same kind. It does not finally determine any rights but is merely a step which enables the matter to go forward to a body that does make a final determination, i.e. the medical assessor. 60 In that context I do not accept the plaintiff's submission that clause 11.14 of the guidelines contemplates that a party may have a real and substantial interest in the identity of a particular medical assessor. What is clear from the terms of clause 11.14 is that in certain circumstances a party may object to a referral to a particular medical assessor as unsuitable and ask to be reallocated to another. This is very different to a right or expectation of being allocated to a specific medical assessor. 61 The basis for the request for reallocation under clause 11.14 is the unsuitability of the nominated medical assessor, not the perceived advantages of another assessor. The right or expectation is deliberately expressed in a negative sense. It refers in terms to the rejection of a medical assessor as unsuitable. Accordingly, the limited right provided by 11.14 is not analogous to an appeal situation such as was referred to by Basten JA in Vegan. 62 The next question is whether the allocation of a medical assessor under s 60(2) of the Act operates to "deprive a person of some right or interest or the legitimate expectation of a benefit" as referred to by Mason J in Kioa. In my opinion it does not. 63 It is clear from a reading of the Act that the only legitimate expectation which a claimant such as the plaintiff could have under s 60(2), is that he would be referred to an independent medical assessor appropriately qualified to assess his particular medical issue. There could be no legitimate expectation that a referral to a particular medical assessor would confer some benefit on the plaintiff. The fact that at an earlier point in time the plaintiff may have been seen by a medical assessor, who provided certificates which favoured his interest, could not as a matter of fact create an expectation that a further referral to that medical assessor would again produce favourable certificates. 64 There is no doubt that the plaintiff (and I suspect his legal advisers) had a perception that a referral to Dr Buckley would confer some advantage on him and that he would again obtain favourable certificates or would have a better chance of obtaining favourable certificates. 65 Apart from that perception being insulting to Dr Buckley, it has no justification in fact. At the heart of the Act is the independence of the medical assessors and the availability of their expertise in the form of certificates to guide claims assessors and courts. In this case the need for a further assessment only arose because new material had been provided by the second defendant. A proper officer of the MAA determined that the new material was of such a kind as required a further assessment of the plaintiff. There is no basis for suggesting that Dr Buckley more than any other medical assessor was likely to reject that new material and adhere to the opinion expressed in his original certificate. Such a suggestion is entirely speculative. 66 Implicit in the plaintiff's submissions on this issue is the proposition that not having Dr Buckley conduct his further medical assessment constituted a loss of "a legitimate expectation of a benefit". For the reasons set out above, there was in fact no loss of a benefit and far from being legitimate the expectation was at best misconceived. 67 This then leaves as a basis for the supposed legitimate expectation, the practice of the MAA of trying to refer further medical assessments to the original assessor and the referral to Dr Buckley by the MAA in its letter of 15 August 2008. 68 The practice of the MAA of trying to refer further medical assessments to the original assessor was only that - a practice. It was subject to the availability of the original assessor. Priority was to be given to an appointment being obtained which in the opinion of the MAA would allow for a timely consultation. 69 The referral to Dr Buckley in the MAA letter of 15 August 2008 could not create a legitimate expectation of a benefit for a number of reasons. As indicated, there was no proper basis for an expectation that the allocation to one particular assessor as distinct from another would confer a benefit on the plaintiff. In this particular case, however, the referral to Dr Buckley in the letter of 15 August 2008 had been obtained as a result of a somewhat blatant attempt to manipulate the MAA's process of allocating medical assessors. 70 That this was so is clear from the correspondence and the events leading up to that letter. As indicated, neither the Act nor the guidelines give a right or legitimate expectation of a referral of a claimant to a particular medical assessor. The guidelines provide an avenue whereby objection can be taken to a medical assessor on the grounds that the medical assessor is unsuitable and reallocation to another medical assessor can be sought. This was not what the plaintiff's legal advisers did or sought. When the plaintiff had been properly referred to Dr Lethlean as a medical assessor, he did not attend the appointment (presumably) in the hope of either getting the medical assessor of his choice (i.e. Dr Buckley) or another medical assessor. The subsequent referral to Dr Buckley in those circumstances could not have created any legitimate expectation in the plaintiff when the earlier referral to Dr Lethlean had been treated so cavalierly by him and his legal advisers. 