Interrelationship of s 62 and Ch 14
26As is apparent from the terms of s 62, there are two distinct steps involved in a matter being referred for further medical assessment. The first is contained within s 62(1)(a), namely, that it must be "only on the grounds of ... additional relevant information". Clause 14.5 of the Guidelines specifies that when making a determination under s 62(1)(a), the Proper Officer "shall have regard to" three matters: (1) the application and any reply; (2) any other applications and replies and/or certificates issued under s 61 on the medical dispute; and (3) the objects of the Act and the objects of the MAS.
27If there is "additional relevant information about the injury" then referral for further medical assessment is precluded "unless the deterioration or additional information is such as to be capable of having a material effect on the outcome of the previous assessment": s 62(1A). Clause 14.6 of the Guidelines defines the word "material" in s 62(1A) as further additional information capable of altering the outcome of a dispute about, relevantly, permanent impairment from not greater than 10 per cent to greater than 10 per cent whole person impairment or vice versa.
28Clause 14.7 then provides that if the Proper Officer is not satisfied of the requirement in s 62(1A), then the Proper Officer may dismiss the application.
29The question which has been argued on the appeal is whether those two steps constituted a jurisdictional fact which needed to be established, on an objective basis, before a referral could be made. Mr Henderson submitted that both aspects were jurisdictional facts which must objectively be found to exist. QBE submitted that each step involved an evaluative task, which was amenable to judicial review for error of law and were not jurisdictional facts. Both parties relied upon the judgment of this Court in Woolworths v Pallas Newco Pty Ltd [2004] NSWCA 442; 61 NSWLR 707.
30In Woolworths v Pallas Newco, Spigelman CJ undertook an analysis of the factors that indicate whether an aspect of administrative decision making involved a jurisdictional fact. Relying on that decision, Mr Henderson relied upon prohibitive language in s 62, namely, "but only on the grounds" and "the matter may not be referred" in s 62(1)(a) and s 62(1A) respectively as indicative that the requirements of s 62 were jurisdictional facts. In this regard, Spigelman CJ, at [32], had observed in Woolworths v Pallas Newco that the terminology of 'prohibition' "has a level of force more consistent with a finding of jurisdictional fact than with the conferral of an ability to err within jurisdiction".
31QBE, for its part, relied upon the observation of Spigelman CJ in Woolworths v Pallas Newco at [56], that:
"Where issues of fact and degree arise it will often be the case that these are matters which a decision-maker is intended by Parliament to determine and, accordingly, any error is an error within jurisdiction rather than an error going to jurisdiction."
32Spigelman CJ further observed, at [57], that certain classifications in the Planning Act under consideration in that case were jurisdictional, whereas others were not. His Honour continued, at [58]:
"For example, an environmental planning instrument may require the assessment of a wide range of matters of considerable complexity involving the formation of value judgments. Such a decision-making process is unlikely to involve a jurisdictional fact. (See, e.g. the High Court's endorsement in Australian Heritage Commission v Mount Isa Mines (1997) 187 CLR 297 at 303-304 of the judgment of Black CJ in Australian Heritage Commission v Mount Isa Mines (1995) 60 FCR 456 at 465-466, an approach also affirmed in Canberra Tradesmen's Union Club Inc v Commissioner for Land and Planning (1999) 86 FCR 266 at 272.)"
33His Honour, at [60], then noted that the fact that an evaluative judgment was required in determining the existence of facts did not necessarily mean that the fact was not jurisdictional. His Honour provided a number of examples. Thus, the question whether the development was "likely to significantly affect threatened species" was found to be jurisdictional in Timbarra Protection Coalition Inc v Ross Mining NL (1999) 46 NSWLR 55. Whether a particular service was "necessary" for the purpose of enabling a supply of a broadcasting service was also held to be jurisdictional in Foxtel Management Pty Ltd v Australian Competition and Consumer Commission [2000] FCA 589; 173 ALR 362 at [123]-[124]. Likewise, the question whether an industry was "likely ... to produce conditions which are, or may become, offensive or repugnant to the occupiers or users of land" was found to be jurisdictional: Enfield City Corporation v Development Assessment Commission [2000] HCA 5; 199 CLR 135.
