Insurance Australia Group Limited t/as NRMA Insurance v Saraceni

Catchwords

[2018] NSWCA 264 Ali v AAI Ltd (2016) 757 MVR 502[2016] NSWCA 110 Allianz Australia Insurance Ltd v Rutland (2015) 73 MVR 211[2015] NSWCA 328 Boyce v Allianz Australia Insurance Ltd (2018) 96 NSWLR 356[2018] NSWCA 22 Campbelltown City Council v Vegan (2006) 67 NSWLR 372[2006] NSWCA 284 Dominice v Allianz Australia Insurance Ltd (2017) 81 MVR 249[2017] NSWCA 171 Frost v Kourouche (2014) 86 NSWLR 214[2014] NSWCA 39 Garcia v MAA (2009) 54 MVR 102[2009] NSWSC 1056 Hossain v Minister for Immigration and Border Protection (2018) 264 CLR 123[2018] HCA 34 IAG Limited v Sleiman (2017) 82 MVR 1[2017] NSWSC 1346 Kirk v Industrial Court of New South Wales (2010) 239 CLR 531[2010] HCA 1 Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421[2019] HCA 3 Minister for Immigration and Ethnic Affairs v Liang (1996) 185 CLR 259[1996] HCA 6 Minister for Immigration v Li (2013) 249 CLR 332[2013] HCA 18 NRMA Insurance Ltd v Motor Accidents Authority NSW (2004) 61 NSWLR 264[2004] NSWSC 56 Partridge v IAG Limited t/as NRMA Insurance (2019) 89 MVR 36

Judgment (42 paragraphs)

[1]

C 1945 Category: Principal judgment Parties: Insurance Australia Group Limited t/as NRMA Insurance (Plaintiff)

[2]

State Insurance Regulatory Authority (Second Defendant)

[3]

Thomas Newlyn, in his capacity as a medical assessor appointed by the Second Defendant comprising the Medical Review Panel; Samson Roberts, in his capacity as a medical assessor appointed by the Second Defendant comprising the Medical Review Panel; and Peter Anderson, in his capacity as a medical assessor appointed bv the Second Defendant comprising the Medical Review Panel (Third Defendant) Representation: Counsel: J Gumbert (Plaintiff) M Robinson SC with J Lucy (First Defendant)

[4]

Solicitors: Moray & Agnew Lawyers (Plaintiff) CBD Law (First Defendant) Crown Solicitor's Office (Second and Third Defendants) File Number(s): 2019/70134

[5]

Judgment

HIS HONOUR: By a further amended summons filed in Court on 31 July 2019, Insurance Australia Group Ltd, trading as NRMA Insurance ("the plaintiff") sought orders in the supervisory jurisdiction of this Court in the nature of certiorari, or alternatively, setting aside and declaring invalid a decision (and/or medical assessment and Review Panel Certificate) of a Medical Review Panel dated 4 December 2018. That Medical Review Panel was comprised of three medical assessors appointed by the State Insurance Regulatory Authority ("SIRA"): Dr Thomas Newlyn (Chairperson), Dr Samson Roberts and Dr Peter Anderson. Drs Newlyn, Roberts and Anderson, in their capacity as medical assessors, were listed jointly as the third defendant. The plaintiff also sought an order in the nature of a mandamus, remitting the matter the subject of the Review Panel decision and the Review Panel Certificate to the SIRA for reallocating to a different constituted review panel and other relief, if necessary.

[6]

FACTUAL BACKGROUND

These proceedings arise from a claim by Mr Eduardo Saraceni ("the first defendant") for damages under the Motor Accidents Compensation Act 1999 (NSW) ("the Act") for injuries allegedly caused by a motor vehicle accident on 28 October 2016.
The first defendant suffered from post-traumatic stress disorder ("PTSD") as a result of the accident.
The plaintiff is the Compulsory Third Party ("CTP") insurer of the vehicle at fault in the accident.
The second defendant, SIRA, is a State government agency which administers the entire CTP insurance and compensation scheme under the Act.
The third defendant is the medical assessors that comprised the Medical Review Panel, constituted under s 63 of the Act. Medical assessors are appointed under s 59 of the Act, and are part of the Medical Assessment Service ("the MAS"), a unit established pursuant to s 57A of the Act.
There was a medical dispute regarding the first defendant's degree of whole person impairment pursuant to s 58(1)(d) of the Act, such that his entitlement to damages for non-economic loss, pursuant to s 131 of the Act, was in issue.
On 13 July 2017, Dr Peter Snowdon provided a medico-legal report assessing the first defendant as having 22% whole person impairment.
On 26 November 2017, Dr Matthew Jones provided a medico-legal report assessing the first defendant as having 5% whole person impairment.
The first defendant applied to the MAS for an assessment of a permanent impairment dispute on 11 December 2017. Included in that application was a form indicating that the first defendant had assessed his difficulty in concentrating at 4 ("extremely").
The first defendant was assessed by medical assessor, Dr Alan D Jager (hereinafter, "Assessor Jager"). Assessor Jager provided a certificate under Pt 3.4 of the Act on 28 March 2018 stating that the first defendant's PTSD gave rise to a permanent impairment which was not greater than 10%. (Assessor Jager assessed that the first defendant's PTSD gave rise to a 5% whole person impairment and made a 1% provision for "adjustments % for the effects of treatment").
The first defendant successfully applied to the proper officer of the SIRA to refer the medical assessment to the third defendant, under s 63(1) of the Act.

[7]

GROUNDS FOR JUDICIAL REVIEW AND THE RELIEF CLAIMED

As stipulated in the further amended summons, the plaintiff contended that the decision of the third defendant consisted of three errors which were expressed as follows: 2. As to the review panel decision, the review panel erred in making its decision in the following respects: (a) The First Error - The review panel failed to comply with Clause 1.41 of SIRA's Motor Accidents Permanent Impairment Guidelines (made pursuant to section 44(1)(c) of the Act) in that the review panel failed to bring its findings of inconsistencies to the claimant's attention and to give him a chance to respond. In particular, the panel failed to bring the following inconsistencies to the claimant's attention: (i) On page 5, the review panel noted that Assessor Jager's assessment was that "His estimate of his concentration was more pessimistic than his real deficit." (ii) The panel noted on page 10 that "he did not exhibit a short-term or long-term memory deficit" and "His concentration was not impaired in this clinical interview with no problems in organising and answering questions." (iii) On page 10, the review panel recorded that the claimant reported: "I lose concentration, I get upset, I don't read now, I can watch comic movies but I don't watch them all the way through. I feel bad inside and / don't enjoy them. Before the accident I was paying the bills. I stopped now and my wife does it. My head is not working properly." (iv) On page 13, the panel noted "There were no specific concentration deficits obvious during the assessment interview." (v) The history given to the review panel, and the review panel's findings, were inconsistent with information obtained through the medical records (particularly the report of Assessor Jager, which was based on an assessment less than 8 months earlier), in a number of respects, including in relation to Self-Care and Personal Hygiene, Social and Recreational Activities, Concentration Persistence and Pace, and Adaptation. (b) The Second Error - The review panel was obliged to set out lawful reasons for its determination pursuant to section 61(9) of the Act and clause 16.24 of the SIRA's Medical Assessment Guidelines dated 1 October 2008 made pursuant to sections 44(1)(d) and 65(1) of the Act. The review panel failed to set out lawful reasons in a number of significant respects, inter alia, as follows: (i) The review panel failed to explain why it concluded, on page 11, that "There was consistency between the history of current psychiatric symptoms, presentation at the assessment interview and Findings on examination" in light of the apparent inconsistencies as set out at (a) above. (ii) There was internally inconsistent reasoning in that the review panel noted in its reasons that the claimant did not demonstrate concentration difficulties during examination but then found that the claimant had significant impairment of concentration. This was an unexplained leap in the reasoning process. (iii) The review panel failed to explain why it found that the claimant had a significant impairment of concentration in light of the inconsistencies referred to above, and in light of the review panel's own findings on examination. (iv) The review panel failed to explain why it concluded, on page 11, that the claimant's injuries had stabilised "given the time since the accident and the continued stability of symptoms" when in fact the review panel's apparent conclusion was that the claimant had deteriorated quite significantly since the assessment with Assessor Jager less than 8 months earlier. (c) The Third Error - The decision was vitiated by legal unreasonableness (Minister for Immigration v Li (2013) 249 CLR 332; [2013] HCA 18) in that: (i) no sensible review panel acting with due appreciation of its responsibilities would have assessed the claimant as having Class 3 impairment for "Concentration Persistence and Pace" in the circumstances where there were the inconsistencies set out at (a) above; (ii) the review panel failed to give adequate weight to relevant factors of great importance; a. That Dr Jager had found that the claimant's view of his concentration was more pessimistic than the reality. b. That the claimant demonstrated no concentration deficits on examination. (iii) the review panel reasoned illogically or irrationally; a. As set out at (b) above. And/or (iv) the decision lacks evident and intelligible justification. a. As set out at (b) above. 3. The review panel has committed error in law or fallen into jurisdictional error and/or it has constructively failed to exercise its jurisdiction in respect of each of or any of or a combination of the above grounds of judicial review and the review panel decision and certificate is accordingly invalid and it should be set aside.

