IAG Limited t/as NRMA Insurance v Qin

Supreme Court of NSW|2020-02-27

Solicitors: Hall & Wilcox (Plaintiff) AJB Stevens Lawyers (First Defendant) Crown Solicitor for NSW (Submitting Appearance, Second & Third Defendants) File Number(s): 2019/290586 Publication restriction: Nil

Judgment

HER HONOUR: This is a judicial review from a decision of a claims assessor of the State Insurance Regulatory Authority of New South Wales ("SIRA").

Background

On 15 August 2014, Ms Qin was injured in a motor vehicle accident ("the accident").
On 12 July 2018, Ms Qin's solicitors lodged an application for general assessment with the Claims Assessment and Resolution Service ("CARS"). On 13 August 2018, the insurer lodged a reply to Ms Qin's application.
On 22 May 2019, SIRA advised the parties by letter that the matter had been allocated to the claims assessor for assessment. On 29 May 2019, the insurer filed and served submissions seeking a discretionary exemption of Ms Qin's claim pursuant to s 92(1)(b) of the MAC Act ("the discretionary exemption application"). This application was brought on the basis that Ms Qin had made false or misleading statements in relation to the injuries, loss or damage she allegedly suffered in the accident.
On 11 June 2019, Ms Qin's solicitor filed and served written submissions opposing the insurer's discretionary exemption application.
On 26 August 2019, the claims assessor issued his written reasons for refusing the insurer's discretionary exemption application.
I will refer to the insurer's application, Ms Qin's submissions and the claims assessor's written reasons in greater detail later in this judgment.

The statutory framework

Before I turn to consider the discretionary exemption application and the decision, it is convenient that I set out the relevant statutory framework and guidelines.
Under s 90 of the MAC Act, a party may refer a claim for damages for assessment under Pt 4.4 of the Act. Under ss 92 and 108 of the MAC Act, where there is a dispute about entitlement to or quantum of damages, the claim must be referred for assessment. Only claims which are exempt can be commenced without assessment under Pt 4.4.
The objects of the MAC Act are set out in s 5. It relevantly states: "(1) The objects of this Act are as follows: (a) to encourage early and appropriate treatment and rehabilitation to achieve optimum recovery from injuries sustained in motor accidents, and to provide appropriately for the future needs of those with ongoing disabilities, (b) to provide compensation for compensable injuries sustained in motor accidents, and to encourage the early resolution of compensation claims." … (2) It must be acknowledged in the application and administration of this Act: (a) … (b) that the law (both the enacted law and the common law) relating to the assessment of damages in claims made under this Act should be interpreted and applied in a way that acknowledges the clear legislative intention to restrict the level of non-economic loss compensation in cases of minor injuries, and (c) that: … (iii) the preparation of fully funded premiums requires a large measure of stability and predictability regarding the likely future number and cost of claims arising under policies sold once the premium is in place, and (iv) the stability and predictability referred to in subparagraph (iii) require consistent and stable application of the law."
Section 92 of the MAC Act concerns claims which are exempt from assessment. It relevantly states: "(1) A claim is exempt from assessment under this Part if: … (b) a claims assessor has made a preliminary assessment of the claim and has determined (with the approval of the Principal Claims Assessor) that it is not suitable for assessment under this Part. (2) If a claim is exempt from assessment under this Part, the Principal Claims Assessor must, as soon as practicable, issue the insurer and claimant with a certificate to that effect (enabling court proceedings to be commenced in respect of the claim concerned)."

The Guidelines

Claims assessment guidelines issued under s 69(1) of the MAC Act, and effective from 1 October 2018 ("the Guidelines"), outline the procedures to be followed by claims assessors in the assessment of claims under Part 4.4 of the Act.
Clauses 1.13 and 1.14 concern the objects of the MAC Act. They relevantly read: "1.13 The objects of CARS set out in clause 1.14 should be used as an aid to the interpretation of these Guidelines. 1.14 The objects of CARS in dealing with claims and disputes in connection with claims referred are: 1.14.1 to provide a timely, fair and cost effective system for the assessment of claims under the Motor Accidents Compensation Act 1999 that is accessible, transparent, independent and professional…"
Clauses 14.11-14.16.11 of the Guidelines make provision for discretionary exemption in as follows: "Unsuitable for assessment under section 92(1)(b) 14.11 For the purpose of section 92(1)(b), an Assessor may, in dealing with an application for general assessment and following a preliminary assessment of the claim, determine that the claim is not suitable for assessment. 14.12 An Assessor may make a preliminary determination that a claim is not suitable for assessment on their own initiative or upon application by the claimant, the insurer, or both, at any time during the course of an assessment, after providing the parties with the opportunity to make submissions on that issue and considering any such submissions. 14.13 If the Assessor determines that the claim is not suitable for assessment, the matter must be returned within 5 days of making such a determination to the PCA for approval with a brief statement of reasons. 14.14 If the PCA approves the preliminary determination under section 92(1)(b), the PCA shall issue a certificate of exemption and notification to the parties within 5 days of the return of the matter from the Assessor. 14.15 If the PCA does not approve the preliminary determination, an officer of CARS is to advise the parties within 5 days of the return of the matter from the Assessor, and forward the matter to a different Assessor for assessment within 10 days of the return of the matter from the original Assessor. 14.16 In determining whether a claim is not suitable for assessment, an Assessor and the PCA shall have regard to the circumstances of the claim as at the time of the preliminary determination including, but not limited to: … 14.16.11 whether the insurer makes an allegation that a person has made a false or misleading statement in a material particular in relation to the injuries, loss or damage sustained by the claimant in the accident giving rise to the claim. (Note: If an insurer makes an allegation of "fraud" in terms of the circumstances of the accident, the matter will be exempt under section 92(1)(a) and clause 8.11.6. If an insurer makes an allegation that a person has made a false or misleading statement in a material particular in relation to the injuries, loss or damage sustained by the claimant in the accident, the insurer may be required to provide particulars in writing of the general nature of any such allegation under clause 17.13, and an Assessor may then consider whether a matter is not suitable for assessment under clause 14.11 to 14.16, particularly in light of clause 14.16.11.)" (My emphasis)

The discretionary exemption application

On 29 May 2019, the insurer filed and served the discretionary exemption application pursuant to s 92(1)(b) of the MAC Act.
In its application, the insurer submitted that under cl 14.16.11 of the Guidelines, the matter was not suitable for assessment at CARS on the basis that Ms Qin had made false or misleading statements in a material particular in relation to the injuries, loss or damage she sustained in the accident. Those alleged false or misleading statements related to two topics: Ms Qin's injuries and disabilities from the accident, and the circumstances of the accident. I shall summarise them as follows.

Ms Qin's alleged injuries and disabilities from the accident

The insurer submitted that Ms Qin provided false and misleading statements indicating that she sustained shoulder and psychological injuries caused by the accident.
On 23 September 2014, Ms Qin, in answer to questions 25 and 26 of the claim form, answered: "25 What are your injuries from the accident? Neck Shoulders Back ?? 26 How do the injuries affect you now? PTSD Pain & Restriction of ?? Depression"
In contrast to Ms Qin's answers, however, the medical certificate of Dr Alan Wong dated 8 September 2014 contained no reference to symptoms or diagnosis in respect of the left shoulder, or to any psychological injury.
The insurer submitted that Ms Qin's insertion of PTSD, depression and injury to both shoulders into the claim form pre-dated their diagnosis by any medical practitioner. As such, the insurer sought that evidence be given as to who inserted such words, and on whose instructions or on what evidence.
The insurer submitted that CARS was not the appropriate forum for such an exercise. It requested a formal hearing in the District Court, in which sworn evidence could be given, a transcript made available and a witness be provided the protection of a certificate pursuant to s 128 of the Evidence Act, if required.