71 The plaintiff submitted that the referral to Dr Hodgkinson by the MAA letter of 24 September 2008 involved a denial of natural justice. I do not agree. Leaving aside the question of whether a referral to Dr Buckley constituted a "benefit" to the plaintiff of which he was deprived, the plaintiff was given adequate opportunity to make submissions. 72 It is not disputed that the referral to Dr Lethlean in the MAA letter of 25 June 2008 was a proper referral under s 60(2) of the Act. The plaintiff's legal advisers made two complaints in relation to that referral. The letter of 11 July put forward a basis for why the referral should be made to Dr Buckley. This was rejected by the MAA in its letter of 30 July. On 5 August the plaintiff's legal advisers put forward another submission to the effect that Dr Lethlean was unsuitable because those solicitors had complained about him in relation to another matter. That letter was sent after those solicitors had directed the plaintiff not to attend Dr Lethlean on 5 August. 73 Until that point in time the solicitors for the second defendant had not entered the debate. It was only after the MAA appeared to have given in to the importuning of the plaintiff's solicitors by referring the plaintiff to Dr Buckley, that the solicitors for the second defendant by their letter of 12 September, complained about the suitability of that referral. 74 Leaving aside the question of whether and when the second defendant's letter of 12 September should have been sent to the solicitors for the plaintiff, by 24 September when the MAA sent its letter, the plaintiff's legal advisers had not only had ample time to put forward their arguments concerning the further referral to Dr Buckley, they had done so on two occasions. On those two occasions they had raised their principal arguments, i.e. the benefits associated with a referral to the original assessor and an alleged ground of unsuitability on the part of Dr Lethlean. 75 The MAA letter of 24 September clearly took into account the submissions made on behalf of the plaintiff and on behalf of the second defendant and sought to resolve the issue. That letter makes it clear that the referral to Dr Buckley by its letter of 15 August did involve an "administrative error". While that referral may have had regard to the "practice" of endeavouring to make further referrals to the original medical assessor, it was contrary to the "practice" which the MAA had of referring claimants to the same medical assessor where those claimants had without good reason failed to attend an appointment. 76 To resolve the issue which had arisen between the second defendant and the plaintiff, and to progress the matter so that the plaintiff's claim could be dealt with expeditiously, the MAA took the entirely sensible and reasonable course of making a referral for the further assessment of the plaintiff's condition to Dr Hodgkinson, another doctor on its medical panel in relation to whom there had been no dispute. To this point in time no basis has been put forward by the plaintiff as to why Dr Hodgkinson was not suitable as a medical assessor for his further assessment. 77 I can see no denial of natural justice in that process. 78 The plaintiff's submission that his referral to Dr Buckley by the letter of 15 August meant that this decision was in some way set in concrete is difficult to understand. That submission and the submission that the referral to Dr Buckley could only be changed once notice had been given of that intention and the parties had been given the opportunity of making submissions involves a distortion of the function performed by s 60(2) of the Act. As indicated above, s 60(2) involves no more than the taking of an administrative step to enable a final decision to be made by another entity at a later point in time. 79 The difficulty with the plaintiff's submissions can be put another way. It is clear that independent medical assessments under the Act are not, and were not intended to be, an adversarial process. This is clear from the way they are carried out and the function which they perform within the scheme of the Act. 80 Medical assessors are appointed by the MAA under s 59 of the Act. The medical assessors are independent of all parties to a medical dispute. The guidelines provide that legal representatives may not be present during a medical assessment unless authorised by the proper officer of the MAA (clause 12.2). The medical assessor determines the procedure by which the assessment is conducted (clause 13.1). The assessor's role is that of an independent decision maker (clause 13.2.1). 81 It is inconsistent with the structure of the Act that a claimant might be likely to obtain a more favourable decision from one medical assessor than another. It is certainly inconsistent with the structure of the Act for a claimant to demand or require that the MAA allocate a particular medical assessor in preference to any other and to refuse to attend an appointment if that demand was not met. There is no provision in the Act or guidelines which enables a party to attempt to secure an assessor which that party regards as "favourable". Despite not expressly saying so, that seems to be the effect of the plaintiff's submissions. 