[8]

LEGISLATIVE SCHEME

Section 131 of the Act provides that no damages may be awarded for non-economic loss unless the degree of permanent impairment of the injured person as a result of the injury caused by the motor vehicle accident is greater than 10% (see also ss 58(1)(d) and 61(10) of the Act).
Section 132(1) of the Act provides that, in the case of a dispute as to the degree of permanent impairment, a court may not award damages for non-economic loss unless the degree of permanent impairment has been assessed by a medical assessor under Pt 3.4 of the Act.
Part 3.4 of the Act concerns "Medical assessment" and applies to a disagreement between a claimant and an insurer about whether the degree of permanent impairment of an injured person as a result of an injury caused by the motor vehicle accident is greater than 10% (s 58(1)). Hence, Pt 3.4 of the Act applied to the first defendant's claim.
Section 57 provides various definitions, inter alia, as follows: 1. "medical assessment matters" are defined as meaning "any of the matters referred to in s 58"; 2. "medical assessor" is defined as meaning "a person appointed under this Part to make an assessment under this Part"; and 3. "medical dispute" means "a disagreement or issue to which this Part applies".
Section 57A provides: 57A Motor Accidents Medical Assessment Service (1) The Authority is to establish in association with its operations a unit, to be known as the Motor Accidents Medical Assessment Service. (2) The Service is to consist of medical assessors and such members of staff of the Authority as the Authority determines.
Section 3 of the Act provides: "Authority means "the State Insurance Regulatory Authority constituted under the State Insurance and Care Governance Act 2015".
Section 58(1) applies to disagreements between a claimant and an insurer and is in the following terms: 58 Application (1) This Part applies to a disagreement between a claimant and an insurer about any of the following matters (referred to in this Part as medical assessment matters): (a) whether the treatment provided or to be provided to the injured person was or is reasonable and necessary in the circumstances, (b) whether any such treatment relates to the injury caused by the motor accident, (c) (Repealed) (d) whether the degree of permanent impairment of the injured person as a result of the injury caused by the motor accident is greater than 10%. (e) (Repealed)

[9]

The Guidelines

The SIRA issued the Motor Accident Permanent Impairment Guidelines (effective 1 June 2018), with respect to motor accidents occurring between 5 October 1999 and 30 November 2017 ("the Guidelines"). They were Motor Accident Medical Guidelines for the purposes of s 44(1) of the Act. Section 133 provides that the assessment of permanent impairment is to be made in accordance with those guidelines. Further, ss 44(1)(d) and 65(1) of the Act provide that guidelines may establish procedures for the review of assessments made under Pt 3.4 of the Act.
The Preamble to the Guidelines stated: General introduction to the Permanent Impairment Guidelines…Under the MAC Act, damages for non-economic loss can only be awarded where the permanent impairment is greater than 10% and is the result of an injury caused by a motor accident. The assessment of the degree of permanent impairment of an injured person is to be made in accordance with these Guidelines. These Guidelines are based on the American Medical Association's Guides to the Evaluation of Permanent Impairment, Fourth Edition (third printing, 1995) (AMA4 Guides). The AMA4 Guides are widely used as an authoritative source for the assessment of permanent impairment, however these Guidelines make significant changes to the AMA4 Guides to align them with Australian clinical practice and to better suit the purposes of the MAC Act. These Guidelines commence on 1 June 2018.
Under the heading "Permanent Impairment", there are four relevant headings: "Introduction", "Application of Guidelines", "Causation of Injury" and "Consistency". Those aspects of the Guidelines are in the following terms: Introduction 1.1 These Motor Accident Permanent Impairment Guidelines have been developed for the purpose of assessing the degree of permanent impairment arising from the injury caused by a motor accident, in accordance with Section 133(2)(a) of the Motor Accidents Compensation Act 1999 (NSW) (the Act). 1.2 These Guidelines are based on the American Medical Association's Guides to the Evaluation of Permanent Impairment, Fourth Edition (third printing, 1995) (AMA4 Guides). However, there are some very significant departures from that document in these Guidelines. A medical assessor undertaking impairment assessments for the purposes of the Act must read these Guidelines in conjunction with the AMA4 Guides. These Guidelines are definitive with regard to the matters they address. Where they are silent on an issue, the AMA4 Guides should be followed. In particular, chapters 1 and 2 of the AMA4 Guides should be read carefully in conjunction with clauses 1.1 to 1.46 of these Guidelines. Some of the examples in the AMA4 Guides are not valid for the assessment of impairment under the Act. It may be helpful for medical assessors to mark their working copy of the AMA4 Guides with the changes required by these Guidelines. Application of these Guidelines 1.3 These Guidelines apply under the Act to the assessment of the degree of permanent impairment that has resulted from an injury caused by a motor accident occurring between 5 October 1999 and 30 November 2017 (inclusive). 1.4 For accidents that occurred on or after 1 December 2017, 'Part 6 of the Motor Accident Guidelines: Permanent impairment' apply, as published by the State Insurance Regulatory Authority (the Authority). Causation of injury 1.5 An assessment of the degree of permanent impairment is a medical assessment matter under Section 58 (1)(d) of the Act. The assessment must determine the degree of permanent impairment of the injured person as a result of the injury caused by the motor accident. A determination as to whether the injured person's impairment is related to the accident in question is therefore implied in all such assessments. Medical assessors must be aware of the relevant provisions of the AMA4 Guides, as well as the common law principles that would be applied by a court (or claims assessor) in considering such issues. … Evaluation of impairment 1.17 The medical assessor must evaluate the available evidence and be satisfied that any impairment: 1.17.1 is an impairment arising from an injury caused by the accident, and 1.17.2 is an impairment as defined in clause 1.9 above. 1.18 An assessment of the degree of permanent impairment involves three stages: 1.18.1 a review and evaluation of all the available evidence including: • medical evidence (doctors', hospitals' and other health practitioners' notes, records and reports) • medico-legal reports • diagnostic findings • other relevant evidence 1.18.2 an interview and a clinical examination, wherever possible, to obtain the information specified in these Guidelines and the AMA4 Guides necessary to determine the percentage impairment, and 1.18.3 the preparation of a certificate using the methods specified in these Guidelines that determines the percentage of permanent impairment, including the calculations and reasoning on which the determination is based. The applicable parts of these Guidelines and the AMA4 Guides should be referenced. … Permanent impairment 1.20 Generally, when an impairment is considered permanent, the injuries will also be stabilised. However, there could be cases where an impairment is considered permanent because it is unlikely to change in future months regardless of treatment, but the injuries are not stabilised because future treatment is intended and the extent of this is not predictable. For example, for an injured person who suffers an amputation or spinal injury, the impairment is permanent and may be able to be assessed soon after the injury as it is not expected to change regardless of treatment. However, the injuries may not be stabilised for some time as the extent of future treatment and rehabilitation is not known. 1.21 The evaluation should only consider the impairment as it is at the time of the assessment. 1.22 The evaluation must not include any allowance for a predicted deterioration, such as osteoarthritis in a joint many years after an intra-articular fracture, as it is impossible to be precise about any such later alteration. However, it may be appropriate to comment on this possibility in the impairment evaluation report. Non-assessable injuries 1.23 Certain injuries may not result in an assessable impairment covered by these Guidelines and the AMA4 Guides. For example, uncomplicated healed sternal and rib fractures do not result in any assessable impairment. Impairments not covered by these Guidelines and the AMA4 Guides 1.24 A condition may present that is not covered in these Guidelines or the AMA4 Guides. If objective clinical findings of such a condition are present, indicating the presence of an impairment, then assessment by analogy to a similar condition is appropriate. The medical assessor must include the rationale for the methodology chosen in the impairment evaluation report. Adjustment for the effects of treatment or lack of treatment 1.25 The results of past treatment (for example, operations) must be considered since the injured person is being evaluated as they present at the time of assessment. 1.26 Where the effective long-term treatment of an injury results in apparent, substantial or total elimination of a physical permanent impairment, but the injured person is likely to revert to the fully impaired state if treatment is withdrawn, the medical assessor may increase the percentage of WPI by 1%, 2% or 3% WPI. This percentage must be combined with any other impairment percentage using the 'Combined values' chart (pages 322-324, AMA4 Guides). An example might be long-term drug treatment for epilepsy. This clause does not apply to the use of analgesics or anti-inflammatory drugs for pain relief. 1.27 For adjustment for the effects of treatment on a permanent psychiatric impairment, refer to clauses 1.222 to 1.224 under 'Mental and behavioural disorders' within these Guidelines. 1.28 If an injured person has declined a particular treatment or therapy that the medical assessor believes would be beneficial, this should not change the impairment estimate. However, a comment on the matter should be included in the impairment evaluation report. 1.29 Equally, if the medical assessor believes substance abuse is a factor influencing the clinical state of the injured person, a comment on the matter should be included in the impairment evaluation report. Adjustment for the effects of prostheses or assistive devices 1.30 Whenever possible, the impairment assessment should be conducted without assistive devices, except where these cannot be removed. The visual system must be assessed in accordance with clauses 1.242 to 1.243 in these Guidelines. Pre-existing impairment 1.31 The evaluation of the permanent impairment may be complicated by the presence of an impairment in the same region that existed before the relevant motor accident. If there is objective evidence of a pre-existing symptomatic permanent impairment in the same region at the time of the accident, then its value must be calculated and subtracted from the current WPI value. If there is no objective evidence of the pre-existing symptomatic permanent impairment, then its possible presence should be ignored. 1.32 The capacity of a medical assessor to determine a change in physical impairment will depend upon the reliability of clinical information on the pre-existing condition. To quote the AMA4 Guides (page 10): 'For example, in apportioning a spine impairment, first the current spine impairment would be estimated, and then impairment from any pre-existing spine problem would be estimated. The estimate for the pre-existing impairment would be subtracted from that for the present impairment to account for the effects of the former. Using this approach to apportionment would require accurate information and data on both impairments.' Refer to clause 1.218 for the approach to a pre-existing psychiatric impairment. 1.33 Pre-existing impairments should not be assessed if they are unrelated or not relevant to the impairment arising from the motor accident. Subsequent injuries 1.34 The evaluation of permanent impairment may be complicated by the presence of an impairment in the same region that has occurred subsequent to the relevant motor accident. If there is objective evidence of a subsequent and unrelated injury or condition resulting in permanent impairment in the same region, its value should be calculated. The permanent impairment resulting from the relevant motor accident must be calculated. If there is no objective evidence of the subsequent impairment, its possible presence should be ignored. Psychiatric impairment 1.35 Psychiatric impairment is assessed in accordance with 'Mental and behavioural disorders' within these Guidelines. Psychiatric and physical impairments 1.36 Impairment resulting from a physical injury must be assessed separately from the impairment resulting from a psychiatric or psychological injury. … Consistency 1.40 Tests of consistency, such as using a goniometer to measure range of motion, are good but imperfect indicators of the injured person's efforts. The medical assessor must use the entire gamut of clinical skill and judgement in assessing whether or not the results of measurements or tests are plausible and relate to the impairment being evaluated. If, in spite of an observation or test result, the medical evidence appears not to verify that an impairment of a certain magnitude exists, the medical assessor should modify the impairment estimate accordingly, describe the modification and outline the reasons in the impairment evaluation report.1.41 Where there are inconsistencies between the medical assessor's clinical findings and information obtained through medical records and/or observations of non-clinical activities, the inconsistencies must be brought to the injured person's attention; for example, inconsistency demonstrated between range of shoulder motion when undressing and range of active shoulder movement during the physical examination. The injured person must have an opportunity to confirm the history and/or respond to the inconsistent observations to ensure accuracy and procedural fairness. [Emphasis added.]