The circumstances of the accident

The insurer further submitted that Ms Qin made false or misleading statements about the circumstances of the accident, providing inconsistent statements about whether the airbags deployed and whether she was able to extricate herself from her vehicle. Those inconsistent histories are as follows: 1. On 8 September 2014, Dr Wong recorded that in the accident, the airbag from Ms Qin's vehicle deployed and after some time, she was able to exit the car herself. 2. In a signed statement dated 23 October 2014, Mr Qin, the driver of Ms Qin's vehicle at the time of the accident, stated that the airbags did not deploy and that she got out of the car and went to the footpath. 3. Dr Thomson noted that the airbags did not release in the accident. 4. Dr Anderson noted that after the accident, somebody pulled Ms Qin from the vehicle. 5. Dr Perla noted that Ms Qin stated "that she was assisted out by a passer-by". 6. Associate Professor Anthony Samuels noted that "at the time of impact, [Ms Qin] was shocked and had to be assisted out of the car." 7. Dr Mohammed Assem noted that in the accident, the "airbag facility deployed causing mild facial injury." 8. In her statement dated 15 May 2018, Ms Qin stated that "after the accident, I was shocked and had to be helped out of the car."

The insurer's submissions before the assessor on the topic of exemption

In its application to the assessor, the insurer submitted that the District Court, and not CARS, would be the appropriate forum for the hearing of the issues it raised.
The insurer noted that under cl 15.4.2 of the Guidelines, the insurer's capacity to question relevant parties at CARS is subject to the discretion of the claims assessor. The oral evidence is also not sworn, and the insurer does not have the benefit of obtaining a transcript to assist with cross-examination and submissions. The insurer submitted that it should be given the opportunity to test Ms Qin's evidence under oath and proper cross-examination, and that Ms Qin should also have the ability to seek protection against self-incrimination under s 128 of the Evidence Act, should it be required, which is also not available at CARS.
The insurer further relied upon the principles in Insurance Australia Limited t/as NRMA Insurance v Taylor [2017] NSWSC 507 ("Taylor").

Ms Qin's submissions before the assessor opposing the discretionary exemption

In her submissions before the assessor, Ms Qin referred to the comments of Campbell J in Insurance Australia Ltd (t/as NRMA Insurance) v Banos (2013) 65 MVR 312; [2013] NSWSC 1519 ("Banos"), where his Honour stated, "It is not mandatory, whenever a credit issue is raised, to decide that the claim is not suitable for assessment."
Ms Qin further referred to Insurance Australia Ltd t/as NRMA Insurance v Motor Accidents Authority of New South Wales and Mahmoud Khateib [2006] NSWSC 1448 ("Khateib"), where Rothman J referred to the amendment to the Guidelines which removed the allegation of a false or misleading statement as a ground of exemption pursuant to s 92(1)(a)-(b) as follows: "…The Authority, by removing the equivalent of criterion 7.11.10 from that part of the Guidelines that previously mandated a reference, has made express the proposition that an allegation of a false or misleading statement within the meaning of s 117 no longer necessitates the matter being referred to a court."
According to Ms Qin, the allegations of injury concerning the left shoulder, PTSD and depression were capable of being clarified by a supplementary statement, with the result that she could satisfactorily be "questioned about it in a CARS setting". Dr Wong could also clarify relevant issues by way of a medical report.
Ms Qin also submitted that although the insurer sought to rely on a statement by Mr Qin dated 23 October 2014, that statement was not put before the assessor, and therefore could not be considered.
More generally, she submitted that the insurer could seek to adduce evidence from doctors and lay witnesses at a CARS assessment conference and that: "The insurer has not considered the possibility that: (a) The claimant did tell Dr Wong about certain symptoms but he did not record those complaints. (b) The histories recorded by the medico-legal doctors were received via an interpreter, so there may be some translational errors being carried through. (c) The 'de-identified' matter was exempted on 23 May 2018 and there have been several decisions in the Supreme Court since that time which considered, applied and developed this line of precedents. The claimant submits that the matter is suitable for assessment [and] that it should not be exempted."

The decision of the claims assessor

On 26 August 2019, the claims assessor issued his decision refusing the insurer's discretionary exemption application and published written reasons.
In his reasons at [1] to [11], the claims assessor set out the factual background of the case. At [12], he provided a chronological summary of Ms Qin's relevant claims, and at [13], he summarised her claim for damages.
At [14] of his decision, the claims assessor referred to cl 14.16 of the Guidelines as follows: "14. When making a preliminary assessment, I am required to take into account all of the circumstances of the claim at the time of my consideration of the matter and, in particular, all matters listed at clause 14.16 of the [Guidelines]. As well as the Guidelines, I need to take into account the objects of the Act as set out in s 5 [of the] MAC Act, the objects of the CARS Guidelines, any relevant case law and my own experience."
At [15], the claims assessor set out the objects of CARS under cls 1.13 and 1.14 of the Guidelines. At [16], he noted that the insurer's application was made pursuant to s 92(1)(b) of the MAC Act and was dependent upon his satisfaction that the claim was not suitable for assessment.
At [17], the claims assessor set out cl 14.16 of the Guidelines in full, as reproduced earlier in this judgment. He summarised the submissions of the insurer at [32] to [42] and then of Ms Qin at [43] to [49].
The claims assessor provided the following reasons for his decision at [50] to [69]: "Decision and Recommendation 50. My task is to determine whether the claim brought by Ms Qin is not suitable for assessment as submitted on behalf of the Insurer. 51. A primary question will be whether both parties can be afforded a fair hearing at assessment conference 'which is in a practical sense fair having regard to the nature of the allegation raised' (Insurance Australia Limited t/as NRMA Insurance v Milton [2016] NSWSC 1521). 52. I acknowledge that this is a claim in which Ms Qin's credit will be called into question and there will undoubtedly be questions directed to Ms Qin in that regard. 53. I am satisfied however that issues of credit and close questioning of this Claimant and witnesses by the Insurer's representative can be accommodated in the CARS assessment conference. 54. It is my practice to permit the Insurer's representative to conduct such a line of questioning in circumstances where credit is a live issue. 55. In this instance I am not satisfied that in a claim such as this the questioning of the Claimant during an assessment conference would be materially different from the questions put in cross-examination in a court or that these issues could not be adequately explored at the assessment conference. 56. Arrangements can be made for medical practitioners to give oral testimony at an assessment conference, either in person or by telephone. 57. It is not suggested that any of the doctors nominated in the Insurer's submissions, if required for questioning, would refuse to co-operate with the CARS process such as it would be necessary to subpoena them for attendance. 58. I would also make the observation that some five (5) plus years [have] now passed since the motor vehicle accident and a relevant consideration in these circumstances will be for me to take into account the objects of the Act as set out in Section 5 [of the] MAC Act and the objects of the CARS Claims Assessment Guidelines. 59. Whilst not determinative it is relevant to take into account that should this claim be exempted there will in all likelihood be a further delay in resolution of the dispute between the parties in excess of twelve (12) months and accompanied by a significant increase in the legal costs imposed on the scheme. 60. Whilst the Insurer argues that exemption would enable cross-examination of Ms Qin under oath with the inference that this would bring with it serious consequences for false evidence, it is worth noting that Section 117 MAC Act provides that a person who makes a statement knowing that is false or misleading in a material particular is guilty of an offence which can be subject to a maximum penalty of 50 penalty units or imprisonment for 12 months, or both. 61. Invariably claimants are issued with such a warning by me at the commencement of an assessment conference before oral testimony is taken. 62. I am also satisfied that the issues raised on behalf of the Insurer in relation to the circumstances of the completion of the claim form and the possibility of questioning Ms Qin's previous solicitor can also be accommodated in the CARS process. 63. If the position were to be otherwise I would observe that the Insurer would be free to make a further application. 64. Whilst I make no finding either way as to the alleged false or misleading statements, I note that the Motor Accident Personal Injury Claim Form was completed some two weeks following the initial consultation with Dr Wong and his completion of his Motor Accident Medical Certificate which of itself may be capable of explaining a reference to 'shoulders' and 'PTSD ... depression'. 65. I note in the material before me there is a reference that the Claimant did not raise her psychological symptoms with her GP 'until this started to affect her life' (refer MAS Certificate of Assessor Anthony Samuels dated 21 September 2017 at page 3, par 9). 66. Overall, whether or not to determine the claim is not suitable for assessment is a balancing process in the task of evaluating whether the making of the allegations of false or misleading statements warrants the conclusion that this matter is not suitable for assessment. 67. Therefore in summary, I am satisfied that the parties can have a fair hearing in an assessment conference. 68. It follows that I am not satisfied that Ms Qin's claim is not suitable for assessment. 69. Accordingly, I am not prepared to recommend to the Principal Claims Assessor that she issue a Certificate pursuant to Section 92(1)(b) of the MAC Act exempting this claim from the CARS process."