34Spigelman CJ concluded, at [61], that it was the "overall statutory context" that was determinative as to whether:
"... Parliament intended the existence of the fact to both objectively exist and be essential, notwithstanding the element of fact and degree, or even of judgement, that was required in the process of determining whether or not the relevant fact existed."
35In the case under consideration in Woolworths v Pallas Newco, Spigelman CJ was of the view that the most significant indicator pointing towards the classification as not being a jurisdictional fact arose from the degree of inconvenience if a consent valid on its face could not be relied upon.
36In Enfield City Corporation v Development Assessment Commission (to which Spigelman CJ referred) the plurality, Gleeson CJ, Gummow, Kirby and Hayne JJ, stated, at [28]:
"The term 'jurisdictional fact' (which may be a complex of elements) is often used to identify that criterion, satisfaction of which enlivens the power of the decision-maker to exercise a discretion. Used here, it identifies a criterion, satisfaction of which mandates a particular outcome. Section 35(3) forbids the relevant authority granting a provisional development plan consent to a 'non-complying' development unless, in a case such as the present, the Minister and the Council concur in the granting of the consent. The determination of the question whether Collex proposed a 'non-complying' development, which turned upon the application of the criterion of 'special industry', was a condition upon the existence of which there operated the obligation that the Commission not grant consent."
37The question as to what constitutes a jurisdictional fact has been the subject of considerable attention in the High Court in recent years. As is apparent from the High Court authorities, the statement of principle as to what constitutes a jurisdictional fact is reasonably consistent. However, the individual members of the Court tend to divide on when a particular statutory power involves a jurisdictional fact. This was exemplified in Plaintiff M70 v Minister for Immigration and Citizenship [2011] HCA 32; 244 CLR 144. In that case, the Court was concerned with the validity of a declaration made by the Minister under the Migration Act, s 198A(3)(a), which relevantly provided:
"The Minister may:
(a) declare in writing that a specified country:
(i) provides access, for persons seeking asylum, to effective procedures for assessing their need for protection; and
(ii) provides protection for persons seeking asylum, pending determination of their refugee status; and
(iii) provides protection to persons who are given refugee status, pending their voluntary repatriation to their country of origin or resettlement in another country; and
(iv) meets relevant human rights standards in providing that protection; and
(b) in writing, revoke a declaration made under paragraph (a)."
38Under this arrangement, the Minister sent two irregular maritime arrivals (Plaintiff M70/2011 and Plaintiff M106/2011) to Malaysia for processing of their refugee applications. The plaintiffs challenged the decision to do so on the basis that the matters in s 198A(3)(a)(i)-(iv) were objective jurisdictional facts that did not exist in respect of Malaysia.
39French CJ explained what was meant by a "jurisdictional fact". His Honour stated, at [57]:
"The term 'jurisdictional fact' applied to the exercise of a statutory power is often used to designate a factual criterion, satisfaction of which is necessary to enliven the power of a decision-maker to exercise a discretion. The criterion may be a 'complex of elements'. When a criterion conditioning the exercise of statutory power involves assessment and value judgments on the part of the decision-maker, it is difficult to characterise the criterion as a jurisdictional fact, the existence or non-existence of which may be reviewed by a court. The decision-maker's assessment or evaluation may be an element of the criterion or may be the criterion itself. Where a power is expressly conditioned upon the formation of a state of mind by the decision-maker, be it an opinion, belief, state of satisfaction or suspicion, the existence of the state of mind itself will constitute a jurisdictional fact. If by necessary implication the power is conditioned upon the formation of an opinion or belief on the part of the decision-maker then the existence of that opinion or belief can also be viewed as a jurisdictional fact."
40His Honour observed, at [58], that the question was one of statutory construction. On the basis that the language of each of the subparas (i)-(iv) of s 198A(3)(a) indicated the need for "ministerial "evaluative judgment" his Honour continued:
"... consideration of the domestic law of the proposed receiving country and its binding commitments and obligations under international law is mandated. That consideration will necessarily be an evaluative task. The words 'provide', 'access', 'effective procedures' and 'meets relevant human rights standards' all point in that direction. The function conferred upon the Minister is an executive function to be carried out according to law. Absent clear words, the subsection should not be construed as conferring upon courts the power to substitute their judgment for that of the Minister by characterising the matters in sub-pars (i) to (iv) as jurisdictional facts." (citation omitted)
41French CJ, at [59], accepted the argument against the Minister that it was necessary for the Minister in the formation of his evaluative judgment to properly construe the provisions of the section. The proper construction was a necessary condition of the validity of the Minister's declaration. French CJ considered that, "properly construed [the matters set out in s 198A(3)(a)] define the content of the declaration which the Parliament has authorised". As his Honour pointed out, the misconstruction of the criterion would be a jurisdictional error: see Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; 206 CLR 323.