[10]

Table 11: Psychiatric impairment rating scale (PIRS) Self-care and personal hygiene Class 1 No deficit, or minor deficit attributable to normal variation in the general population Class 2 Mild impairment. Able to live independently and look after self adequately, although may look unkempt occasionally. Sometimes misses a meal or relies on takeaway food. Class 3 Moderate impairment. Cannot live independently without regular support. Needs prompting to shower daily and wear clean clothes. Cannot prepare own meals, frequently misses meals. Family member or community nurse visits (or should visit) 2-3 times per week to ensure minimum level of hygiene and nutrition. Class 4 Severe impairment. Needs supervised residential care. If unsupervised, may accidentally or purposefully hurt self. Class 5 Totally impaired. Needs assistance with basic functions, such as feeding and toileting.

[11]

Table 15, which corresponds to cl 1.219.5, concerns "Concentration, persistence and pace" and is extracted below:

[12]

Table 15: Psychiatric impairment rating scale (PIRS) Concentration, persistence and pace Class 1 No deficit, or minor deficit attributable to normal variation in the general population. Able to operate at previous educational level; for example, pass a TAFE or university course within normal timeframe. Class 2 Mild impairment. Can undertake a basic retraining course, or a standard course at a slower pace. Can focus on intellectually demanding tasks for up to 30 minutes; for example, then feels fatigued or develops headache. Class 3 Moderate impairment. Unable to read more than newspaper articles. Finds it difficult to follow complex instructions; for example, operating manuals, building plans, make significant repairs to motor vehicle, type detailed documents, follow a pattern for making clothes, tapestry or knitting. Class 4 Severe impairment. Can only read a few lines before losing concentration. Difficulties following simple instructions. Concentration deficits obvious even during brief conversation. Unable to live alone, or needs regular assistance from relatives or community services. Class 5 Totally impaired. Needs constant supervision and assistance within an institutional setting.

[13]

As to the calculation of psychiatric impairment, the Guidelines provide as follows: 1.225 Rating psychiatric impairment using the PIRS is a three-step procedure: 1.225.1 Determine the median class score. 1.225.2 Calculate the aggregate score.1.225.3 Convert the median class and aggregate score to % WPI. 1.226 Determining the median class score: Each area of function described in the PIRS is given an impairment rating ranging from class 1 to class 5. The six class scores are arranged in ascending order using the standard form (Figure 2). The median class is then calculated by averaging the two middle scores. For example: Example Impairment rating Median class A 1, 2, 3, 3, 4, 5 = 3 B 1, 2, 2, 3, 3, 4 = 2.5 = 3 C 1, 2, 3, 5, 5, 5 = 4

[14]

Table 17 is "Conversion table" and is extracted below:

[15]

Table 17: Conversion table

The following "Explanatory note" accompanied the above table: Conversion table - Explanatory notes 1. Distribution of aggregate scores: • The lowest aggregate score that can be produced is 1 + 1 + 1 + 1 + 1 + 1 = 6. • The highest score that can be produced is 5 + 5 + 5 + 5 + 5 + 5 = 30. • Table 17 therefore has aggregate scores ranging from 6 to 30. • Each median class score has a range of possible aggregate scores and hence a range of possible impairment scores (for example, class 3 = 11% - 30% WPI). • Table 17 distributes the impairment percentages across the possible range of aggregate scores. 2. Same aggregate score in different classes: • Table 17 shows that the same aggregate score leads to different impairment percentages for different median classes. For example, an aggregate score of 18 is equivalent to an impairment rating of: - 10% in class 2 - 22% in class 3, and- 34% in class 4 • This is because the injured person whose impairment is in median class 2 is likely to have a lower score across most areas of function. The injured person may be significantly impaired in one aspect of their life, such as travel, yet have low impairment in social function, self-care or concentration. In contrast, someone whose impairment reaches median class 4 will experience significant impairment across most aspects of their life.