Judicial review in this Court

In this current judicial review, the parties referred to a number of authorities. They are Zurich Australian Insurance Limited v Motor Accidents Authority [2006] NSWSC 845 ("Zurich Australian"); Banos; Insurance Australia Limited t/as NRMA Insurance v Milton [2016] NSWSC 1521 ("Milton"); Allianz Australia Insurance Ltd v Tarabay (2013) 62 MVR 537; [2013] NSWSC 141 ("Tarabay"); Taylor; IAG Ltd t/as NRMA Insurance v Abiad (2018) 85 MVR 371; [2018] NSWSC 1422 ("Abiad"); IAG Ltd t/a NRMA Insurance v Khaled (2019) 87 MVR 486; [2019] NSWSC 320 ("Khaled"); and IAG Limited (t/as NRMA Insurance) v Lou (2019) 88 MVR 57; [2019] NSWSC 382 ("Lou").
In Banos, Campbell J stated at [39], [41] to [43]: "[39] There may be cases, difficult to conjure in the abstract, where a claims assessor making a preliminary assessment to determine, inter alia, whether the claim is not suitable for assessment could find as a matter of law that a proffered statement or alleged inconsistency was not capable of calling into question the reliability of the claimant's account. But such cases must necessarily be very rare. The present case, in my judgment, certainly did not fall into that category. As I have said, the matters raised by the insurer were the very type of matters which are commonly afforded significant weight in the process of assessing the nature and extent of a claimant's injuries and disabilities, particularly when, as they appear to be here, they are soft tissue in nature and not wholly susceptible to entirely independent and objective evaluation. … [41] As cl 14.16 of the claims assessment guidelines suggest, a claim may not be suitable for assessment for a variety of reasons. Clause 14.16 provides eleven examples of considerations that may be taken to be relevant to the claims assessor's decision. Clearly it is not incumbent upon the claims assessor to consider each one of those matters in every case in which s 92(1)(b) is invoked. Rather, the function of the claims assessor requires him or her to bear firmly in mind at all times the statutory question, which, I reiterate, is whether the claim is not suitable for assessment under Pt 4.4 of the Act. Naturally, in deciding the matter he or she is required to weigh and assess such of the cl 14.6 grounds, if any (and the question is not limited to those considerations), as the parties may invoke. [42] In a case like the present, where only cl 14.16.11 is invoked, the claims assessor will fall into jurisdictional error if he or she purports to decide whether the claimant, or some other person, has in fact made a false or misleading statement in a material particular in relation to the injuries, loss or damage sustained by the claimant; at least except in the rarest of cases where it is so clear that a person has not made such a false or misleading statement as to be beyond argument. As Rothman J pointed out, a determination that a person has in fact made a false or misleading statement may only properly be made after what I will refer to as a full hearing on the merits during which the person whose statements are impugned has been given a fair opportunity to meet the allegations in accordance with the requirements of the rule in Browne v Dunn (1893) 6 R 67, or its administrative law equivalent where applicable cf Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S154/2002 [2003] HCA 60; 77 ALJR 1909 at [56]-[57]. [43] When deciding the statutory question in a case that turns upon whether a person has made a false and misleading statement, the following considerations are likely to be relevant. I do not mean to be exhaustive: … (b) however, the consideration that s 92 provides for both mandatory exemptions and discretionary exemptions provides a clear legislative guidepost that appropriate cases should be "redirected" to the court system at an early time by way of preliminary determination; (c) a primary question will be, having regard to the nature of the issue raised, whether both parties can be afforded a hearing (assessment conference) which is in a practical sense fair having regard to the nature of the allegation raised; (d) a related question will be which mode of hearing will resolve the dispute more efficiently and effectively, bearing in mind the comparative limitations and advantages of an assessment conference on the one hand, and a court hearing on the other. Advantages of the latter may include a better opportunity for proper and fair cross-examination of witnesses whose credit is to be impugned and the greater availability of cross-examination of medical experts on the material which may call a claimant's reliability into question… …"
Tarabay is a case concerning an allegation of fraud. In Tarabay, Rothman J stated at [36] to [39] and [57], [58], [62] to [64] and [66]: "[36] It is necessary, at least briefly, to reiterate the nature of proceedings before an assessor. The proceedings are informal. By Ch 15 (cl 15.4.2) the examination of parties and witnesses is usually by the assessor and questions by other parties to witnesses may only be put as directed by the assessor. [37] Further, pursuant to guideline 15.4.3 the assessor may allow questioning of a witness by another party's legal representative, but may make that questioning subject to any limitations determined by the assessor. [38] The assessor questions, or may question, a party or witness to such extent as the assessor thinks proper, but the assessor cannot compel any party or witness to answer any question. [39] If, in the last mentioned circumstance, a party fails to answer a question or a witness fails to answer a question, the assessor can have regard to that failure in the determination of the assessment, unless the party has a reasonable excuse for that failure to answer: see guideline cl 15.4.5. … [57] The allegation by Allianz is an allegation of fraud in relation to the reliance upon a document that is said to be a forgery (if not two such documents). The assessor has no power to subpoena or require the attendance of any person. The assessor has no power to require an answer to any question. The most that the assessor is able to do, in dealing with an issue of that kind, is take into account a failure to answer a question in determining an assessment. [58] There is a significant difference between inconsistent evidence of earnings and evidence of potential forgery. The only conclusive means of determining the forgery, and its source, is by compelling production, compelling answers under oath, and cross-examination of Mr Tarabay and third parties. That course is impossible in an assessment. … [62] The foregoing view does not conclude the matter against Allianz. There is a far more fundamental issue raised by the plaintiff. The 'issue' that was before the assessor was whether an exemption should be granted. The question that has been answered is whether Allianz has proved fraud. That is not the question that was before the assessor. [63] As recited above, the assessor has come to a conclusion (without evidence directly on the issue or even indirectly on the issue) as to the veracity of the explanation of Mr Tarabay, relayed by his solicitor, that Mr Tarabay does not know how the second PAYG payment summary has come into existence. The assessor expressly states that she accepts that explanation. The assessor accepts that 'in the absence of any evidence from the Insurer to the contrary'. [64] Yet, it is not for Allianz to explain how there are two PAYG records. Allianz has disclosed far more than would be necessary in order to show a prima facie need to explain inconsistent documents. Those documents have not been explained. Nevertheless, in the absence of proof from Allianz, the assessor has accepted the explanation relayed to her by the solicitor for Mr Tarabay. … [66] The only proceeding heard by the assessor was an interlocutory proceeding in which the task of Allianz was not to prove the fraud alleged but to satisfy the assessor, on the basis of an allegation, reasonably put, of fraud so that the matter was not one that should be heard in a CARS assessment."
In Tarabay, Rothman J concluded that the assessor asked herself the wrong question and took into account irrelevant material in determining whether fraud was proved instead of whether, given the nature of the allegations and their reasonableness, the matter ought be granted a certificate of exemption.
Taylor concerned a discretionary exemption application. In Taylor, Davies J stated at [34], [36] and [38]: "[34] First, it is of significance that all that is necessary for the Assessor's discretion to be triggered with regard to an exemption on this ground is an allegation by the insurer. Subject to the requirement by an assessor to provide particulars pursuant to cl 17.13 of the Guidelines that is all that the insurer needs to do for the Assessor to be required to determine whether the claim is not suitable for assessment. Indeed, cl 17.13 when dealing with a requirement that a party give particulars in writing of the general nature of any such allegation, the clause adds 'but not necessarily the evidence or proof of same'. … [36] It can be reasonably inferred from the mandatory exemption in relation to a fraudulent claim that the absence of sworn compellable evidence with a right of cross-examination in the CARS process meant that neither truth nor fairness to the parties was likely to be achieved other than in a court hearing where, additionally, the rules of evidence apply. That is a relevant consideration where it is alleged a false or misleading statement has been made. … [38] Thirdly, although, as Tarabay and Banos make clear, it is an error for the Assessor to make a determination about whether a statement is false or misleading, it is difficult to see how an assessor would be in error in forming some sort of preliminary view, and it is difficult to see how the assessor would not have to form such a preliminary view, about the allegation to determine whether the claim is not suitable for assessment: Insurance Australia Limited t/as NRMA Insurance Limited v Milton [2016] NSWSC 1521 at [26]-[27]. As Campbell J makes clear at 43 it is not sufficient that an allegation alone has been made for the discretion to be exercised that a claim is not suitable for assessment. Something more will be needed. Clause 17.3 also points to the view that the seriousness of what has been alleged must be a consideration. Justice Campbell allowed for the rare position at [39] and [42] that the Assessor could determine that a person clearly had not made such a false or misleading statement. That points also to the forming of a preliminary view."
