IAG Ltd t/as NRMA Insurance v Abiad

Sakine Alameddine (Second Defendant) State Insurance Regulatory Authority of New South Wales (SIRA) (Third Defendant) Richard Buckley, in his capacity as a claims assessor of SIRA (Fourth Defendant) Representation: Counsel: M Robinson SC with B Wilson (Plaintiff) N Chen SC with J de Greenlaw (First and Second Defendants)

Solicitors: Hall & Wilcox (Plaintiff) Thomas Booler Lawyers (First and Second Defendants) Crown Solicitor's Office (Third and Fourth Defendants) File Number(s): 2018/93277 Publication restriction: Nil

Judgment

1. HIS HONOUR: By summons filed on 23 March 2018, IAG Ltd t/a NRMA Insurance seeks the following relevant orders: 1. An order in the nature of certiorari or, alternatively, a declaration setting aside or declaring invalid the decisions of the fourth defendant, Richard Buckley, in his capacity as a claims assessor of the State Insurance Regulatory Authority of New South Wales (SIRA), the third defendant, dated 7 February 2018, in respect of the first defendant, and 8 February 2018 in respect of the second defendant to refuse the plaintiff's applications for an exemption ("the decisions") made pursuant to s 92(1)(b) of the Motor Accidents Compensation Act 1999 ("the Act"). 2. An order in the nature of prohibition or, alternatively, an injunction preventing the defendants or any of their officers, servants or agents from acting on or taking any further step in reliance on the decisions. 3. An order in the nature of mandamus, remitting the matters to the third defendant for allocation of a different claims assessor to re-determine the plaintiff's exemption applications according to law.
2. The grounds upon which the plaintiff claims to be entitled to relief are in summary as follows.
3. The first and second defendants were injured in a motor vehicle accident that occurred on 24 February 2014 and they each lodged a claim for personal injury damages against the plaintiff with the third defendant. The first and second defendants are husband and wife. Their personal injury damages claims came to be heard before a claims assessor, appointed by the third defendant pursuant to s 99 of the Motor Accidents Compensation Act 1999. Evidence in one case was to be evidence in the other.
4. In the course of the proceedings before the third defendant, the plaintiff made a number of formal applications, both oral and written, seeking an exemption of the first and second defendants' personal injury damages claims from being assessed by SIRA pursuant to Part 4.4 and Chapter 5 of the Act. The applications were all made pursuant to s 92(1)(b) of the Act and upon the basis that the plaintiff had notified the first and second defendants of an allegation that they had made a false or misleading statement in a material particular in relation to the injuries, loss or damage it was alleged they had sustained in the accident.
5. A claims assessor, the fourth defendant, determined the applications on 7 February 2018, in respect of the first defendant, and 8 February 2018 in respect of the second defendant. The exemption applications were all refused. Written reasons were provided. The claims assessor determined that the matters were suitable for assessment at the Claims Assessment and Resolution Service ("CARS"), a unit of the third defendant established by s 98 of the Act.
6. The plaintiff contends that there are a number of jurisdictional errors and/or errors of law on the face of the record that occurred in the making of the decisions within the meaning of s 69 of the Supreme Court Act 1970. Alternatively, the plaintiff alleges that the claims assessor constructively failed to exercise his statutory power in making the decisions.
7. As to the first defendant, the claims assessor's reasons expressly incorporated the reasons for decision as to earlier exemption applications that were made by the plaintiff in the proceedings dated 1 May 2017, 5 September 2017 and (part of) 12 December 2017. As for the second defendant, the claims assessor's reasons expressly incorporated the reasons for decision as to earlier exemption applications that were made by the plaintiff in the proceedings dated 6 or 7 February 2018 (in the first defendant's matter), in part, and dated 1 May 2017, 5 September 2017 and (part of) 12 December 2017.
8. With respect to the decisions relating to both the first and defendant, the plaintiff identified two alleged errors.

The first error

1. The claims assessor misunderstood or misconstrued the scope and nature of his power pursuant to s 92(1)(b) of the Act and incorrectly applied that power to the applications. He approached the question to be determined on the basis that the alleged false or misleading statements had to be "evaluated" in the context of all the material provided by the defendants and as to the seriousness of the alleged statements. The plaintiff contends that this approach was wrong in law. It was not the correct legal approach. Accordingly, the decisions are invalid.

The second error

1. The claims assessor in fact evaluated the alleged false or misleading statements and made factual findings and determinations about their seriousness in his decisions. Such findings were not open to him. Accordingly, the decisions are invalid.
2. The plaintiff maintains that in these circumstances the decisions are invalid and should be set aside.