[16]

The Former Guidelines

The plaintiff also placed reliance on the former guidelines dated 10 October 2007. Those guidelines were entitled "Permanent Impairment Guidelines" and were issued by the Motor Accidents Authority ("MAA") ("the former Guidelines").
The former Guidelines were introduced by an "Explanatory Note" in which it was stated: Explanatory Note These Motor Accidents Authority (MAA) Guidelines are issued pursuant to section 44(1)(c) of the Motor Accidents Compensation Act 1999 ("the Act") and apply in respect of a motor accident occurring on or after 5 October 1999. These Guidelines replace the MAA "Guidelines for the assessment of the degree of permanent impairment of an injured person" published in Government Gazette No 92 of 22 July 2005 at page 3858. The Act requires that damages for non-economic loss only be awarded where the permanent impairment of the injured person caused by the motor accident is greater than 10%. Further, the assessment of the degree of permanent impairment is to be made in accordance with the MAA Medical Guidelines issued for that purpose. These Guidelines have been developed to fulfil that role. They use the American Medical Association Guides to the Evaluation of Permanent Impairment, Fourth Edition, Third Printing (1995) (AMA 4 Guides) as their basis. The AMA 4 Guides are widely used as an authoritative source for the assessment of permanent impairment. However, these MAA Guidelines make significant changes to the AMA 4 Guides to align them with Australian clinical practice and to better suit them to the purposes of the Act…
There was an "Introduction" to the former Guidelines which was a counterpart to the Guidelines (see cll 1.1-1.2). Under that heading to the former Guidelines, the following appeared: Introduction 1.1 These MAA Guidelines have been developed for the purpose of assessing the degree of permanent impairment arising from the injury caused by a motor accident, in accordance with section 133(2)(a) of the New South Wales Motor Accidents Compensation Act 1999. 1.2 The MAA Guidelines are based on the American Medical Association publication "Guides to the Evaluation of Permanent Impairment", 4th Edition, 3rd Printing (1995) (AMA 4 Guides). However, in these Guidelines there are some very significant departures from that document Persons undertaking impairment assessments for the purposes of the NSW Motor Accidents Compensation Act 1999 must read these MAA Guidelines in conjunction with the AMA 4 Guides. These MAA Guidelines are definitive with regard to the matters they address. Where they are silent on an issue, the AMA 4 Guides should be followed. In particular, Chapters 1 and 2 of the AMA 4 Guides should be read carefully in conjunction with this Chapter of the MAA Guidelines. Some of the examples in AMA 4 are not valid for the assessment of impairment under the Motor Accidents Compensation Act 1999. It may be helpful for assessors to mark their working copy of the AMA 4 Guides with the changes required by these MAA Guidelines. 1.3 The convention used in these MAA Guidelines is that if the text is in bold, it is a directive as to how the assessment should be performed.

[17]

MAS GUIDELINES

Pursuant to s 44(1)(d) of the Act, the MAA published Medical Assessment Guidelines, with respect to the procedures for the referral of disputes for assessment or review of assessments, and the procedure for assessments and Review Panel assessments under Pt 3.4 of the Act. Those guidelines shall hereinafter be referred to as "the MAS Guidelines".
The MAS Guidelines commence by setting out the objects at cll 1.13 and 1.14 as follows: 1.13 The objects of MAS set out in clause 1.14 should be used as an aid to the interpretation of these Guidelines. 1.14 The objects of MAS in dealing with medical disputes referred are: 1.14.1 to provide a timely, fair and cost effective system for the assessment of medical disputes under the Motor Accidents Compensation Act 1999 that is accessible, transparent, independent and professional; 1.14.2 to assess medical disputes fairly and according to the substantial merits of the application with as little formality and technicality as is practicable and minimising the cost to the parties; 1.14.3 to ensure the quality and consistency of MAS decision making; 1.14.4 to make appropriate use of the knowledge and experience of MAS Assessors; and 1.14.5 to establish and maintain effective communication and liaison with stakeholders concerning the role of MAS.
Permanent impairment dispute are referred to in cl 13.5 as follows: No combined certificate required 13.5 An Assessor to whom a permanent impairment dispute is referred requiring either a psychiatric or psychological injury assessment, or requiring a physical injuries assessment by a single Assessor, that does not require the issuing of a combined certificate, is to send to MAS a certificate certifying: 13.5.1 the list of the injuries referred and whether they were each found to have been caused by the accident; 13.5.2 the degree of permanent impairment of the injured person as a result of each of those injuries referred that were found to be caused; and 13.5.3 whether the degree of permanent impairment of the injured person as a result of those injuries referred that were found to be caused, is greater than 10%.
The arrangements for Review Panel assessment appear in cl 16.21. Clause 16.24 provides: 16.21 The Review Panel is to hold an initial meeting or teleconference within 30 days of the date the panel was convened and, at that meeting or in subsequent meetings, is to: 16.21.1 consider afresh all aspects of the assessment under review; 16.21.2 determine whether re-examination of the claimant is required, and if so set a timetable for that to occur; 16.21.3 determine whether additional information is required in order to make a decision; 16.21.4 determine whether each of the certificates issued by the original Assessor is to be confirmed or revoked; 16.21.5 if revoked, determine what new certificates are to be issued; 16.21.6 where the original assessment certificate was issued under clause 13.7 and included in a combined certificate under clause 13.9, determine whether the panel is to issue a new combined certificate, combining the result of the review with the results of the other assessments included in that combined certificate; 16.21.7 determine which member of the panel will sign any certificates on behalf of the panel; 16.21.8 determine whether a further meeting of the panel is required; and 16.21.9 advise the Proper Officer of any determinations under this clause

[18]

THE ASSESSMENT BY ASSESSOR JAGER

Assessor Jager's assessment of the first defendant's current functions was as follows: Current Functioning He is independent in his self-care and personal hygiene. He shaves, showers and wears fresh clothes and unclothes without prompting. Previously he and his wife went to parks, the Mingarra Club and occasionally to an Argentinean barbeque. He now occasionally goes to the Mingarra Club but his Wife has to push him to go. They recently attended the Club to see a Beatles band, which he liked. He is anxious in the car and avoids driving it when he can and almost always takes his Wife with him. He hasn't lost any friendships but he lacks the motivation to go out socially. He has remained very close to his wife and children and only sometimes argues with his wife. He used to love movies but if there is Violence he stops watching. On the internet he can do a search, eg to find plants for his garden successfully. He recently learnt how to diagnose a problem with a lemon tree and was able to transplant it. His estimate of his concentration is more pessimistic than the real deficit. He makes empanadas (Argentinean pasties) in his kitchen at home but is not efficient as he was pervious [sic] to the accident. He said he has to ''fight" to get things done. [Emphasis added.]
Assessor Jager found no inconsistencies in the first defendant.
Assessor Jager's determination as to permanent impairment was as follows:

[19]

Degree of Permanent Impairment Psychiatric diagnoses 1. PTSD Psychiatric treatment description Psychological therapy, antidepressant medication

[20]

Category Class Reason for Decision

Self Care and Personal Hygiene 1 He is independent in his self-care and personal hygiene. He shaves, showers and wear fresh clothes and unclothes without prompting.
Social and Recreational Activities 3 Previously he and his wife went to parks, the Mingarra Club and occasionally to an Argentinian barbeque. He now occasionally goes to the Mingarra Club but his wife has to push him to go. They recently attended the Club to see a Beatles band, which he liked.
Travel 2 He is anxious in the car and avoids driving it when he can and almost always takes his wife with him.
Social Functioning 1 He hasn't lost any friendships but he lacks the motivation to go out socially. He has remained very close to his wife and children and only sometimes argues with his wife. The nature of the marital relationship with the occasional argument is within the normal range of the general population.
Concentration, Persistence and Pace 2 He used to love movies but if there is violence he stops watching. On the internet he can do a search, eg to find plants for his garden successfully. He recently learnt how to diagnose a problem with a lemon tree and was able to transplant it. His estimate of his concentration is more pessimistic than the real deficit. He was alert throughout the interview with me with no lapses.
Adaptation 2 He makes empanadas (Argentinean pasties) in his kitchen at home but is not efficient as he was pervious [sic] to the accident. He said he has to "fight" to get things done. List classes in ascending order: 1 1 2 2 2 3 Median Class Value: 2 Aggregate Score: 10 % Whole Person Impairment: 5%