In Taylor at [39], Davies J then confirmed Rothman J's comments in Tarabay at [57], before continuing at [40]-[42]: "[40] In my opinion, error is established in the present case either because there has been a constructive failure on the part of the Assessor to exercise her jurisdiction or because she has not correctly dealt with the question that she ought to have asked. The question she was required to answer was whether the claim was not suitable for assessment on the basis that there was an allegation that the First Defendant had made a false or misleading statement in a material particular in relation to his injuries. [41] The Plaintiff specifically directed the Assessor's attention to a specific and significant matter, namely, whether the matter should be exempted so that the claimant's claims could be tested under oath. The Plaintiff did that in its letter to the Assessor of 2 August 2016 making the application and again in its submissions in reply to the Assessor dated 22 September 2016. In that letter the Plaintiff said this: The insurer submits given the histories recorded and the contents of the current clinical notes, it is appropriate that the claimant give evidence in Court under oath in respect of the accident and his claim for damages. The CARS process does not allow for the claimant's claims to be tested under oath. The insurer does not agree with the claimant's submissions that the claimant's claims can be properly dealt with under cross-examination at CARS. We confirm the claimant would not be required to give an oath at CARS prior to providing his evidence and no transcript would be available. Given the histories repeatedly provided by the claimant that he had no relevant pre-accident symptoms or injuries, the insurer submits CARS is not the appropriate forum for the matter to be heard. [42] The Assessor made no reference to the significance of evidence being given under oath in the circumstances. She merely said that the insurer had not alleged any fraud surrounding the accident (an irrelevant matter for this particular application) but failed to note that what was alleged was a false and misleading statement that, like fraud, might require a consideration of whether the more appropriate venue would be one of where evidence is given under oath. Her characterisation of the complaint as 'inaccurate histories' was an inadequate acknowledgement that what was alleged was 'false' and misleading rather than being inaccurate."
Finally, after reproducing [56] to [58] of Tarabay, Davies J then concluded at [44] to [46]: "[44] I accept that forgery was not alleged in the present case but the remarks made by Rothman J are relevant when another form of false or misleading statement is alleged. [45] There is no indication in the Reasons of the Assessor (effectively paragraphs 8-12 of her Reasons) of the significance of testing evidence alleged to be false and misleading under oath as discussed by Rothman J in Tarabay at [57]-[58] or by Campbell J in Banos at [37]-[43]. [46] The particularisation by the Plaintiff of what was said to be the false and misleading statements was sufficiently extensive as to require the Assessor to consider whether it would in the circumstances be more appropriate for the credit of the First Defendant to be properly tested under oath, heard in open court and subject to proper cross-examination, none of which was available in the CARS assessment process. Moreover, if a false or misleading statement had been made by the First Defendant s 117, or indeed probably s 118 of the Act, would not be able to be availed of if the matter was not heard by a court."
In Abiad at [59] and [62], Harrison J set out Campbell J's statements in Banos at [43] and Davies J's statements in Taylor at [33] to [36]. Harrison J then continued at [76]: "[76] It is not the role of a claims assessor to second guess an insurer's allegations that a claimant has made a false or misleading claim. Section 92(1)(b) and cl 14.16.11 implicitly recognise the fact that in an appropriate case an insurer's claims ought to be tested in a courtroom and be exposed to the type of forensic examination that the assessment process, to some extent at least, cannot necessarily provide. Much has been written about this already and it is unnecessary to expand upon it here. The simple proposition is that a claims assessor's task when an application has been made is to assess the allegation and whether it is not suitable for assessment under the relevant Part. The assessor's role is not to determine the truth or even the strength of the insurer's allegations."
In Khaled, Bellew J stated at [28]: "[28] In my view, it is evident from the Assessor's reasons that she did not turn her mind to the question whether the matter was not suitable for assessment in CARS. There is an obvious, and indeed material, difference between whether or not a matter can be dealt with in the CARS process (in the sense of being capable of being dealt with in that way), and whether it is not suitable to be dealt with in that way. In that sense, capability is not the same as suitability. The terms of s 92(1)(b) required the Assessor to consider and focus upon the latter question. It is evident from the passages of her reasons to which I have referred that the Assessor failed in that regard and, in fact, concentrated on the former. In doing so, I am satisfied that the Assessor failed to ask herself the correct question and thus erred."
In Lou, Wilson J stated at [23]: "[23] However, the frequency with which a particular type of issue is ventilated and dealt with in the CARS assessment process is irrelevant to determining whether a claim is 'not suitable for assessment' under Pt 4.4 of the MAC Act, that being the language used in s 92(1)(b), and the matter to be determined by the decision maker. It was not a question of whether the issues raised by the insurer were commonly dealt with, and thus could be dealt with, by assessment; the question was whether the issues made the matter not suitable for assessment within CARS."
Ms Qin also referred to several cases which set out the standard to which a claims assessor's reasons are to be held in respect of a judicial review in this Court. Those cases are IAG Ltd t/as NRMA Insurance v Chahoud (2019) 89 MVR 87; [2019] NSWSC 767 ("Chahoud"); Khateib and AAI Ltd v Feng [2019] NSWSC 535 ("Feng").
In Chahoud, Bell P stated at [66]: "[66] Similarly, here, it would have been preferable for the proper officer to have used the language of s 62(1A). However, as was the case in Dominice, and bearing in mind the principle articulated in Wu Shan Liang, I do not consider the 'looseness' or 'unhappy phrasing' of the proper officer's language to be fatal in the present case."
In Khateib, Rothman J stated at [20]: "[20] In this instance, the Claims Assessor has been addressed on the importance of the material and the allegation. The Claims Assessor has evaluated that claim and the material that is currently available and will, in the ordinary course, become available and has come to a conclusion that that material and that allegation are not such that the matter is not suitable for assessment. The reasoning of the Claims Assessor does not disclose relevant error or the failure to take account of a material consideration. Further there is no immaterial consideration that the Claims Assessor has considered and the result is neither unreasonable in the Wednesbury sense nor manifestly incorrect."
In Feng, Adamson J stated at [56]-[60]: "[56] Claims assessors are required to give 'a brief statement of reasons' if an exemption pursuant to s 92(1)(b) is granted: cl 14.13 of the Guidelines. They are also required to give reasons for assessment: Chapter 18 of the Guidelines. There is no express requirement that reasons be given where an application for a discretionary exemption is declined… [57] The Claims Assessor's reasons should be read fairly as a whole. In the introductory paragraphs, he posed the correct question: namely, whether 'this claim ought be exempt from assessment pursuant to s 92(1)(b)' and referred to the applicable provisions of the Guidelines. The words 'ought to' are apt to refer to a discretion and do not connote any automatic process to be determined by reference to capacity rather than suitability. The Claims Assessor's recitation of the submissions of the parties has not been shown to be inadequate or erroneous. [58] In paragraph [13] of the reasons, the Claims Assessor posed the question whether it was 'appropriate having regard to the claims made, the claim can be properly assessed within CARS'. The word 'appropriate' suggests a discretionary consideration of relevant factors and is consistent with the application of a test of suitability. Although the word 'can' implies capacity, the addition of the qualifying adverb 'properly' is sufficient, in my view, to indicate that the Claims Assessor realised that he was making a qualitative assessment of suitability rather than determining whether CARS had the capacity to hear and determine the dispute. [59] In paragraph [14] the Claims Assessor outlined the jurisdiction and experience of CARS as a 'specialist Tribunal' and what, in his experience, had occurred in such assessments. Although this paragraph was relied upon by the Insurer as an indication that the Claims Assessor had fallen into the same error as the claims assessors in Khaled and Lou, I do not consider this paragraph to have that effect in the present case. Although the ultimate question turns on suitability (or lack thereof), capacity will commonly, if not invariably, be a relevant factor in determining suitability. In paragraph [15], the Claims Assessor again used the words 'properly determined', which, in my view, is sufficient to indicate that he was addressing suitability rather than purely addressing capacity. The reference in paragraph [15(ii)] to the potential for the issue of suitability to be revisited implies that the question of suitability was being addressed in the reasons. The words 'particularly complex' in paragraph [15(v)] also imply that an evaluative judgment is being made. The highlighted words in paragraph [17] in the passage from the reasons extracted above suggest that the Claims Assessor was not engaged in a rudimentary exercise of determining whether CARS had the capacity to determine the dispute but rather that the Claims Assessor had not been persuaded by the Insurer's arguments that the claim was unsuitable for CARS assessment. [60] For the reasons given above, the Insurer has not demonstrated any error of law on the face of the record or jurisdictional error in the Claims Assessor's reasons."
I note that more generally, the standard to which a claims assessor's reasons are to be held has been set out in Wingfoot Australia Partners Pty Ltd v Kocak (2013) 252 CLR 480; 303 ALR 64 ("Wingfoot"). While Wingfoot refers to a medical panel under the Accident Compensation Act 1985 (Vic), the standard for written reasons set out above applies equally to the claims assessor under the MAC Act in this case.
In Wingfoot the High Court stated at [55]: "[55] The standard required of a written statement of reasons given by a medical panel under s 68(2) of the Act can therefore be stated as follows. The statement of reasons must explain the actual path of reasoning by which the medical panel in fact arrived at the opinion the medical panel in fact formed on the medical question referred to it. The statement of reasons must explain that actual path of reasoning in sufficient detail to enable a court to see whether the opinion does or does not involve any error of law. If a statement of reasons meeting that standard discloses an error of law in the way the medical panel formed its opinion, the legal effect of the opinion can be removed by an order in the nature of certiorari for that error of law on the face of the record of the opinion. If a statement of reasons fails to meet that standard, that failure is itself an error of law on the face of the record of the opinion, on the basis of which an order in the nature of certiorari can be made removing the legal effect of the opinion."
I accept that the claims assessor's reasons are not to be overscrutinised to see if error can be gleaned from their expression: see Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 271-272. Nevertheless, this beneficial approach to construction does not mean that any ambiguity is to be resolved in the assessor's favour: see Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union v Abigroup Contractors Pty Ltd [2013] FCAFC 148 at [190]; SZCBT v Minister for Immigration and Multicultural Affairs [2007] FCA 9 at [26]. Invariably, some reasons "will cross the line, and irredeemably reveal jurisdictional error": see Ejueyitsi v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 151 FCR 289; [2006] FCA 328 at [88].