42Gummow, Hayne, Crennan and Bell JJ (the plurality) noted, at [107], that the plaintiff's primary position was that each of the four factors specified in s 198A(3)(a) were jurisdictional facts "in an objective sense", that is, "a fact that must exist, objectively, before an administrative jurisdiction to exercise a power is enlivened". Their Honours, at [109], rejected the Minister's position that the factors specified in (i)-(iv) were not jurisdictional facts. They stated that to read the section in that way would mean that it was validly engaged whether the Minister bona fide sought or believed that the relevant criteria were met. Their Honours considered such a construction would pay insufficient regard to the section's text, context and evident purpose. As their Honours stated, at [109], "[t]ext, context and purpose point to the need to identify the relevant criteria with particularity".
43The importance of identifying whether a statutory provision prescribes a jurisdictional fact or facts as a condition of its exercise in reviewing a decision of a decision maker under the section. If the matters specified in the particular provision are jurisdictional facts, the court is itself required to determine whether the jurisdictional facts exist. Otherwise, in order for a party to obtain judicial review, error of law must be established.
44QBE submitted that the question as to whether s 62 concerned itself with jurisdictional facts had been determined by this Court in Roger v De Gelder [2012] NSWCA 167; 80 NSWLR 594. In that case, the respondent, Mr De Gelder, was injured in a motor vehicle accident by a vehicle driven by the appellant, Mr Rodger. Mr De Gelder made a claim for damages under the Act and was assessed as having whole person impairment greater than 10 per cent which entitled him to damages for non-economic loss under s 131 of the Act. A Medical Panel confirmed this assessment on review. Mr Rodger made an application under s 62 of the Act for a further medical assessment. The Proper Officer granted that application and referred the matter for further assessment. At the further medical assessment, Mr De Gelder was assessed as having a whole person impairment of less than 10 per cent, which precluded damages for non-economic loss. Mr De Gelder sought review of the further assessment but this was refused.
45Mr De Gelder commenced judicial review proceedings in the Supreme Court to challenge the validity of both the determination of the Proper Officer to refer his claim for a further review and the determination made on the further assessment. He submitted that the Proper Officer committed jurisdictional error by, inter alia, considering irrelevant material and by failing to consider relevant material and sought relief by way of declarations and certiorari to quash the decisions. Mr De Gelder was successful and Mr Rodger appealed that decision, with leave, to the Court of Appeal.
46On appeal, Mr Rodger submitted that the primary judge (Davies J) erred in finding that the Proper Officer asked herself the wrong question ("wrong question issue"); and in exercising his discretion in failing to have regard to the fact that Mr De Gelder's participation in the further assessment process and sought a review of that assessment ("the discretionary issue"). Relying on the decision in Singh v Motor Accidents Authority of NSW [2010] NSWSC 550, Mr Rodger also submitted that any action taken by a Proper Officer under s 62 involves a procedural task and is not amenable to judicial review.
47The Court upheld Mr Rodger's submission on the wrong question issue but rejected his submissions on the discretionary issue and his submissions based on Singh regarding the procedural nature of the Proper Officer's role, which are set out at [37]-[38] and [44] above. Consequently, the Court upheld the appeal.