[21]

THE ASSESSMENT BY THE THIRD DEFENDANT

The third defendant examined the first defendant on 12 November 2018.
As to the assessment, the third defendant reviewed the following history given by the first defendant to Assessor Jager: … On the day of assessment he said that he had enduring neck pain. He was anxious all the time as well as being depressed and angry most of the time. He enjoyed listening to Paul McCartney or the Beatles. He had difficulty sleeping and woke to nightmares about white faces like a mask. He had daily flashbacks when he heard the noise of the motor accident like an explosion. This upset him for minutes at a time. He used cognitive techniques to stop his thoughts. He avoided driving when he could and almost always drove with his wife with him. He had to force himself to do things. Although his appetite was reduced his weight was the same. He said he could only focus for a couple of minutes but when driving felt very alert. A week before the assessment he had passive suicidal thoughts. His mental status examination showed a lean casually dressed man who was neatly presented. He appeared sad. He wept but was reactive and able to smile. He attended well to the interview. He was independent in self-care and personal hygiene. He occasionally went to the Mingarra Club when pushed to go by his wife. He avoided driving the car if he could because he was anxious. He lacked motivation to go out socially. He had not lost friendships and sometimes argued with his wife. He stopped watching violent movies. He could search on the Internet. His estimate of his concentration was more pessimistic than his real deficit. He was not as efficient at making Argentinian pastries and had to "fight" to get things done around the house. After reviewing the relevant documents Assessor Jager diagnosed Posttraumatic Stress Disorder and assessed a 5% whole person impairment. [Emphasis added.]
The first defendant's description of his current symptoms as set out in the third defendant's assessment was as follows: I feel worse. When the accident happened I could say I am alive. This is like everything has crumbled and I am going down the hill. I feel I sleep 2 hours. Sometimes I relax and go to bed at 9:30. I lie in bed and get up after 2 hours and I am up and down 3-4 times overnight. I tell my wife what is going on. She tells me to relax. I almost every day have nightmares but I don't remember. Last night I got up 7 times. I got up at 10:30. I hope there is some way to get out. I ask Cameron to show me anything to go out. He says I will never be the same and he says not to lose hope. I have lost hope. My wife says I have to drive but I don't want to be a danger for anyone. I was promised the arm operation would help me play tennis.

[22]

Degree of Permanent Impairment Psychiatric diagnoses: Posttraumatic Stress Disorder Psychiatric treatment described: Psychological counselling

[23]

AREA OF FUNCTION Class Reason for Decision

Self-Care and Personal Hygiene 2 Mild impairment. He is prompted to shower and shave and no longer helps prepare meals. He skips lunch. He is encouraged by his wife and therefore is no longer self-reliant.
Social and Recreational Activities 3 Moderate impairment. He has withdrawn from and avoided social and recreational activities but will go out if persuaded by his wife. He is able to leave his home and tolerate visits from friends while preferring that they not visit.
Travel 2 Mild impairment. Travel was mildly impaired because he avoided driving when he could and drove only in his neighbourhood. He described insecurity when travelling.
Social Functioning 2 Mild impairment. He had lost friends, avoided friends and no longer visited his sons. The relationship with his wife remained positive.
Concentration, Persistence and Pace 3 Moderate impairment. He had withdrawn from organising the family finances because of an inability to focus. He reported he could not concentrate to read or watch a complete action movie. He had lost interest in completing domestic tasks. His speech was discursive as he organised his answers. There were no specific concentration deficits obvious during the assessment interview.
Adaptation 3 Moderate impairment. He was no longer an equal partner with his wife in his adaptation to retirement. He had withdrawn from domestic duties because of his depressed mood and related loss of interest. Clinically this is the equivalent of a moderate paid work impairment. Aggregate Score 15

[24]

List classes in ascending order: 2 2 2 3 3 3 Median Class Value: 3 Aggregate Score: 15 Percentage Whole Person Impairment: 15%

[25]

The plaintiff contrasted the score of "3" with the score given by Assessor Jager's of "2".

[26]

THE REPORT OF DR MATTHEW JONES

Dr Jones was engaged by the insurers. He gave his report about a year before the assessment by the third defendant.
Under the heading, "Recent Functioning", Dr Jones stated: Mr Saraceni said he normally wakes in the night but had six hours sleep the night before the assessment and that was approximately normal for him. He said he tends to startle at night but is not having so many nightmares anymore. He said his appetite is always the same and he eats for energy not for flavour and he is not very hungry. He said he drinks a lot of water. He reported his weight is stable, at around 83kg or 84kg and his height is about 179cm. I asked Mr Saraceni about his energy levels and he said he does things then he feels tired and there is a come-down. He said he tells himself to keep going. I asked him about his memory and concentration and he said he gets lost at times and also he tends to ruminate and he is very distractible.
Dr Jones answered a series of questions posed by the plaintiff. As to the relationship between the first defendant's injuries and the accident, Dr Jones stated: In my opinion, Mr Saraceni's psychological injuries and disabilities are a direct result of the motor vehicle accident.
Under the heading "Social Functioning", Dr Jones gave the following answer to the stated question: Does the Injured person report any difficulties with concentration which would impact on a return to pre-injury roles? Mr Saraceni did report that he was easily distractible and ruminated and this is probably a mild impairment compared to his pre-injury capabilities in this area.
As to permanent impairment, Dr Jones set out his determination as to permanent impairment in tabular form. Whilst the plaintiff's written submissions relied upon all of the categories contained in the table extracted in Dr Jones' report vis-à-vis permanent impairment, in oral submissions, contentions were ultimately confined to "Concentration, persistence and pace". As to "Concentration, persistence and pace", Dr Jones determination is extracted below: PIRS category Class Reason for decision Concentration, persistence and pace 2 Mild impairment. Mr Saraceni concentrated well for the assessment, communicating well in his second language. He indicated he still has motivation to do things and attempts to commence and complete tasks, however sometimes gets fatigued. He said he needs some direction at home but finds concentrating on task nicely distracting from his rumination. He said he is still able to watch television, particularly sport. Although there is some impairment in this area, it is consistent, in my opinion, with a mild level of impairment.

[27]

DR PETER SNOWDON

Dr Snowdon assessed the first defendant at the request of his solicitor. Dr Snowdon's first report was dated 13 July 2017.
Under the heading, "History of Presenting Complaints", Dr Snowdon observed: His difficulty with concentration immediately became apparent in him attempting to provide a date when he had retired, this immediately becoming an issue when he had first said that he had retired at the age of 65, after selling a small bakery, which he and his wife owned, in Blacktown, when they had moved, he felt fairly certain, to the Central Coast, seven years ago. Mr Saraceni then wondered whether he had sold the bakery eight years ago, but then became obviously frustrated in attempting to recall what was the retirement age.
Under the heading, "Review of Psychological Symptoms", Dr Snowdon stated: As mentioned, his description of his response immediately following the accident would appear to clearly indicate that he had developed anxiety-related dissociation. He had also reported continued impaired concentration, and a constant sense of anxiety, alertness and hypervigilance. He had said, reflecting on his prior level of functioning, "I can fix things ... before I can fix things ... inside of me now, I have lost control and l ask all the time why I am this way".
Under the heading, "Mental State Examination", Dr Snowdon stated: As described in the body of this report, there was evidence for poor concentration, while there was also, I felt, a general degree of general slowing, indicative of an additional contribution from depression.
The plaintiff pointed to different classes assessed by Dr Snowdon with respect to each category on the impairment scale, noting that Dr Snowdon opined, as earlier noted, an aggregate whole personal impairment of 22%.
As for the category "Concentration, position and pace", Dr Snowdon opined the class of "3". His reason for that finding was as follows: Mr Saraceni said that he does not read books, and had never much in any case. He said that he reads the newspaper and, on specific questioning, could, he feels, follow complex instructions, such as an operating manual or building plans. Frankly, however, from his performance in this examination, I very much doubt this, and I feel he scores Class 3 for this area.