Grounds of judicial review

The plaintiff's grounds of review are as follows: 1. That the claims assessor misconstrued the scope and nature of his statutory power under s 92(1)(b) of the MAC Act in the following ways: 1. by asking himself the wrong legal question by considering whether CARS "can" or "could" deal with the matter, instead of whether it "should" deal with it; 2. by approaching the insurer's application on the flawed basis that a courtroom did not have any advantages over CARS; 3. by failing to make a preliminary assessment, considering present circumstances; 4. by considering own practices when determining suitability for assessment; and 5. by evaluating and minimising the insurer's allegations. 1. That the claims assessor took into account two irrelevant considerations in his decision by referring at [59] to "further delay" and a "significant increase in legal costs" if he granted the exemption application.
I shall deal with these two grounds of review in turn.

Ground 1 -misconstruing the scope and nature of the statutory power

(a) by considering capability instead of suitability

The insurer's submissions

The insurer submitted that the claims assessor misconstrued the scope and nature of his power by asking whether certain issues could be - and how commonly they were - dealt with at CARS, instead of whether the matter was not suitable for assessment, as required.
The claims assessor began his reasoning process at [51] by stating that a "primary question" for him to consider was whether both parties can be afforded a fair hearing at an assessment conference. At [67], he determined that the answer to the question was that they can. The insurer submitted that despite opening and closing his reasons with these statements setting out the proper legal test, the claims assessor approached the question of what was "fair" by considering what could be done at CARS, rather than considering whether the claim was suitable for assessment at CARS.
At [53] and [62] of his reasons respectively, the claims assessor considered whether the issues raised by the insurer, and whether the questioning of particular witnesses, "can be accommodated" at CARS. The insurer also referred to the claims assessor's statement at [56] that oral testimony from doctors "can be arranged". The insurer submitted that these references do not address the statutory question of whether the claim "is not suitable for assessment" under s 92(1)(b) of the MAC Act.
The insurer submitted that the claims assessor's failure to consider the question of suitability indicates, as it did in Khaled, that he erred by failing to ask himself the correct question.
The insurer further referred to the claims assessor's references at [54] and [61] to his own practice of dealing with certain issues at CARS. The insurer submitted that these references did not engage with the question of the suitability of the claim for assessment, but merely emphasised that such issues are commonly dealt with at CARS. In Lou at [23], Wilson J stated that the frequency with which an issue is dealt with in the CARS assessment process is irrelevant to determining whether a claim is "not suitable for assessment" under Part 4.4 of the MAC Act.
The insurer submitted that the claims assessor's repetition of phrases such as "can be arranged" and "can be accommodated" indicates that the deficiencies in reasoning are not merely due to "looseness of language" or "unhappy phrasing": see Wu Shan Liang at 271-272. The insurer submitted that on these grounds the decision should be set aside.

Ms Qin's submissions

Ms Qin submitted that the claims assessor's reasons: 1. identify that his decision is at [50] to [69]; 2. identify at [50], [66], [67] and [68] the correct test in s 92(1)(b) of the MAC Act; 3. identify at [51] the correct place of the "primary question" as discussed in Milton; 4. identify at [52] to [64] the matters raised in submissions, and contain the path of reasons of the claims assessor and his findings on those matters relevant to the statutory test; 5. identify at [67] a conclusion as to whether CARS can provide a hearing which is in a practical sense fair.
Ms Qin submitted that the insurer's focus on "can" and "could" do not survive a beneficial reading of the claims assessor's reasons. The claims assessor used those words to explain his path of reasons and his findings, in a way that was satisfactory. Ms Qin submitted that this is not a case where the claims assessor made a formulaic incantation of a statutory provision, and then went on to determine the case by a different criteria or test.
It was open, and required of the claims assessor, to examine the capabilities of CARS as a forum before determining whether it was not suitable to hear the matter. As such, there is no deficiency in the reasons, in which the correct test is plainly applied.

Consideration

In considering this ground of review, it will be necessary to address the reasons of the claims assessor in some detail.
At [23] of the decision, the claims assessor referred to Banos at [43], where Campbell J stated, "the function of the Claims Assessor requires him or her to bear firmly in mind at all times the statutory question, which I reiterate, is whether the claim is not suitable for assessment under part 14.4 of the Act" ([the claims assessor's] emphasis)".
At [30] of the decision, the claims assessor further stated: "[30] I am also cognisant of the decision of IAG Limited t/as NRMA Insurance v Qianxia Lou [2019] NSWSC 382 (decided 4 April 2019) in which Wilson J found at [23]: '…the frequency with which a particular type of issue is ventilated and dealt with in the CARS assessment process is irrelevant to determine whether a claim is not suitable for assessment.' [31] The relevant question is whether the issues raised made the matter not suitable for assessment within CARS."
At the outset of his "decision and recommendation" at [50], the claims assessor stated, "My task is to determine whether the claim brought by Ms Qin is not suitable for assessment as submitted on behalf of the insurer." At [68], he concluded, "It follows that I am not satisfied that Ms Qin's claim is not suitable for assessment."
At the hearing of this judicial review, the insurer accepted that the claims assessor stated the correct test at the outset and conclusion of his reasons. However, senior counsel for the insurer submitted that the substance of the claims assessor's reasons reveal that he asked himself the wrong question by considering whether the matter "could" be dealt with at CARS, rather than whether it was not suitable for assessment. I do not agree.
In considering the claims assessor's reasons, I am conscious of the recent decision of Adamson J in IAG Limited t/as NRMA Insurance v Abdelrazek [2020] NSWSC 773 ("Abdelrazek"), in which she addressed a similar ground of review by stating, "Although the ultimate question turns on suitability (or lack thereof), capacity will commonly, if not invariably, be a relevant factor in determining suitability." In Abdelrazek, Adamson J was of the view that the claims assessor's addition of the qualifying adverb "properly" indicated that he was making a qualitative assessment of suitability, rather than capacity. Similarly, in these proceedings, the claims assessor stated at [56] that he was not satisfied that certain issues "could not be adequately explored at the assessment conference" (my emphasis).
It is true that elsewhere in his reasons, the claims assessor did not use such qualifying adverbs. At [53], he simply stated that he was satisfied that issues of credit and close questioning of Ms Qin "can be accommodated" at CARS. However, he continued at [54] to state that it is his practice to permit questioning in circumstances where credit is a live issue. In my view, this reveals that the claims assessor not simply determining capacity, but rather expressing a view that he was not persuaded that the claim was unsuitable for CARS assessment. The same is true of his statement at [62] that issues concerning the completion of the claim form and possibility of questioning Ms Qin's previous solicitor "can be accommodated" at CARS. This statement must be read in context of the previous paragraphs, in which the claims assessor stated that there is no evidence that nominated doctors would refuse to cooperate with the CARS process.
Having considered these issues, the claims assessor concluded at [66]: "66. Overall, whether or not to determine the claim is not suitable for assessment is a balancing process in the task of evaluating whether the making of the allegations of false or misleading statements warrants the conclusion that this matter is not suitable for assessment."
In my view, it is plain from the claims assessor's reasons that he understood the overriding question to be one of suitability, not capacity. In determining whether the matter was not suitable for assessment at CARS, the claims assessor was entitled to compare the advantages of a CARS assessment and a court hearing, including the capacity for the issues raised in the insurer's submissions to affect the capacity of CARS to provide the parties with a fair hearing. As such, his reasons reveal that he gave a proper, genuine and realistic consideration of the correct question. This ground of review fails.