Guiding principles

1. These proceedings invoke the Court's judicial review (or supervisory) jurisdiction derived from s 69 of the Supreme Court Act which provides for the making of orders "in the nature of" the former prerogative writs, such as the former writ of certiorari. This jurisdiction is important as it enables the supervision of executive and administrative decision making in New South Wales. It is constitutionally recognised and protected by s 73 of the Commonwealth Constitution: see Kirk v Industrial Court of NSW (2010) 239 CLR 531; [2010] HCA 1 and the Hon JJ Spigelman AC, "The Centrality of Jurisdictional Error" (2010) 21 Public Law Review 77.
2. All that is required for the plaintiff to establish a judicial review case and enliven the Court's power to issue remedies is for the Court to find an error of law on the face of the record, being the written reasons: see Supreme Court Act, s 69(3), (4). Errors of law on the face of the record need not be errors going to jurisdiction: Garcia v Motor Accidents Authority of NSW (2009) 54 MVR 102; [2009] NSWSC 1056 at [21]-[24]; see also Kirk at [66]-[70] and [78]-[90].

Procedural history

1. The motor vehicle accident occurred on 24 February 2014. The first defendant was driving with his wife, the second defendant, as his passenger. A driver insured by the plaintiff collided with their vehicle.
2. On 17 September 2014, the plaintiff admitted liability for the claims.
3. On 22 January 2016, the second defendant applied for CARS assessment and the first defendant did so on 15 June 2016. The third defendant appointed Mr Watts as the claims assessor for both matters.
4. At preliminary conferences on 12 August 2016 and 26 October 2016, the parties agreed that both matters should be heard together, with evidence in one to be evidence in the other. They agreed that the matters were appropriate for CARS assessment. The matters were given a hearing date of 7 February 2017.
5. On 6 February 2017, in breach of earlier directions, the plaintiff served surveillance material, most of which it had possessed for several months.
6. At the assessment hearing on the following day, the first defendant withdrew his claim for domestic assistance provided by the second defendant, thereby reducing his claim from $185,049 to $24,746, now limited to a claim for past and future medical expenses plus regulated costs. Mr Watts declined to allow reliance on the lately served surveillance material. The plaintiff then indicated for the first time that it wished to make an exemption application under s 92(1)(b) of the Act. This was the first exemption application. This meant the assessment hearing could not proceed.
7. In written submissions, the plaintiff argued that the matters were unsuitable for CARS assessment because the first and second defendants had allegedly made false or misleading statements in connection with their claims. By decisions dated 1 May 2017, Mr Watts refused the exemption application and held that the claims were suitable for CARS assessment.
8. On 10 May 2017, the plaintiff wrote to Mr Watts alleging jurisdictional error and requesting him to "reconsider" his exemption determination. This was the second exemption application. On 5 June 2017, the third defendant reallocated the claims to Mr Buckley as Mr Watts had become unavailable. Mr Watts did not determine the second exemption application.
9. By written submissions dated 16 June 2017, the plaintiff applied for Mr Buckley to consider the exemption issue "afresh". This is the third exemption application. By decisions dated 5 September 2017, Mr Buckley refused the third exemption application for each claim.

The first error - the first defendant

1. The plaintiff submitted that the claims assessor misunderstood or misconstrued the scope and nature of his power pursuant to s 92(1)(b) of the Act and incorrectly applied that power to the applications. He approached the question to be determined on the basis that the alleged false or misleading statements had to be "evaluated" in the context of both the material provided by the first defendant and the seriousness of the alleged statements.
2. The error is said to be found at paragraph 5 of the claims assessor's decision dated 7 February 2018 in which he specifically incorporated the: "… reasons and material referred to in the Procedural Decision of CARS Assessor John Watts of 1 May 2018, my Procedural Decision of 5 September 2017 and paragraphs 1 through 8 of my First Assessment Conference report dated 12 December 2017."
3. More particularly, at paragraphs [35]-[42] of his Procedural Decision in relation to the first defendant dated 5 September 2017, the claims assessor specifically "evaluated" each of the false or misleading statements.
4. In relation to the walking stick, the claims assessor found that the statement was not "false" because there was a significant temporal deficiency in the plaintiff's labelling of the first defendant's statement as false. With respect to the lawn mowing, the claims assessor found (although "without making a determinative statutory interpretation") that an historical statement should relate to "the claim" which in his view is the claim being pursued by the first defendant. In relation to prior injuries and the claim form, the claims assessor found there was some substance to the plaintiff's allegations but then found that the statement in question may or may not have been an error or an oversight. With respect to the loss of consciousness, the claims assessor found it conceivable that the statement in question could be false but that it equally could be true. Finally, in relation to driving and walking capacity, the claims assessor found that the surveillance and Facebook material were isolated short-time recordings of the first defendant's activities which were not inconsistent with his statements, given the vagaries of estimations of time and distance.
5. The plaintiff contended that such an approach was wrong in law and that there was a constructive failure on the part of the claims assessor to exercise his jurisdiction by erroneously proceeding to "evaluate" for himself each of the alleged false or misleading statements when determining the applications: see Allianz Australia Insurance Ltd v Tarabay at [65]-[67], Insurance Australia Ltd t/as NRMA Insurance v Banos (2013) 65 MVR 312; [2013] NSWSC 1519 at [35]-[43] and Insurance Australia Ltd t/as NRMA Insurance v Taylor (2017) 80 MVR 190; [2017] NSWSC 507 at [34].