82 I have difficulty in seeing how a decision of the MAA under s 60(2) of the Act to refer the plaintiff for further assessment to Dr Hodgkinson and thereby cancel the appointment with Dr Buckley, is a decision which can be the subject of judicial review. As previously indicated, where medical assessors are appointed under the Act and guidelines to fulfil the role of independent arbiters of medical disputes, it cannot be said that the plaintiff had a relevant "expectation" or "interest" in the referral of the dispute to a particular assessor. 83 The exception, of course, is that provided for by clause 11.14 of the guidelines. Accordingly, unless a particular medical assessor is or might reasonably be thought to be "unsuitable" (and no such submission has been made in relation to Dr Hodgkinson), it is neither necessary nor appropriate that a referral of a dispute to a medical assessor be part of an adversarial process. 84 While the MAA may (should it wish to do so) entertain representations or submissions from the parties concerning the referral of a dispute to a medical assessor, it has no duty or obligation to do so other than in the circumstances contemplated by clause 11.14. 85 The plaintiff's submission that the revocation of the referral to Dr Buckley and the referral to Dr Hodgkinson by the MAA failed to have regard to the objects of the Act is a bold one. Any delay and additional expense was solely due to the conduct of the plaintiff's legal advisers in directing him not to attend the appointment with Dr Lethlean. In any event, by 2 October 2008 (the date of the proposed appointment with Dr Buckley), twenty one months had passed since his original referral and it is most unlikely that Dr Buckley would have had any recollection of either the plaintiff or the documentation which he had originally seen. This submission should be rejected. 86 The plaintiff's submission that he was denied natural justice and procedural fairness by not being made aware of the allegations in the second defendant's letter of 12 September 2008, depends upon the nature of the right or expectation under consideration. It is clear from the facts of Kioa and Veal that the protagonists in those cases had legitimate expectations and that the decisions to deprive them of the benefit of those expectations could have been influenced by the accusations made against them. That is not the situation here. 87 As indicated, the plaintiff was not deprived of a "benefit", nor did he have a legitimate expectation of the receipt of any such benefit. It is also highly unlikely that the exercise of the s 60(2) power required the observance of the principles of natural justice as a condition of its valid exercise. Alternatively, if the observance of the principles of natural justice did condition the exercise of the power, it is one of those situations described by Brennan J in Kioa as "in some circumstances the content of those principles may be diminished (even to nothingness) to avoid frustrating the purpose for which the power was conferred" (Kioa at 615). 88 That is sufficient to answer the submission. There are, however, other considerations. It is not at all clear that the allegation in the letter of "an abuse and manipulation of the [medical assessment] process" was directed at the plaintiff rather than his solicitors. In that regard it is quite clear from the concession made in oral submissions and from the correspondence that the plaintiff's failure to attend Dr Lethlean was not a matter "personal to him" but was the consequence of legal advice received from his solicitors. 89 The final matter is the exercise of discretion. An application for judicial review under s 69 of the Supreme Court Act 1970 involves an exercise of discretion. Just because a party establishes a basis for relief does not mean that the relief sought will be automatically granted. On the facts of this case, even if I were persuaded that the plaintiff had an entitlement to the relief sought, on discretionary grounds I would not grant it. 90 My reasons are these. The problem which has arisen is entirely of the plaintiff's own making. The referral to Dr Lethlean was within power and has not been challenged. The plaintiff chose not to attend that appointment for no good reason. This set in train the sequence of events which has culminated in these proceedings. 91 The basis of the plaintiff's application is a misconceived perception that a referral to Dr Buckley would confer some benefit or advantage on him. Such a perception is contrary to the structure of the Act and if it were correct, it would strike at the very purpose of the Act and guidelines. The concept of a favourable medical assessor is contrary to the philosophy of the Act. What the Act and guidelines provide for is an independent assessment by a suitably qualified assessor. 92 I also have difficulty with the relief sought by the plaintiff. Even if the declarations sought were made and the decision and certificate were quashed, the practical result for the plaintiff would be a further decision by the MAA under s 60(2) for a referral to an independent medical assessor. This is exactly what the plaintiff had when he was referred for further assessment to Dr Hodgkinson. In other words, the practical result in terms of the relief which he is seeking is no different to that which was provided by the letter from the MAA of 24 September.

At a glance

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Judgment (23 paragraphs)

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Cases Cited (6)

Cited By (6)