(b) by failing to exercise power consistently with the statutory scheme

The insurer's submissions

The insurer submitted that another indication that the claims assessor misconstrued the scope and nature of his power under s 92(1)(b) of the MAC Act is that he did not exercise it consistently with the purpose of the statutory scheme. Sections 92(1) and 106, when read with cls 8.11.6 and 14.16.11 of the Guidelines, evince an intention that, in an appropriate case, an insurer's claims ought to be tested in a courtroom and be exposed to the type of forensic examination that the assessment process cannot necessarily provide: see Abiad at [76]. The insurer submitted that the claims assessor approached the question on the flawed basis that a courtroom did not have any advantages over CARS, and that the assessment process could provide an equivalent level of forensic examination.
The insurer pointed to Banos, which established that the curial system has advantages over CARS where an allegation is made that a person has made a false and misleading statement. In Banos at 43, Campbell J stated that s 92 provides "a clear legislative guidepost" that appropriate cases should be "redirected" to the court system at an early time by way of preliminary determination. The advantages of the curial system include that, in court, the rules of evidence apply, there is sworn compellable evidence, there is a right of cross examination and evidence is given under oath: see, for example, Taylor at [41]-[45]. A transcript is also made and available. A CARS assessment, by contrast, lacks these features: see Tarabay at [36]-[39] and [57] and Taylor at [39].
The insurer submitted that the claims assessor's reasons implicitly denied all of these advantages. As such, the claims assessor did not correctly determine whether the matter was "not suitable" for assessment.
Some of the claims assessor's findings, indicating that he considered that allegations of false or misleading statements could be tested as effectively at CARS as in a court, were that: 1. issues of credit and close questioning of witnesses can be accommodated at CARS (at [53]); 2. questioning of a claimant would not be materially different whether at CARS or in court (at [55]); 3. medical experts could and would give evidence in CARS even though they could not be subpoenaed (at [56]-[57]); 4. witnesses would be given warnings about the effect of s 117 of the MAC Act (at [60]-[61]); and 5. notwithstanding the fact that witnesses cannot be compelled to attend, the issues in relation to the completion of the claim form and the possibility of questioning of the claimant's previous solicitor can be accommodated in the CARS process (at [62]).
The insurer also referred to Taylor at [36] and Banos at 43 and (e), extracted earlier in this judgment. The insurer submitted that the claims assessor's failure to "engage with" these considerations, or to acknowledge the limitations of an assessment, reflected the fact that he asked himself the wrong question: see Khaled at [30].
The claims assessor's response to the insurer's submission that it needed to cross examine Ms Qin under oath was that he could issue any witness with a warning about s 117 of the MAC Act (rendering it an offence to make a statement knowing that it is false or misleading in a material particular). The insurer submitted that this did not take into account that the insurer would not be able to rely upon s 117 in the assessment, because there would be no transcript.

Ms Qin's submissions

Ms Qin submitted that in its submissions before the claims assessor, the insurer compared the respective virtues of the CARS process and court proceedings. The insurer did not specifically say that it could not obtain a fair hearing in CARS, nor was there a basis on which this could be said.
Ms Qin submitted that under s 92(1)(b) of the MAC Act, the relevant consideration for the claims assessor was whether the claim "[was] not suitable for assessment" by CARS. The question was not which venue would be preferable, if both venues were suitable, but rather whether CARS is not suitable. That determination must be made on the facts of each case, with reference to the allegations made by the moving party.
In this case, the insurer's submissions to the claims assessor engaged in a comparison of the virtues of CARS and court proceedings. As he was required to do, the claims assessor engaged with that comparative process. Ms Qin submitted that the insurer's submissions merely pointed to virtues that it said made court proceedings its more preferred venue, but did not give reasons why CARS was not suitable.
There is no prima facie starting position within the legislative framework which states that where allegations of false or misleading statements are made, there is something in the nature of a presumption that CARS proceedings are not suitable and only court proceedings are appropriate. Plainly, the legislative context, and the test to be applied in s 92(1)(b), looks to the starting question of whether the assessment is not suitable for CARS.
Ms Qin submitted the claims assessor was required to consider whether there could be a hearing which is in a practical sense fair, and not whether court proceedings have virtues that make them a preferred or more suitable venue. Ms Qin submitted that the claims assessor engaged in this exercise.

Consideration

This ground of review alleges that the claims assessor failed to consider the comparative limitations and advantages of an assessment conference and a court hearing, as s 92(1)(b) of the MAC Act required him to do: see Banos at 43 and (d). This is because, the insurer submitted, the claims assessor considered a courtroom not to have any advantages over a CARS assessment. In my view, this is not a fair assessment of the claims assessor's reasoning.
At [22] of his reasons, the claims assessor referred to Banos at 43, where Campbell J stated: "A related question will be which mode of hearing will resolve the dispute more efficiently and effectively, bearing in mind the comparative limitations and advantages of an assessment conference on the one hand, and a court hearing on the other. Advantages of the latter may include a better opportunity for proper and fair cross-examination of witnesses whose credit is to be impugned and the greater availability of cross-examination of medical experts on the material which may call a claimant's reliability into question…"
In considering the cross-examination of Ms Qin, the claims assessor stated at [52]-[54] that he acknowledged her credibility would be called into question. However, he stated it was his practice to permit cross-examination in the CARS setting. He also stated at [60] that although questioning Ms Qin under oath carried the advantage of serious consequences for false evidence, in a CARS assessment he would issue her with a warning that any false or misleading statements constitute an offence under s 117 of the MAC Act. The claims assessor concluded at [55], "In this instance, I am not satisfied that in a claim such as this the questioning of the claimant during an assessment conference would be materially different from the questions put in cross-examination in a court, or that these issues could not be adequately explored". In other words, the claims assessor considered whether, and was not satisfied that, a court hearing would provide a "better opportunity for proper and fair" cross-examination of questionably credible witnesses: see Banos at 43.
As to the insurer's submissions concerning compellable evidence, the claims assessor stated at [56] that arrangements could be made for medical practitioners to give oral testimony at an assessment conference. He noted at [57] that there was no suggestion that any nominated doctors would refuse to cooperate with the CARS process, such that the power to subpoena them for attendance would be required. To use the words of Campbell J in Banos at 43, the claims assessor had considered, and rejected, the argument that a court would provide "greater availability of cross-examination of medical experts" in relation to the application before him.
It is not the effect of s 92(1)(b) of the MAC Act that any application made on the basis that a claimant made a false or misleading representation indicates that a court is a preferable venue. In its application, the insurer bore the onus of demonstrating that the availability of transcript, sworn evidence, or the power to compel witnesses would materially affect the proceedings such that CARS was not suitable. It was open to the claims assessor, on the evidence, to determine that they would not. In my view, his reasons engage with an evaluation of the insurer's submissions and the comparative advantages of the forums as they relate to the facts of the application before him, as he was empowered to do under s 92(1)(b). This ground of review fails.