The first error - the second defendant

1. The plaintiff again submitted that the claims assessor misunderstood or misconstrued the scope and nature of his power under s 92(1)(b) of the Act and that he incorrectly applied that power to the applications. He is said to have approached the question to be determined on the basis that the alleged false or misleading statements had to be "evaluated" and determined or partly determined in the context of both the material provided by the second defendant and the seriousness of the alleged statements.
2. The error is said to be found at paragraph 5 of the claims assessor's decision dated 8 February 2018 in which he specifically incorporated the: "…reasons and material referred to in the procedural Decision of CARS Assessor John Watts of 1 May 2018, my Procedural Decision of 5 September 2017 and paragraphs 1 through 8 of my First Assessment Conference report dated 12 December 2017."
3. More particularly, at paragraphs [37]- [42] of his Procedural Decision in relation to the second defendant dated 5 September 2017, the claims assessor specifically "evaluated" each of the false or misleading statements. In relation to the lawn mowing, the claims assessor found that the second defendant's statement was made in error and further that if she were intending to mislead in her witness statement, it was "falsity without guile". The claims assessor went on to find that the error was logically plausible given that the second defendant was illiterate even in her own language. Concerning her pre-existing depression, the claims assessor specifically found that "it would be unsafe to conclude that the [second defendant] made a false or misleading statement". With respect to previous back pain, the claims assessor found that the statement in question was simply made in error and was not misleading. Finally, in relation to her inability to walk to the shops, the claims assessor found that the statement in question was "not necessarily indicative of being considered 'false or misleading'."
4. The plaintiff contended that this approach was wrong in law. There was a constructive failure on the part of the claims assessor to exercise his jurisdiction by erroneously proceeding to "evaluate" each of the alleged false or misleading statements when determining the applications. In doing so, the claims assessor then allowed that evaluation to infect his decision-making by expressly finding that "the various inconsistencies and statements submitted by the [plaintiff]" were "at one end of the spectrum": see Procedural Decision in relation to the second defendant dated 5 September 2017 at [48] and [50]. The plaintiff submitted that, on any view, these unlawful findings were critical to the claims assessor's consideration of the suitability of the claim for assessment within the CARS process. This is said to be an incorrect legal approach that invalidates the decision.

The second error - both defendants

1. The second error overlaps with the first. The claims assessor impermissibly "evaluated" the alleged false or misleading statements and made factual findings and determinations about their seriousness in his decisions in the manner set out above. Such findings were not open to him: Insurance Australia Ltd t/as NRMA Insurance v Taylor at [38].

The first error

1. The defendant's drew attention to the following. On the one hand, in Insurance Australia Ltd t/as NRMA Insurance v Banos at [42], Campbell J said : "[T]he 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":
2. On the other hand, an assessor must still "undertake some evaluation of the allegation of the making of a false and misleading statement in order to determine if the allegation is such that overall the claim is not suitable for a CARS assessment": Insurance Australia Ltd t/as NRMA Insurance v Milton (2016) 78 MVR 391; [2016] NSWSC 1521 at [26]. In forming this "preliminary view", the "seriousness of what has been alleged must be a consideration": Insurance Australia Ltd t/as NRMA Insurance v Taylor at [38].
3. According to the defendants, the claims assessor formed a preliminary view about the plaintiff's allegations. However, contrary to the plaintiff's contentions, he did not make concluded factual findings. For example, he said at [17], "I certainly have not made factual findings at this stage". The defendant contends that as the reasons make plain, the claims assessor undertook a preliminary evaluation of the allegations, including their apparent strength and seriousness, in order to determine if the claims were suitable for a CARS assessment.
4. With respect to the first defendant, the claims assessor reached the following preliminary views: 1. his statement that he needed a walking stick was not necessarily contradicted by surveillance and photographs taken some time later; 2. his claim for lawn mowing was no longer pursued, so there was no false statement in respect of the claim now brought; 3. in relation to prior injuries and the claim form, the plaintiff's allegations prima facie had some substance, but explanations such as error or oversight may also be available; 4. the statement about loss of consciousness was overall of no significance; and 5. in relation to driving and walking capacity, his statements were not necessarily inconsistent with brief and isolated surveillance material.