[28]

The Plaintiff's Submissions

In summary, the plaintiff made the following submissions in support of this ground: 1. The review panel failed to comply with cl 1.41 of the Guidelines and failed to afford procedural fairness "generally", in that the third defendant failed to bring its findings of inconsistencies to the first defendant's attention and to give it a chance to respond. 2. It has been held by the Court of Appeal that cl 1.41 requires that procedural fairness be afforded to both claimants and insurers (and further, exists to ensure accuracy as well). 3. The Guidelines require that the evaluation of impairment should only consider the impairment at the time of the assessment (cl 1.20). However, this co-exists with the requirement under cl 1.41. In any event, cl 1.20 cannot abrogate the duty to provide procedural fairness. 4. In conducting its assessment, the third defendant failed to consider and/or apply cl 1.41. 5. As earlier mentioned, submissions directed to inconsistencies across a number of categories such as self-care and personal hygiene, social functions, concentration, persistence and pace and adaption, the plaintiff ultimately focused attention upon the category addressed in Assessor Jager's and the third defendant's assessment of "Concentration, Persistence and Pace". 6. The third defendant found a class 3 impairment for this category and found there was consistency between the history of current psychiatric symptoms, presentation at assessment interview and findings on examination. 7. The finding as to "consistency" did not meet the third defendant objectives under cl 1.41 or the requirements of procedural fairness. 8. The history given to the third defendant by the first defendant and the third defendant's findings, were inconsistent with the information obtained through the medical records, particularly the report of Assessor Jager, which has been obtained 8 months earlier with respect to concentration, persistence and pace. 9. There were further inconsistencies between the information obtained by the third defendant and observed, and the information obtained through medical records. The third defendant had before it the reports of Drs Snowdon and Jones where there were, again, inconsistencies with the findings of the third defendant. The third defendant did not put those inconsistencies to the first defendant. 10. There were inconsistencies between the third defendant's findings and the information obtained through medical records which were not put to the first defendant. 11. In failing to apply cl 1.41, the third defendant failed to afford procedural fairness to the parties.

[29]

The First Defendant's Submissions

There were four primary contentions advanced by the first defendant in reply, as follows: 1. There was no evidence of the claimed failures to alert the first defendant to inconsistency. 2. There were no relevant inconsistencies. 3. The Guidelines were not directive and a failure to comply with them did not result in the invalidity of the third defendant's decision. 4. In the alternative, the third defendant did not fail to afford procedural fairness by not bringing its findings of inconsistency to the first defendant's attention or giving him a chance to respond.
As to the first contention, the first defendant submitted that there was no evidence to support the first ground because there was no evidence of what was, and what was not, brought to the first defendant's attention during the third defendant's examination of him. There was no oral transcript of the examination or any evidence from anyone who was present.
As to the second contention, the first defendant made, in summary, the following submissions: 1. Clause 1.41 is not directed to inconsistencies concerning the first defendant's ability to concentrate between his presentation and his self-reporting. 2. It is doubtful that a divergence between a claimant's assessment of his or her ability to concentrate, or a claimant's account of difficulties concentrating in the past, and a third defendant's assessment of that person's ability to concentrate in an interview, is an inconsistency at all. First, the two relate to different time periods. Secondly, the expert body is expressing an opinion about a medical matter (whether the claimant suffers from concentration deficit from a psychiatric point of view) whereas the claimant is reporting his or her symptoms. 3. Further, the first defendant's estimate of his own ability to concentrate is not "information obtained through medical records and/or observations of non-clinical activities" which could give rise to an inconsistency with the third defendant's "clinical findings" within clause 1.41. 4. It is information given by the first defendant to the third defendant in an interview. 5. The third defendant's comment that the first defendant's estimate of his own concentration was more pessimistic than his real deficit is consistent with the medical records, a matter which is the subject of cl 1.41. Assessor Jager made the same comment, using the same language. 6. There are no inconsistencies between the third defendant's findings and the history given to the third defendant and the medical records, such as Assessor Jager's report, which were not put to the first defendant. Assessor Jager's report relates to the first defendant's condition as at 14 March 2018 (the assessment date) and the third defendant's report relates to his condition 8 months later. The third defendant's findings reflect what the first defendant told the third defendant. 7. The plaintiff appears to construe cl 1.41 as requiring every factual difference between an assessors finding and a medical record to be put to a claimant for comment, irrespective of its significance. That cannot be correct. It is not a sensible or workable construction, nor one consistent with the status of the Guidelines.

[30]

Consideration: Ground 1

Upon the successful application to refer the medical assessment by Assessor Jager to the third defendant as a review panel of assessors for review pursuant to s 62(1) and (3), the third defendant was required to give a Certificate as to the matters referred for assessment and set out reasons for any finding by the assessors as to a matter certified in the certificate (see s 61(1) and (9) of the Act).
Pursuant to s 44(1)(c), the Guidelines may address the assessment of the degree of permanent impairment or an injury period as a result of an injury caused by a motor accident.
Section 65(1) provides that medical assessments made by the third defendant are "subject to" the Guidelines. Section 133(2)(a) provides that the assessment of permanent impairment is to be made "in accordance with" the Guidelines.
The focus of the plaintiff's attention in this matter was cl 1.41 of the Guidelines (the successor to cl 1.43 of the former Guidelines).
I have earlier extracted passages from the judgment of Basten JA in Boyce. His Honour was dealing with the former Guidelines and, in particular, the distinction in those Guidelines between emboldened and unbolded text. Nonetheless, even with the unbolded text, his Honour found (at [18]) that it would be inconsistent with the combination of s 133(2) and the mandatory terms included in some unbolded texts are expressed to "suggest that the assessor can ignore what is, in effect, the bulk of the Guidelines [being a reference to unbolded type]". His Honour illustrated why the former unbolded cl 1.24 was "mandatory" in its terms (see Project Blue Sky at [38] and [93], as to the concept of a mandatory term,). That conclusion may be reached with even greater force in the case of cl 1.41 having regard to the use of the word "must". Further, having regard to the submissions of the plaintiff that I have earlier recorded and accept with respect to the former Guidelines (see [49]-[51]).
The first defendant placed reliance upon Ali (at [75]-[93]) to contend that the Guidelines were not delegated legislation. This is certainly the effect of the judgment of Leeming JA in Ali, with respect to the former Guidelines. However, the judgment in Ali does not avail the first defendant, if it be advanced to support a proposition that the Guidelines were "mere guidelines" which did not require adherence ("slavish" or otherwise), even where the clause of the Guidelines is significant in its content, as is cl 1.41.

[31]

I turn to two further submissions of the first defendant as to inconsistencies, both of which I reject.
First, the first defendant contended that because there is no evidence of the reasons of what was brought to the claimant's attention during the examination, the plaintiff's ground of review should be dismissed. I do not accept that submission for two reasons: 1. The review panel was required to give reasons for its decision, and the High Court has made it plain that the reasons must be sufficient to enable a court to see whether or not the decision involves an error of law: Wingfoot Australia Partners Pty Ltd v Kocak (2013) 252 CLR 480; [2013] HCA 43 ("Wingfoot") at [55] (I will refer to this issue under Ground 2). Given that cl 1.41 is designed to ensure both procedural fairness and accuracy of assessment (these concepts will be discussed further below), it is crucial to the decision-making for the clause to be applied, and equally for reasons to be provided regarding its application. 2. The review panel does address the issue of consistency, stating: There was consistency between the history of current psychiatric symptoms, presentation at the assessment interview and findings on examination." The only reasonable inference that can be drawn from this is that the review panel did not put any inconsistencies to the claimant.
Secondly, the first defendant submitted that the inconsistencies relied upon by the plaintiff were not contemplated by cl 1.41. The classes of inconsistency relied upon by the plaintiff concern, in the first instance, an inconsistency between self-reporting by the first defendant and direct observations by the third defendant and the third defendant's own assessments (as between "Moderate Impairment" based on self-reports and "No Impairment" in the sense of no specified concentration defects) and, in the second instance, between the third defendant's assessment and medical records.
The first defendant contended that the first class of inconsistency was not contemplated by cl 1.41. It would appear that this submission directed attention to the opening words of cl 1.41 which seem to draw attention to a comparison between a medical assessor's clinical findings and, inter alia, information obtained through medical records.
However, it is difficult to envisage how such a comparison would not include inconsistencies within clinical findings per se, at least for the purposes of identifying inconsistencies including comparisons made between clinical findings and medical records. This seems to be contemplated in the example given in cl 1.41 as well as the inconsistencies found as relevant for the purposes of the counterpart to cl 1.41 in the former Guidelines (cl 1.43) by Simpson JA in Dominice (at [61]), namely, inconsistencies noted by Dr Ashworth in what the plaintiff described to him.