48Macfarlan JA, in his additional reasons in that case, at [113], stated:
"The decision to refer a claimant for a further medical assessment is made by an administrative officer and, whilst not a purely procedural step, is nevertheless not the ultimate step in the relevant process (that being the further medical assessment itself). Bearing this in mind, my view is that on the proper construction of s 62(1A), the capacity of the additional information to affect a further medical assessment is a matter for the subjective satisfaction of the Proper Officer. It is not necessary that that capacity exist as a matter of objective fact." (emphasis added)
49Although I found it unnecessary to determine the issue whether the Proper Officer's decision to refer a matter for further assessment involved jurisdictional facts, the matter is directly in issue in this case. I agree with the remarks of Macfarlan JA. Further, this Court has now decided that s 62 is not concerned with jurisdictional facts: see QBE Insurance (Australia) Ltd v Miller [2013] NSWCA 442. I agree with the Court's decision in that matter and in particular with the analysis of Basten JA at [30]-[35].
50It follows, therefore, that the principal argument advanced by the appellant on the appeal must be rejected.
51That leaves the question whether there was error of law in the Proper Officer's determination in rejecting the application that the matter be referred for further medical assessment. Section 62 precludes a referral unless that additional information has a particular quality, namely, that it be "capable of having a material effect on the outcome of the previous assessment". The Guidelines provide that if the Proper Officer is not satisfied of that matter, the application may be dismissed. Importantly, the Guidelines do not require satisfaction of something. Rather, they specify the outcome if the Proper Officer is not satisfied of something, namely, the matter referred to in s 62(1A).
52It is not clear as to the basis upon which the primary judge approached his task, as he appeared to have undertaken his own review of the medical reports to determine whether there was "additional relevant material". QBE recognised this difficulty, but, more importantly, did not identify where his Honour had identified any error of law. Nor, in my opinion, did QBE identify an error of law in the determination of the decision maker. Leaving that aside, however, the question for the Proper Officer was to determine was the application made by QBE for a further medical assessment. As Meagher JA has identified at [105], that application was in relation to the assessment of the degree of whole person impairment and whether Mr Henderson's claimed Post-Traumatic Stress Disorder, that had been caused by the accident. The Proper Officer addressed those matters and determined whether those matters were such "as to be capable of having a material effect on the outcome of the previous assessment".
53It follows, in my opinion, that the trial judge erred in making the declaration and in setting aside the determination of the Proper Officer.
54That leaves the question of costs. If I am correct in the conclusion that the primary judge erred in setting aside the Proper Officer's determination, then his Honour's costs order must also be set aside. Accordingly, the costs issue does not arise. I will, however, briefly state my reasons on that question.
55The primary judge declined to make an order under the Suitors' Fund Act on the basis that a person exercising power under s 62 did not constitute "a court" for the purpose of the Act. The relevant provisions of that Act are as follows:
"6 Costs of certain appeals
(1) If an appeal against the decision of a court:
(a) to the Supreme Court on a question of law or fact, or
(b) to the High Court from a decision of the Supreme Court on a question of law,
succeeds, the Supreme Court may, on application, grant to the respondent to the appeal or to any one or more of several respondents to the appeal an indemnity certificate in respect of the appeal ...
6C Payments not otherwise authorised by this Act
(1) If:
(a) a party to an appeal or other proceedings incurs or is liable to pay costs in the appeal or proceedings,
(b) the party is not otherwise entitled to a payment from the Fund in respect of the costs, and
(c) the Director-General is of the opinion that a payment from the Fund in respect of the costs, although not authorised by section 6, 6A or 6B, would be within the spirit and intent of those sections,
the Director-General may, with the concurrence of the Attorney General, pay from the Fund to the party such amount towards the costs as is assessed by the Director-General having regard to the circumstances of the case.(2) A payment under this section shall not exceed $10,000."
56In my opinion, his Honour was correct in finding that a determination by a Proper Officer under s 62 did not constitute a decision of "a court".
57There is a further problem with the application of s 6 in the circumstances of this case, in that the proceedings before the primary judge were not by way of an appeal, but were by way of judicial review pursuant to the Supreme Court Act, s 69. Judicial review proceedings would, however, fall within the meaning of "other proceedings" within the meaning of s 6C.
58However, s 6C is not a matter in respect of which the court may make an order. Its terms are clear, if the matters specified in s 6C(1)(a), (b) or (c) are satisfied, the Director General has a discretion whether to pay an amount from the Suitors' Fund. That discretion is to be exercised with the concurrence of the Attorney General. It is not a matter in respect of which the Court may make an order, direction, or declaration. Accordingly, had it been necessary to do so, I would have rejected this ground of appeal.