The second error

1. In response to the plaintiff's contentions in this respect, the defendants submitted that the claims assessor properly undertook only a preliminary evaluation of the statements, and did not make concluded factual findings.

Legislative framework

1. The following provisions of the Act should be noted: "69 Claims Assessment Guidelines of Authority (1) The Authority may issue guidelines for or with respect to procedures for the assessment of claims under Part 4.4 and associated matters ('Motor Accidents Claims Assessment Guidelines'). 92 Claims Exempt from Assessment (1) A claim is exempt from assessment under this Part if: (a) the claim is of a kind that is exempt under Motor Accidents Claims Assessment Guidelines or the regulations, or (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. 94 Assessment of Claims (1) The claims assessor is, in respect of a claim referred to the assessor for assessment, to make an assessment of: (a) the issue of liability for the claim (unless the insurer has accepted liability), and (b) the amount of damages for that liability (being the amount of damages that a court would be likely to award). 106 Motor Accidents Monitoring and Oversight (1) Claims assessments under this Part are subject to relevant provisions of Motor Accidents Claims Assessment Guidelines relating to those assessments."
2. The following clauses of the Claims Assessment Guidelines should also be noted: "Chapter 8 - Exemption of claims from general assessment (s 92(1)(a)) 8.1 An application or reply by either party for a certificate of exemption under this chapter must: 8.1.1 be in the form approved by the Authority; or 8.1.2 be in a form as directed by the Registrar, PCA or Claims Assessor; and 8.1.3 set out or be accompanied by the particulars and information required by that form or as otherwise directed by the Registrar or PCA. … 8.11 For the purpose of s 92(1)(a), the PCA shall issue a certificate of exemption when, as at the time of the consideration of the application, and after a preliminary assessment of the claim, the PCA is satisfied that the claim involves one or more of the following circumstances: … 8.11.6 the insurer alleges that the claim is a fraudulent claim in terms of the circumstances of the accident giving rise to the claim. Unsuitable for assessment under s 92(1)(b) 14.11 For the purpose of s 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. … 14.13 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. … 14.16 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 consideration of the claim. This may include, but is 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."