The insurer's submissions

The insurer submitted that the claims assessor also misconstrued his statutory task by failing to make a preliminary assessment having regard to the circumstances of the claim as at the time of its consideration, as required by cl 14.16 of the Guidelines. Instead, he speculated as to future possibilities.
At [57], the claims assessor considered whether doctors nominated by Ms Qin would refuse to cooperate with the CARS process, and at [62] he assumed that Ms Qin's previous solicitor would make herself available for questioning, despite there being no power in the MAC Act to compel their attendance. The insurer submitted that by so doing, the claims assessor wrongly made a prospective assessment on the basis of his speculation as to the circumstances in the future.
The insurer argued that there was no evidence before the claims assessor that any of the proposed witnesses would make themselves available for questioning at an assessment. He required the insurer to provide evidence that proposed experts and lay witnesses would not attend the CARS process. The insurer submitted that this approach imposed an impermissible burden of proof on the insurer and departed from the preliminary assessment the claims assessor was required to undertake, having regard to present circumstances.

Ms Qin's submissions

Ms Qin submitted that as the insurer had applied for a discretionary exemption from CARS, it was for the insurer to demonstrate that CARS was "not suitable".
If there were foreseeable or reasonable grounds to suspect that the expert or lay witness required by the insurer were not available, or required the coercive measures of a court to ensure attendance, then that would constitute evidence that CARS was not suitable. The insurer provided no such evidence.
Ms Qin submitted that on any reading, the claims assessor assessed the matter as at the time of the application. There was no evidence to suggest that there was an issue with availability, and there was no evidence to suggest that these circumstances might change. It was open to the claims assessor to make the determination, in the absence of evidence or submissions to the contrary, that the coercive powers of the court were not expressly required. As such, the preliminary assessment of the matter, based on the facts and submissions provided, was well within the scope of the claims assessor's duty in making his determination.

Consideration

In considering the insurer's application, the claims assessor was bound under s 106 to consider cl 14.16 of the Guidelines. Clause 14.16 required him to consider "the circumstances of the claim at the time of consideration of the claim", and entitled (but did not require) him to consider any and all of the matters listed in its sub-clauses.
I note that a preliminary assessment under s 92(1)(b) "is of its nature based on incomplete information": see Zurich Australian at [41]. The information before the claims assessor at the time of its consideration was contained in the submissions of the insurer and Ms Qin.
The insurer's submissions before the claims assessor provided no indication, let alone evidence, that witnesses might not attend a CARS assessment, or that the unavailability of the coercive powers of a court might affect the suitability of CARS to hear the claim. As stated earlier, as the applicant for the discretionary exemption, the insurer bore the onus of demonstrating that CARS was not a suitable venue. It was open for the claims assessor to conclude that without satisfactory evidence, he was not satisfied that CARS was not suitable. Moreover, by indicating that there was no current evidence that witnesses would not attend a CARS hearing, the claims assessor was not "speculating about future possibilities" but rather envisioning the way the assessment would be conducted based off the evidence before him, as he was required to do: see Abdelrazek at [57]. This ground of review fails.

(d) by considering own practices when determining suitability for assessment

The insurer's submissions

The insurer submitted that the claims assessor merely assumed that he would be the claims assessor determining the substantive application, and therefore that his practice was relevant. This was the wrong approach for two reasons. First, he was required to consider the circumstances of the claim as at the time of consideration of the claim. It was possible that the matter would be referred to another claims assessor for determination, and he should not have assumed that he would necessarily assess the claim.
Secondly, and more importantly, the insurer submitted that the statutory question for determination was not whether the claim was unsuitable for assessment by the claims assessor, but whether the claim was not suitable for assessment under the MAC Act. This required the claims assessor to consider the suitability of the claim for assessment generally and not in light of his own practices. He could not, in any event, bind himself to exercise his procedural powers in a particular way when conducting an assessment in the future: see Ansett Transport Industries (Operations) Pty Ltd v Commonwealth (1977) 139 CLR 54, per Mason J at 74. It follows that he should not have considered the claim's suitability or otherwise for assessment on the basis that he would exercise his discretionary powers in a stated or particular way.
The insurer submitted that by considering the suitability of the claim for assessment by him personally, in light of hisown practice, the claims assessor asked himself the wrong question and fell into error.

Ms Qin's submissions

Ms Qin submitted that the use of the claims assessor's knowledge and experience is directly contemplated, permitted and expected within the CARS scheme. The claims assessor's practices in assessing a claim are relevant because the claim had already been allocated to him, pursuant to s 93 of the MAC Act. There is no evidence that that would change.
Further, the claims assessor was bound to assess the claim by application of the Guidelines, the statutory provisions and the common law. In this way, while each claims assessor may have forensically differing approaches to assessment, there is no practical likelihood of those differing approaches being substantively different. The variation between assessors is nominal at best given the overall requirement to assess within the bounds of lawful decision making. In other words, the practices and experiences of the claims assessor are substantively common amongst claims assessors. This consideration was a relevant and valid one in concluding that the practices within CARS were capable of accommodating the claim.
The claims assessor's consideration of the matter was a lawful preliminary consideration on the facts as they are available.

Consideration

As stated under ground 1(c), in considering the insurer's application, the claims assessor was obliged to consider the circumstances of the claim at the time of its consideration. In my view, the claims assessor was entitled to envision the way in which the assessment would be conducted on the basis of present information, which included that he had been allocated to hear the claim, should it progress to a CARS assessment, pursuant to s 93 of the MAC Act. I note on this point that cl 1.14.4 of the Guidelines provides that one of the objects of CARS is "to make appropriate use of the knowledge and experience of CARS Assessors". To do so was not in error. This ground of review fails.

(e) by evaluating and minimising the insurer's allegations

The insurer's submissions

The insurer submitted that the claims assessor wrongly sought to evaluate the false or misleading allegations to the extent that he effectively minimised and dismissed them. At [53], [54] and [64] of his reasons, the claims assessor referred to the allegations as merely "issues" of credit which could be accommodated in his "practice" of permitting questioning at CARS. By doing so, the claims assessor effectively avoided the statutory question of whether the allegations rendered the claim "not suitable" for assessment. He did not consider the nature of the allegations at all in the analytical part of his reasons, but merely reported what they allegations were. As such, he wrongly failed to consider the seriousness of what had been alleged: see Taylor at [38].
The insurer further submitted that the claims assessor's comments at [64] to [65] about the timing of the completion of the claim form and Ms Qin's statement that she did not raise her psychological symptoms with her doctor until they started to affect her life also minimised the allegations. These comments impermissibly indicated that the claims assessor had come to a view as to the veracity of Ms Qin's explanation for the false and misleading statements: see Tarabay at [63]). While the claims assessor purported to make no finding either way, he conveyed his opinion that the insurer's allegations were not strong.
The insurer submitted that the "assessor's role is not to determine the truth or even the strength of the insurer's allegations": see Abiad at [76]. Nor is it "to second guess an insurer's allegations that a claimant has made a false or misleading claim". The insurer submitted that the insurer did both. As such, he did not ask himself the correct legal question and failed to understand and perform his statutory task.

Ms Qin's submissions

Ms Qin submitted that in his reasons, the claims assessor did not make any finding as to whether the allegations were in fact false or misleading. On any reading, and especially with beneficial construction as is required by law, the claims assessor did not dismiss the allegations.
The claims assessor did not need to reach a conclusion on the issue of whether Ms Qin had made false or misleading statements, and arguably would fall into legal error in attempting to do so: see Tarabay. However, the merits of the allegations made by the insurer are still relevant to the determination.
The question that required determination was whether the matter was "not suitable" for assessment, having regard to the allegation of false or misleading statements that had been made by the insurer. This necessarily involves an exercise of discretion.
The insurer was required to satisfy the claims assessor that the matter was not one that should be heard in a CARS assessment, on the basis of an allegation, reasonably put: see Tarabay at [66]. It is not the case, as submitted by the insurer, that the claims assessor provided some commentary on the truth or strength of the insurer's allegations. The claims assessor merely stated that the documents or circumstances were capable of explaining any inconsistencies.
Ms Qin submitted that as such, there is no error in the claims assessor's treatment of the allegation, and the fine tooth comb approach of the insurer in this respect violates the beneficial construction principle afforded to administrative decision makers.