[32]

Plaintiff's Submissions

In summary, the plaintiff made the following submissions in support of this ground: 1. In its assessment decision, the third defendant was required, by general law, to provide adequate lawful reasons for its determination and, pursuant to s 61(9) of the Act and cll 13.2 and 16.24 of the Guidelines, to set out lawful reasons for its determination. 2. The failure of the third defendant to state its actual path of reasoning and to do so in a way that permitted identification by the court (and the parties) of any legal error is in and of itself a vitiating error of law on the face of the record which is amenable to an order in the nature of certiorari.

[33]

First Defendant's Submissions

In summary, the first defendant's submissions as to this ground were as follows: 1. The third defendant's reasons were sufficient to expose its path of reasoning to its conclusion that first defendant's degree of whole person impairment was greater than 10%. 2. The plaintiff criticised the third defendant's reasoning for failing to explain why: 1. it considered certain matters to be consistent; 2. it concluded that the first defendant had a significant impairment of concentration; and 3. it concluded that the first defendant's injuries had stabilised. 1. The critique by the plaintiff of the third defendant's reasoning was focused upon the "merits" of the third defendant's decision, namely, the consistency of the reasoning, conclusions as to significant impairment and concentration and that injuries had stabilised. Legality must be the only issue in these proceedings and not the merits of the particular decision of the third defendant. 2. The third defendant's reasons must of course be read as a whole, fairly and with a "beneficial construction": Minister for Immigration and Ethnic Affairs v Liang (1996) 185 CLR 259; [1996] HCA 6 ("Liang") at 271.9 to 272.2. The reasons are not to be construed minutely and finely with an eye keenly attuned to the perception of error: Liang at 272.2. 3. The third defendant here was not required to explain every comment made in the reasons, including why it considered that "there was consistency between the history of current psychiatric symptoms, presentation at the assessment interview and findings on examination". Its "path of reasoning" to its conclusion that the first defendant's whole person impairment was greater than 10% was adequately exposed by the reasons as a whole. The third defendant's comment as to consistency is explained by its earlier remarks about the history of the first defendant's psychiatric symptoms, his presentation at the assessment interview and the third defendant's findings on examination. The three are, broadly, consistent. 4. The third defendant did not engage in "internally inconsistent reasoning" when considering the first defendant's ability to concentrate and did not conclude that the first defendant had a "significant impairment of concentration". 5. The third defendant concluded that the first defendant has a "moderate impairment" of "concentration, persistence and pace". This conclusion is based not only upon the panel's observation of the first defendant in an interview, but also upon the medical history and the first defendant's report of his own symptoms. It relied upon his "withdrawal from organising the family finances, inability to concentrate to read or watch a complete action movie and a loss of interest in completing domestic tasks". It also relied on its observation that the first defendant's "speech was discursive as he organised his answers" in the interview. This might go to "pace" (an aspect of the category which the plaintiff has ignored). 6. It was submitted that the plaintiff had contended that the third defendant failed to explain why it concluded that the first defendant's injuries had stabilised "given the time since the accident and the continued stability of symptoms" when (the plaintiff says) in fact the third defendant's apparent conclusion was that the claimant had deteriorated quite significantly since the assessment with Assessor Jager less than 8 months earlier. 7. However, the third defendant did not conclude that the first defendant had "deteriorated quite significantly" since Assessor Jager's assessment as the plaintiff suggests. The panel's conclusions about the first defendant's condition (in December 2018) were more positive than those of Dr Snowdon (on 13 July 2017), which were reached 8 months before Assessor Jager's assessment (on 14 March 2018), and only slightly less positive than those of Assessor Jager. 8. The plaintiff also complains that the review panel failed to explain why it concluded that the first defendant's injuries had stabilised "given the time since the accident and the continued stability of symptoms" when (the plaintiff says) in fact the review panel's apparent conclusion was that the claimant had deteriorated quite significantly since the assessment with Assessor Jager less than 8 months earlier. 9. The third defendant did not conclude that the first defendant had "deteriorated quite significantly" since Assessor Jager's assessment as the plaintiff suggested. The third defendant's conclusions about the first defendant's condition (in December 2018) were more positive than those of Dr Snowdon (on 13 July 2017), which were reached eight months before the Jager assessment (on 14 March 2018), and only slightly less positive than those of Assessor Jager. For "concentration, persistence and pace" and "adaptation", the third defendant found that he had a "moderate impairment" (Class 3); Assessor Jager assessed the impairment as mild (Class 2); and Dr Snowdon assessed those categories as moderate (Class 3) and totally impaired (Class 5), respectively. The third defendant, Assessor Jager and Dr Snowdon all gave the first defendant the same scores for social and recreational activities and travel. 10. It is not correct to suggest that the third defendant differed from Assessor Jager solely because it considered that there had been a deterioration in the first defendant's condition and not primarily because it evaluated the medical evidence differently. 11. The differences in the assessments of the third defendant, Assessor Jager and Dr Snowdon reveal divergences of judgment, as well as differences in the material that was before each. As indicated in cl 1.40 of the Guidelines, an assessor (or review panel) is to "use the entire gamut of clinical skill and judgement" in making an assessment. The third defendant's view that the first defendant's condition had stabilised is consistent with the history given in its reasons and, broadly, with the material in the other reports. It is the expression of a professional judgment (that is, a decision as to the merits). 12. When considering the material as a whole, the inference that the panel concluded that any deterioration in the first defendant was "significant" is not reasonably available. The claimed inconsistency in the reasoning is illusory.

[34]

Consideration: Ground 2

In Wingfoot, the High Court determined, in a similar statutory regime concerning a medical panel of assessors in a Victorian workers compensation context, the duty to give reasons as follows (at [55]): [55] 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, the 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. (See also Ali at [49].)
The plaintiff accepted that the category "concentration, persistence and pace" included both "persistence and pace". However, the review panel's findings plainly included a number of factors that were related to "concentration" and it is these factors that have not been properly explained, for the reasons set out in the plaintiff's summary submissions.
In Sadsad v NRMA Insurance Ltd (2014) 67 MVR 601, the Court considered the adequacy of reasons of a medical assessor. After applying Wingfoot, and citing Campbelltown City Council v Vegan (2006) 67 NSWLR 372; [2006] NSWCA 284, Hamill J stated (at [47]-[48]): [47] "It is one thing to give a "beneficial construction" to the reasons of an administrative decision-maker. It is another to fill in the gaps in the path of reasoning by reference to an assumption that the decision was made according to the relevant law (in this case cl 2.5). This accords with the approach taken by Stone J in SZCBT v Minister for Immigration and Multicultural Affairs [2007] FCA 9 at [26]: [26] The minister urged a "beneficial" construction of the Tribunal's reasons and referred to comments made in Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259; 136 ALR 481; 41 ALD 1, in particular at CLR 271-2; ALR 490-1; ALD 8-9. The phrase "beneficial construction", as used in Wu Shan Liang has a specific meaning, and was certainly not intended to mean that any ambiguity in the Tribunal's reasons be resolved in the Tribunal's favour. Rather, the construction of the Tribunal's reasons should be beneficial in the sense that the Tribunal's reasons would not be over-zealously scrutinised, with an eye attuned to error. In this sense a "beneficial" approach to the Tribunal's reasons does not require this court to assume that a vital issue was addressed when there is no evidence of this and, indeed, the general thrust of the Tribunal's comments suggest that the issue was overlooked. [48] Further, while to "fulfil a minimum legal standard, the reasons need not be extensive", "where more than one conclusion is open, it will be necessary for the [decision-maker] to give some explanation of its preference for one conclusion over another": Vegan (above) at [121]-[122] per Basten JA."