The allegations

1. As already noted, the plaintiff's applications for exemption proceeded under s 92(1)(b) of the Act and cl 14.16.11 of the Claims Assessment Guidelines. The plaintiff contended that the matters ought to have been exempted on discretionary grounds. The basis for the applications was said to arise out of a series of false and misleading statements, within the meaning of s 117 of the Act, which the plaintiff alleges have been made by the first and second defendants in connection with material aspects of their claims. It becomes necessary to describe those allegations in terms. The following extracts are taken from the plaintiff's submissions dated 17 February 2017 in support of the exemption applications made below.
2. The following allegations relate to the first defendant: "The walking stick 18. The first false or misleading statement relates to the claimant's alleged accident related need for a walking stick. In this respect, the claimant clearly stated at paragraph 23 of his statement dated 17 March 2016 that 'Following the accident I have had to use a walking stick.' 19. Similarly at page 14 of Ms Memon's report dated 28 April 2015, she recorded the claimant's assertion that he 'needs to use his stick at all times due to pain and dizziness'. At page 9 of Ms Memon's report, she recorded that the claimant alleged 'use of his stick for chair and toilet transfers'. 20. What is more, the claimant attended on Dr Breit (orthopaedic surgeon) on 16 March 2015 and again on 5 May 2016 with a walking stick. Further, in his report of 9 May 2016, Dr Breit recorded at page 3 the claimant's assertion that 'he uses a walking stick as a combination of problems with his knees and back and saying that when his neck is sore there is poor balance as well as headaches, "I keep the stick in my hand just in case".' 21. It is submitted that these statements are false and contrary to the surveillance evidence and Facebook evidence relied on by the insurer. The Facebook evidence covers the time period April 2013 to December 2016 and the surveillance evidence covers the time period August 2016 to January 2017. 22. A walking stick is not depicted in any of the images of the claimant contained in the Facebook evidence. 23. Further, the claimant is not observed using a walking stick at all (whether to ambulate or transfer from a chair) at any point in the available surveillance footage nor is the claimant even observed to have a walking stick in his possession in any of the available footage. 24. The only time periods that the claimant has been observed using a walking stick by third parties was when he was assessed by Dr Breit (twice) and Ms Memon for the purposes of his claim. The lawn mowing 25. The second statement which is alleged to be false or misleading is located at paragraph 27 of the claimant's statement dated 17 March 2016. He states 'before the accident I was able to undertake chores such as lawn mowing with the manual mower. Since the accident I have not been able to mow the lawn as I used to, and we now have to pay $70.00 every three weeks to have our lawn mowed.' 26. Similarly, in the claimant's particulars at A8 dated 9 June 2015 it is specifically alleged that the claimant did 'not previously paid [sic] for household assistance however, now pays for a gardener $65.00 every three weeks to cut the grass'. 27. However, it is submitted that these statements (which go to material aspects of the claim) are false and are contradicted by the previous questioning of Ms Memon on 28 April 2015 to whom the claimant stated that lawn mowing and pruning used to be his main role until his accident in 2011 and since that time he had paid for private services to complete the lawn mowing and pruning. Prior injuries - the claim form 28. The third false or misleading statement concerns the claimant's statements at paragraphs 34 and 35 of the claim form. In this respect, the claimant asserts at question 34 that he has only suffered a prior injury or illness to his lower back. However, at page 3 of his report dated 16 March 2015, Dr Breit records that at May 2011 (when the claimant was reviewed by Dr Breit in relation to a serious work injury which resulted in the medical retirement of the claimant and his continued receipt of weekly compensation benefits up until he was entitled to the aged pension - none of which is declared by the claimant at question 35), the claimant also previously suffered from right knee pain preventing him from squatting or kneeling and chronic neck pain and stiffness, which was variable. 29. It is inconceivable that the claimant would have forgotten these earlier injuries/illnesses to his right knee and neck when completing the claim form. This is particularly so in circumstances where the claimant allegedly began receiving care from Mrs Alameddine and workers compensation payments as a result of such conditions in 2011. 30. In the circumstances, it is submitted that the claimant's declaration at question 34 of the claim form that the only previous injury/illness he suffered was to his lower back is false. Loss of consciousness 31. The fourth false or misleading statement is found at paragraph 4 of the claimant's statement dated 17 March 2016 where he plainly states 'I briefly lost consciousness as a result of the impact'. Such a statement is material given that the claimant alleges injury to his head. 32. However, the insurer submits that the statement is false as it is contradicted by the Ambulance report and the Canterbury Hospital discharge referral summary. Inability to drive for more than five minutes and walk for more than ten minutes 33. A number of general assertions are made by the claimant as to his self-reported activity limitation and functional capacity tolerances, which are set out at pages 7 to 9 of the report of Ms Memon dated 28 April 2015. 34. In particular, the claimant alleges at page 9 of Ms Memon's report that driving 'has become more difficult since the recent accident and he can only drive for 10 minutes due to the pain and dizziness experienced, especially when rotating the neck'. Similarly, the claimant stated to Dr Breit on 5 May 2016 that 'he can drive for about five minutes'. 35. It is submitted that these statements are false and are contradicted by the available surveillance evidence which shows the claimant engaged in the act of driving for periods far in excess of five to ten minutes on multiple occasions and often. 36. Similarly, the insurer alleges that the claimant's assertion at page 7 of Ms Memon's report that he can only walk around the house and to/from the car for up to five to 10 minutes due to dizziness and headache is false and is contradicted by the available Facebook evidence which reveals that the claimant attended the Bankstown Fair on or about 12 April 2014, participated in spear fishing with a friend on or about 21 December 2014 and participated in the Lakemba to Perry Park demonstration march on or about 25 May 2014."