Consideration

In Taylor, Davies J stated at [38]: "Thirdly, although, as Tarabay and Banos make clear, it is an error for the Assessor to make a determination about whether a statement is false or misleading, it is difficult to see how an assessor would be in error in forming some sort of preliminary view, and it is difficult to see how the assessor would not have to form such a preliminary view, about the allegation to determine whether the claim is not suitable for assessment: Insurance Australia Limited t/as NRMA Insurance Limited v Milton [2016] NSWSC 1521at [26]-[27]. As Campbell J makes clear at 43 it is not sufficient that an allegation alone has been made for the discretion to be exercised that a claim is not suitable for assessment. Something more will be needed. Clause 17.3 also points to the view that the seriousness of what has been alleged must be a consideration. Justice Campbell allowed for the rare position at [39] and [42] that the Assessor could determine that a person clearly had not made such a false or misleading statement. That points also to the forming of a preliminary view." (my emphasis)
In his decision at [64] and [66], the claims assessor stated: "64. Whilst I make no finding either way as to the alleged false or misleading statements, I note that the Motor Accident Personal Injury Claim Form was completed some two weeks following the initial consultation with Dr Wong and his completion of the Motor Accident Medical Certificate which of itself could be capable of explaining a reference to 'shoulders' and 'PTSD ... Depression'. … 66. Overall, whether or not to determine the claim is not suitable for assessment is a balancing process in the task of evaluating of whether the making of allegations of false or misleading statements warrants the conclusion that this matter is not suitable for assessment."
In my view, the claims assessor's reasons cannot be read as dismissing the insurer's allegations. The claims assessor made clear that the issues of credit were those which, in his experience and based on the available evidence, could be clarified in a CARS assessment. The question of the reasonableness of the allegations, and the strength of the insurer's allegations, were relevant to the question to be determined by the claims assessor, and to the exercise of his discretion. The claims assessor was entitled to form a preliminary view about whether the statements were false or misleading in order to come to a decision about the suitability of the matter for assessment.
In my view, the claims assessor has not constructively failed to exercise his jurisdiction. Ground 1 fails.

Ground 2 - taking into account two irrelevant considerations

The insurer's submissions

The second error the claims assessor made was to take into account irrelevant matters.
These are that the granting the exemption application would cause "further delay" and would result in a significant increase in legal costs (reasons at [59]).
This is another indication that the claims assessor misconstrued the scope and nature of his power under s 92(1)(b) of the MAC Act is that he had regard to matters which were not relevant to the question of suitability for assessment.
The claims assessor indicated at [14] and [58] of his in the reasons that he considered delay to be relevant because he is "required" to take into account the objects of the MAC Act and those of the Guidelines. Those objects were neither relevant nor determinative, and pull in a number of different directions.
The objects of the MAC Act include "to deter fraud in connection with compulsory third-party insurance": see s 5(1)(g). That object supported the granting of an exemption. The claims assessor did not identify any particular object of the MAC Act which supported declining the insurer's discretionary exemption application.
The insurer submitted that claims assessor fell into error by considering that the objects of the MAC Act supported declining a discretionary exemption application in circumstances where a long time had passed since the motor vehicle accident. His sole statutory task was to consider whether the claim was not suitable for assessment. Its suitability or otherwise for assessment was entirely unaffected by the time which had passed since the accident, and the objects of the Act did not alter this.
The claims assessor did not identify which of the objects of the Guidelines favoured a decision that the claim was suitable for assessment. Some of those objects are set out at [15] of his reasons. He omitted the objects in cls 1.14.4 and 1.14.5. While it may be guessed that the claims assessor had clause 1.14.1 in mind ("to provide a timely, fair and cost effective system for the assessment of claims..."), the insurer submitted that that is not an object which can properly be relied upon to take into account costs or delay when determining the non-suitability of a claim for assessment.
The insurer submitted that the object in cl 1.14.1 of the Guidelines is concerned with the timeliness and fairness of the system for the assessment of claims. The question for the claims assessor is whether the claim should be assessed at all. This object is not relevant.
Secondly, cl 1.13 of the Guidelines provides that the objects of CARS in cl 1.14 should be used as an aid to the interpretation of these Guidelines. The objects of CARS are not strictly relevant to determining whether a matter is not suitable for assessment at CARS (or, at least, not in the way in which the claims assessor relied upon them). Further, the claims assessor was not using the objects as an aid to interpretation of cl 14.16.11, but rather as a means of impermissibly expanding the statutory test of whether a claim is not suitable for assessment, by asking whether it should be assessed, not because of its suitability or otherwise, but because it has been in the system too long.
Thirdly, the statutory question the claims assessor had to ask himself was whether the claim was not suitable for assessment on the basis of the insurer's allegation (Guidelines, clause 14.16.11; Taylor at [34]; Banos at [41]-[43]). The question of whether the claim was not suitable for assessment because of the allegation that Ms Qin had made false and misleading statements was wholly unrelated to the question of whether the claim should be determined quickly because it was five years since the accident, and to the question of whether a curial determination would be more costly.
For these reasons, the claims assessor's consideration of cost and delay as factors in favour of refusing the discretionary exemption application indicated that he was asking himself the wrong question. He was not asking whether the claim was not suitable for assessment on the ground advanced by the insurer; rather, he was considering whether it would be preferable for the claim to be assessed so as to avoid further costs and delay. That constituted a constructive failure to exercise jurisdiction.

Ms Qin's submissions

The insurer submitted that in citing the objects in the Guidelines, the claims assessor took into account irrelevant considerations.
This submission should be rejected. The claims assessor was certainly entitled, if not required, to consider the objects of CARS to guide his interpretation of the Guidelines and the exercise of his discretion.
The insurer submitted that another consideration of the objects was deterring fraud. Ms Qin noted that no allegation of fraud has been made to date.
Finally, the insurer submitted that the time since the motor accident was an irrelevant consideration even though an object of CARS is to provide a timely resolution of the matter. Exempting the matter and requiring the commencement of Court proceedings would undoubtedly add time and cost. As such, Ms Qin submitted that the claims assessor did not taken into account irrelevant considerations in considering the object of CARS.

Consideration

As Adamson J stated in Feng at [38], the effect of s 92(1)(b) of the MAC Act and of cl 14.16 of the Guidelines is that, with the exception of the circumstances of the claim at the time of its consideration, it is for the assessor to decide what to take into account and what weight to give particular factors when determining whether a claim is not suitable for assessment at CARS. Certainly those factors may include the objects of the Guidelines, which under cl 1.13 "should be used as an aid to [their] interpretation". As stated earlier, those objects include cl 1.14.1, to provide a "timely, fair and cost effective system for the assessment of claims".
More to the point, a consideration will only be irrelevant as a matter of law if the assessor is bound, expressly or by necessary implication, not to take it into account: see Minister for Aboriginal Affairs v Peko-Wallsend Limited (1986) 162 CLR 24 at 38-41 per Mason J. It is not suggested, nor could it be, that s 92(1)(b) of the MAC Act binds the claims assessor not to take into account the potential for further delay and increased legal costs when considering whether to grant a discretionary exemption application. In my view, the assessor's reasons sufficiently explain his path of reasoning and refusal to grant a discretionary exemption. As such, I am not persuaded that there was any error of law on the face of the record or jurisdictional error. Ground 2 fails.

Result

The result is that the insurer has failed to establish an error of law on the face of the record or jurisdictional error. The judicial review fails. The insurer's summons filed 17 September 2019 is dismissed.

Costs

Costs are discretionary. Costs usually follow the event. The insurer is to pay Ms Qin's costs on an ordinary basis.

THE COURT ORDERS THAT: (1) The plaintiff's summons filed 17 September 2019 is dismissed. (2) The plaintiff is to pay the first defendant's costs on an ordinary basis.

Amendments 06 August 2020 - Coversheet - Representation of Counsel amended 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: 06 August 2020

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