The decisions

1. The first decision contains the following reasons of the claims assessor, which it becomes necessary for present purposes to repeat: "SUBMISSIONS 35. I have read and considered the multiple exemption submissions lodged by each party since the first direction made by Assessor Watts. The insurer's substantive submissions are dated 17 February 2017 contain extensive particulars of the claimant's alleged 'false and misleading statements in a material particular in relation to injuries loss and damage sustained by the claimant in the accident.' However as a preamble to the critical allegations, at paragraphs 8 through 14 of the submissions there is essentially a narrative describing the events that gave rise to the insurer's assertion of a credit issue and subsequent indication that it intended to make allegations under cl.14.16.11 of the Guidelines. 36. At paragraphs 18 to 36 and 41 the insurer gives particulars of its allegations under six sub headings. It is convenient to consider individually each of the sets of allegations with the claimant's responses as set out in submissions dated 25 July 2017. The walking stick 37. The insurer submits that the claimant's assertion at [23] of his statement that, 'following the accident I have had to use a walking stick' is, together with other similar statements are 'false' relying principally on the surveillance and Facebook material. I view with agreement the claimant's responses particularly at [36] through [38]. There is, in my view a significant temporal deficiency in the insurer's labelling of the claimant's statements as false. The lawn mowing 38. It is asserted at [25] to [27] that the claimant falsely claimed that he had carried out lawn mowing tasks before the accident and after had to pay for such activities. The claimant submits that any such allegation cannot be related to a 'material particular in relation to injuries, loss or damages sustained' as the claimant was not making any claim for domestic assistance at the time that the allegation was made, that is 17 February 2017. It may have been that the claimant 'has made a false or misleading statement'. However without making a determinative statutory interpretation it would seem that an historical statement should relate to 'the claim', which is in my view the claim being pursued by the claimant. Prior injuries - the claim form 39. There is some substance to the insurer's allegations concerning the claimant's omissions in fully detailing his pre-accident injury history. Was it an error was it an oversight as posited in the claimant submissions? Maybe both, maybe neither. However what is significant is that the insurer was aware of the basis of this allegation for some two years before it was subsequently made, a factor which must be considered as to the falsity and particularly the 'misleading' character of the statements. Loss of consciousness 40. It is conceivable that the statement made by the claimant that he 'briefly lost consciousness as a result of the impact' could be false but equally, given its general descriptive character it could be true. It is a general statement made in the claimant's claim form. However it was certainly clear to both parties that the objective evidence from the ambulance service, the contemporaneous hospital clinical notes and the medical certificate accompanying the claim form the any head traumas was negligible and of no significance. Driving and walking capacity 41. The conclusions relied upon by the insurer flowing from the surveillance and Facebook material are isolated short time recordings of the claimant's activities, which are submitted by the counsel for the claimant as not inconsistent with the claimant's statements, given the vagaries of estimations of time and distance. 42. At [41] of the insurer's submissions various suspicions, speculations and projections are promoted as 'additional factors'. They are submissions and, in my view can only be considered as such in my overall evaluation of whether the claim made by the claimant is suitable for assessment. CONSIDERATION 43. The substantive submission relevant to an allegation of false or misleading statements pursuant to clause 14.16.11 of the Guidelines requires an assessor to evaluate the allegations made by the insurer and the answer the ultimate question of suitability. That evaluation may require a consideration of a spectrum of allegations ranging from innocent inconsistencies, making untruthful or exaggerated statements through to blatant fraud. Although referred to at [14], fraud and the operation of s 117 of the Act are not specifically alleged but are speculative consequences of future conditional circumstances. In Tarabay the allegation was one of fraud and forgery. Clearly those are issues which fell within the type of case considered by Davies J as requiring an almost mandatory exemption. 44. At the other end of the spectrum, as is the experience of not only assessors but judges over decades, are issues of inconsistency that arise in histories provided to medical examiners, in statements and to government officials. It is my view that the insurer's allegations are to be considered at this part of the spectrum. Any scope for extended cross-examination in respect of these or similar issues is open at a CARS assessment. To say that the opportunity for full cross-examination is limited is not correct. Whereas a CARS assessor can limit cross-examination, it does not follow that a CARS assessor 'will' limit cross-examination when the interests of justice to both parties demand that extended questioning be allowed. 45. There is however another issue which has been rejected by the insurer as relevant to my evaluation, that of timing as noted at [43] of the insurer's first submission and again at [22] of the insurer's submission of 16 June 2017. I have referred above at [24] to the temporal criteria enunciated by Campbell J in Banos. In my view the extrapolated principles in Davis are also apposite to my evaluation. The insurer's final written submissions dated 1 February 2017 prepared for the imminent assessment conference did not contain any reference to the claimant's credit as an issue. 46. I accept the claimant's submission that the vast majority of individual items referred to by the insurer have been included in documents or material which had been in the possession of the insurer for many months before the assessment conference and some for much longer. The majority of the surveillance material was provided to the insurer, and I assume its solicitor on about 20 September 2016. The material was not served until Monday 6 February 2017 for an assessment conference commencing the next day. 47. I have in my review of the judicial authority guiding the exercise of my discretionary power, highlighted the comments made by Justices Rothman and Campbell in Tarabay and Banos. The former referred to an application being 'reasonably put' and the second referred to it being made 'early'. In my view in this case the insurer's conduct has been inconsistent with each of these prescriptions. As much as the insurer rejects any time limitation issue in submitting its exemption application, its behaviour in maintaining a position that the claim was suitable for assessment through until after the commencement of the assessment conference on 7 February 2017, is inconsistent in my view with a subsequent exemption application being 'reasonably put' or at an 'early time'. Any costs consequences imposed on the claimant by the insurer's actions are not the subject of any comment. These factors are not determinative of my decision but are secondary elements which I have considered in my evaluation process. 48. The various inconsistencies and statements submitted by the insurer are in my view at one end of the spectrum of inconsistency and incorrectness which can appropriately be called 'false' within one interpretation of the meaning of that word, and if considered in isolation might also be considered misleading. However the specific allegations should not be considered in isolation. They are to be considered and evaluated in the context of all of the material provided by the claimant as to assessing unsuitability for the assessment process. The insurer's allegations are not comparable with the character of allegations considered by Rothman J in Tarabay."

Relevant judicial authorities

1. In Insurance Australia Ltd t/as NRMA Insurance v Banos, the claimant was injured in a motor vehicle accident and sought compensation pursuant to the provisions of the Act. In making the application the claimant asserted that one of her principal injuries was an injury to her right hand which required surgery. She completed a claim form in which she stated that she had not had any other injury to her hand and that she had never made a claim for personal injury compensation. The insurer subsequently came into possession of material showing that the claimant had in fact made a claim for injury sustained in a motor vehicle accident in 2005 that had been assessed by a claims assessor. There was also evidence that she had suffered a fall in 2006 resulting in shoulder pain of which she was continuing to complain in 2009. There was also evidence that about two weeks before the subject accident, the claimant had consulted her general practitioner complaining of an inability to cope with the demands made upon her by her family, at which time she was prescribed anti-depressant medication. Finally, the insurer had covertly obtained footage which was said to demonstrate the claimant freely using her hand and arm.
2. The insurer relevantly made an application pursuant to s 92(1)(b) for discretionary exemption from the statutory assessment process on the basis of the claimant having made false and misleading statements.
3. At [37]-[39], Campbell J said this: "[37] The matters relied upon by the insurer to found its application for discretionary exemption are the very type of thing inherently capable of founding a successful cross-examination as to the credit of a claimant. By credit I am referring to the claimant's reliability and honesty as an accurate medical historian. In personal injuries litigation this question will often be fundamental to the determination by the court or tribunal of the nature and extent of the injuries and disabilities caused by the negligence of the defendant. [38] As Rothman J pointed out in Tarabay it is erroneous for a claims assessor, called upon to determine the question raised by s 92(1)(b) - that is whether the claim 'is not suitable for assessment under' Part 4.4 - to decide for himself or herself in the context of that preliminary assessment whether the impugned statements are in fact false or misleading; whether the histories proffered are accurate; whether the claimant's presentation to doctors, and on other occasions, is consistent with the alleged injuries; whether apparent discrepancies are likely to have an innocent explanation; and whether or not the claimant's account of her injuries and disabilities should be believed. [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."

Consideration

1. Having regard to the skilful way in which this case was argued before me, the difference between the parties distilled to a question of whether or not the claims assessor did more than merely express a preliminary view about or upon the plaintiff's allegations that the first and second defendants provided false and misleading particulars in relation to their claims. That in turn narrowed the inquiry to a semantic assessment of what the claims assessor had to say about those allegations.
2. The plaintiff drew attention to the claims assessor's statement at [37] of his reasons with respect to the first defendant's walking stick references that there was, "in [his] view, a significant temporal deficiency in the insurer's labelling of the claimant's statements as false". The plaintiff contended that this was no more and no less than a finding that the statement was not false: it was not preliminary in any acceptable sense of the term.
3. Similarly, in reference to the lawn mowing issue at [38] of the claims assessor's reasons with respect to the first defendant, where he indicated that the first defendant "may" have made a false or misleading statement. He continued, saying that "without making a determinative statutory interpretation it would seem that an historical statement should relate to 'the claim', which is in my view the claim being pursued by the claimant". The plaintiff argued that these words indicate in effect that the claims assessor had erroneously dismissed the plaintiff's allegation in a final, determinative sense.
4. With respect to the prior injuries issue at [39] of the claims assessor's reasons in relation to the first defendant, he asked rhetorically, "Was it an error was it an oversight as posited in the claimant submissions? Maybe both, maybe neither". According to the plaintiff, when the claims assessor went on to say that "what is significant is that the insurer was aware of the basis of this allegation for some two years before it was subsequently made [thus amounting to] a factor which must be considered as to the falsity and particularly the 'misleading' character of the statements", he was unambiguously not dealing with the plaintiff's allegation in the context of s 92(1)(b) and cl 14.16.11 but was on the contrary expressing a final and ultimately dismissive view concerning it.
5. So far as concerned the loss of consciousness issue, dealt with by the claims assessor at [40] of his reasons with respect to the first defendant, the plaintiff maintained that the words "it was certainly clear to both parties … [that] any head trauma was negligible and of no significance" was a clear rejection of the plaintiff's allegation on this topic. The plaintiff submitted that in dealing with the allegation in this way, the claims assessor clearly dismissed it and thereby erroneously put it beyond the scope of his determination.

Discretionary considerations

1. The first and second defendants submitted that any relief to which the plaintiff might otherwise be found to be entitled should be refused on discretionary grounds. They relied upon abuse of process, delay and futility.

Abuse of process

1. The defendants emphasised that repeated applications for interlocutory orders will constitute an abuse of process if they are "unjustifiably vexatious and oppressive": D A Christie Pty Ltd v Baker [1996] 2 VR 582 at 603-4; Nominal Defendant v Manning (2000) 50 NSWLR 139; [2000] NSWCA 80. They submitted that the five exemption applications, brought on materially identical grounds, satisfy that description. In the result, the first defendant's modest claim remains part-heard some 18 months after it was originally listed to be heard, and the second defendant's claim has not been heard at all. There are significant costs implications in these circumstances, having regard to the statutory limitations upon recoverable costs under Chapter 6 of the Act and Schedule 1 to the Motor Accidents Compensation Regulation 2015.
2. The defendants contended that granting the relief sought by the plaintiff would only further this oppression.

Delay

1. The first and second defendants also submitted that the plaintiff's entitlement to relief ought to be refused because of delay, arguing that an applicant for judicial review may be denied relief where there is unreasonable or unwarrantable delay in seeking a remedy: R v Australian Broadcasting Tribunal; Ex parte Fowler (1980) 31 ALR 565 at 568. Unreasonableness is assessed in all of the circumstances: R v Transport Regulation Board [1940] VLR 19 at 34.
2. In the present case, the claims were lodged on 13 March 2015 and 13 July 2016. The plaintiff delayed until 7 February 2017, which was the first day set for the hearing, to bring the first exemption application. The defendants submitted that this was contrary to the intention of the Act that any redirection to the court system should occur "at an early time": Insurance Australia Ltd t/as NRMA Insurance v Taylor at [32]; Insurance Australia Ltd t/as NRMA Insurance v Banos at [43(b)].
3. The defendants submitted that the plaintiff should have sought judicial review by mid-2017 at the latest and at the very least should have done so following the 5 September 2017 determinations. Instead, the plaintiff persisted thereafter for many months making repeated applications based upon the same facts before finally seeking judicial review on 23 March 2018. The defendants maintained that these delays were unreasonable, well beyond the time prescribed by UCPR 59.10 and ought to disentitle the plaintiff to relief.

Futility

1. The defendants argued that relief should also be refused where it is clear that the decision-maker will later validly decide against the applicant for exemption: Riverina Transport Pty Ltd v Victoria (1937) 57 CLR 327; [1937] HCA 33 at 342-343; QBE Insurance (Australia) Ltd v Motor Accidents Authority of NSW (2013) 63 MVR 470; [2013] NSWSC 549 at [83]-[86]. The defendants submitted that "no reasonable assessor would find that the first defendant's part heard claim (which is essentially completed before the assessor) for medical expenses of $24,746 plus regulated costs should be removed from CARS (with all incurred costs thereby thrown away) and commenced afresh in the Local Court". The defendants also submitted that "the second defendants claim is similarly unremarkable and could not justifiably be removed from CARS with all the wasted costs and delay this would now bring". The defendants contended that "exemption from CARS would be manifestly inconsistent with the just and expeditious resolution of claims".

Consideration

1. Relief in the nature of certiorari and mandamus is discretionary. "[T]here is no closed category of cases in which such relief may be refused on discretionary grounds": Sasterawan v Morris [2008] NSWCA 70 at [73]. Grounds for refusing relief include "if a more convenient and satisfactory remedy exists, if no useful result could ensue, if the party has been guilty of unwarrantable delay or if there has been bad faith on the part of the applicant, either in the transaction out of which the duty to be enforced arises or towards the court to which the application is made": R v Commonwealth Court of Conciliation and Arbitration; Ex parte Ozone Theatres (Aust) Ltd (1949) 78 CLR 389; [1949] HCA 33 at 400.
2. In my opinion, there is in the present case no basis upon which to refuse relief to the plaintiff on discretionary grounds. It is not in my view correct to say that another assessor would necessarily or inevitably reach the same conclusion as Mr Buckley in the present case. It is inappropriate to say more about that here.
3. The delays have certainly been not inconsiderable. The multiplicity of exemption applications is indeed extraordinary in my experience. Fundamentally, however, in the course of his consideration of the plaintiff's several exemption applications, the claims assessor repeated the errors which the plaintiff has successfully highlighted in this Court. It was in one sense procedurally prudent for the plaintiff to attempt to have the claims assessor reconsider his position, having regard to the type of error that the plaintiff was asserting he was making. The course of repeated applications adopted by the plaintiff may in hindsight appear to have been ill advised but the provision of a different result from the claims assessor was not to my mind a forlorn prospect. The plaintiff is in this sense as much a victim of delay as the defendants.
4. I am equally not satisfied that the plaintiff has been engaged in any abuse of process. I did not understand the defendants to maintain this contention with particular enthusiasm in any event.

Orders

1. Accordingly, I make the following orders: 1. An order in the nature of certiorari quashing the orders of the fourth defendant made on 7 and 8 February 2018. 2. An order in the nature of mandamus remitting the matters to the third defendant for allocation to a different claims assessor to determine the plaintiff's exemption applications in accordance with law. 3. Reserve costs. 4. Direct the plaintiff and the first and second defendants within 21 days to provide my Associate with written submissions not exceeding three pages addressing the question of who should pay the costs of these proceedings.

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: 21 September 2018