[35]

Plaintiff's Submissions

The plaintiff made the following submissions in relation to this ground as follows: 54. The decision was vitiated by legal unreasonableness (Minister for Immigration v Li (2013) 249 CLR 332; [2013] HCA 18). In Li, the Court observed (at [68] and [76]): "[68] Lord Greene MR's oft-quoted formulation of unreasonableness in Wednesbury (155) has been criticised for "circularity and vagueness", as have subsequent attempts to clarify it (156). However, as has been noted, Wednesbury is not the starting point for the standard of reasonableness, nor should it be considered the end point. The legal standard of unreasonableness should not be considered as limited to what is in effect an irrational, if not bizarre, decision - which is to say one that is so unreasonable that no reasonable person could have arrived at it - nor should Lord Greene MR be taken to have limited unreasonableness in this way in his judgment in Wednesbury. This aspect of his Lordship's judgment may more sensibly be taken to recognise that an inference of unreasonableness may in some cases be objectively drawn even where a particular error in reasoning cannot be identified. This is recognised by the principles governing the review of a judicial discretion, which, it may be observed, were settled in Australia by House v The King (157), before Wednesbury was decided. And the same principles evidently informed what was said by Dixon J about review of an administrative decision in Avon Downs Pty Ltd v Federal Commissioner of Taxation (158), which was decided less than two years after Wednesbury, at a time when it was the practice of the High Court to follow decisions of the Court of Appeal in England which appeared to have settled the law in a particular area (159). [76] As to the inferences that may be drawn by an appellate court, it was said in House v The King (173) that an appellate court may infer that in some way there has been a failure properly to exercise the discretion "if upon the facts [the result] is unreasonable or plainly unjust". The same reasoning might apply to the review of the exercise of a statutory discretion, where unreasonableness is an inference drawn from the facts and from the matters falling for consideration in the exercise of the statutory power. Even where some reasons have been provided, as is the case here, it may nevertheless not be possible for a court to comprehend how the decision was arrived at. Unreasonableness is a conclusion which may be applied to a decision which lacks an evident and intelligible justification." 56. No sensible review panel acting with due appreciation of its responsibilities would have assessed the claimant as having Class 3 impairment for "Concentration Persistence and Pace" in the circumstances where there were the inconsistencies set out above. 57. The review panel failed to give adequate weight to relevant factors of great importance, In particular, that Dr Jager had found that the claimant's view of his concentration was more pessimistic than the reality, and that the claimant demonstrated no concentration deficits on examination. 58. The review panel reasoned illogically or irrationally. In IAG Limited v Sleiman [2017] NSWSC 1346 it was held that internally inconsistent reasoning resulted in the decision lacking evident and intelligible justification and therefore the decision should be set aside for legal unreasonableness. Fagan J stated at [28]: "Substantially for the reasons given at [20] - [22], the assessor's attribution to the first defendant of a likely future rate of earnings, but for the accident, of $1,000 per week is strikingly and demonstrably unreasonable. It is inconsistent, internally, with the evidence recorded by the assessor and which she states she has relied upon. Notably, the four and a half years past earnings disclosed in the first defendant's tax returns. It is inconsistent with the assessor's stated assumption and reasoning that the first defendant's pattern of employment would have continued as before." 59. The submissions above regarding the internally inconsistent of the review panel can therefore also be characterised as legal unreasonableness.

[36]

The First Defendant's Submissions

Making adjustments for the short forms used in this judgment, the first defendant made the following submissions in relation to ground 3: 80. The plaintiff contends that [the third defendant]'s decision was legally unreasonable. While couched as a legal error, the plaintiff's real complaint is again about the (impermissible) merits of the panel's decision. 81. The plaintiff complains (PS [56]) that the assessment of [the first defendant] as having a Class 3 impairment for "concentration, persistence and pace" was unreasonable, given the "inconsistencies" to which it has pointed. 82. It also complains that the panel failed to "give adequate weight to relevant factors of great importance" being Dr Jager's finding that [the first defendant]'s view of his concentration was more pessimistic than the reality, and that he demonstrated no concentration deficits on examination (PS [57]). 83. Both of these complaints are about the merits of the panel's findings. 84. Review on the ground of unreasonableness "does not involve the Court reviewing the merits of the decision under the guise of an evaluation of the decision's reasonableness, or the Court substituting its own view as to how the decision should be exercised for that of the decision maker": Minister for Immigration and Border Protection v Eden (2016) 240 FCR 158 ("Eden") at [59]; cited in Simiana v Harness Racing New South Wales [2019] NSWSC 11 at [98]; see also Minister for Immigration and Border Protection v Stretton (2016) 237 FCR 1 ("Stretton") at [8]. The "task for the Court is not to assess what it thinks is reasonable and thereby conclude (as if in an appeal concerning breach of duty of care) that any other view displays error; rather, the task is to evaluate the quality of the decision, by reference to the statutory source of the power and thus, from its scope, purpose and objects to assess whether it is lawful": Stretton at [12]. 85. The panel based its opinion that [the first defendant] had a moderate impairment for "concentration, persistence and pace" upon the material before it, as a whole. The "inconsistencies" to which the plaintiff points are either non-existent or very minor. 86. The task of determining whether a decision is legally unreasonable requires the court to assess the quality of the administrative decision by reference to the statutory source of the power exercised in making the decision (Minister for Immigration and Border Protection v SZVFW (2018) 92 ALJR 713 ("SZVFW"), Nettle and Gordon JJ at [79]; Eden at [63]). In this case, the legal unreasonableness is said to arise in the application of guidelines by a review panel constituted by three medical assessors (Act, section 63). The medical assessors must be medical practitioners and other suitably qualified persons (Act, section 59(1)). The task of a review panel is "to apply the expertise of medical professionals to its review of a medical assessment initially made by a medical professional" (McKee v Allianz Australia Insurance Ltd (2008) 71 NSWLR 609 at [30]). 87. In examining a reasoned, unanimous decision of a panel of medical assessors, and considering whether the decision was unreasonable because of the way in which it evaluated the degree of a claimant's impairment, the statutory context would suggest that a court would be very slow to find that the decision was legally unreasonable. To do so would be to find that the panel had acted outside the scope of the statutory authority conferred on it or that it had abused its statutory power (SZVFW, Gageler J at [54], Nettle and Gordon JJ at [80]). 88. There is nothing in the matters raised by the plaintiff to indicate that [the third defendant] made any findings which were outside the authority conferred upon it. To the contrary, it found, within the limits of its power and on the evidence before it, that the plaintiff had a permanent impairment of more than 10%. 89. This finding was open to it.

[37]

Consideration

This ground of review is supported by the High Court in Minister for Immigration v Li (2013) 249 CLR 332; [2013] HCA 18 and has been applied by this Court in relation to the very type of error complained of here: IAG Limited v Sleiman (2017) 82 MVR 1; [2017] NSWSC 1346.
As the High Court said in Hossain (at [25]), "the unavoidable distinction between jurisdictional errors and non-jurisdictional errors is ultimately 'a distinction between errors that are authorised and errors that are not; between acts that are unauthorised by law and acts that are authorised'". Further, jurisdictional error and a decision wanting in authority are one in the same (see Hossain at [26], extracted in full below).
I accept the submissions of the first defendant that the ground of unreasonableness does not involve the Court reviewing the merits of a decision "under the guise of the decision's unreasonableness". However, I do not consider that the challenges brought by the plaintiff constitute a merits review of the first defendant's submissions.
Further, the plaintiff's submission that it has demonstrated that the findings of the third defendant were not within the scope of the authority conferred upon it, in my view, have real substance.
However, the Court should be slow to find a decision of the kind under review was legally unreasonable. In this case it is unnecessary to do so, having regard to the conclusions reached for grounds 1 and 2.

[38]

JURISDICTIONAL ERROR

The first defendant contended that the alleged errors do not constitute a constructive failure to exercise jurisdiction or any other kind of jurisdictional error.
The submissions of the first defendant in that respect may be briefly outlined as follows: 1. Jurisdictional error is a "failure to comply with one or more statutory preconditions or conditions to an extent which results in a decision which has been made in fact lacking characteristics necessary for it to be given force and effect by the statute pursuant to which the decision-maker purported to make it" (Hossain at [24]). It is an expression of the gravity of an error (Hossain at [25]). A decision made in breach of a condition to be observed in the course of a decision-making process, implied by statute, is not necessarily invalid. There is generally a threshold of materiality in the event of non-compliance (see Hossain at [29]; and SZMTA at [45]). For an error to be jurisdictional, there must be "a material breach of an express or implied condition of the valid exercise of a decision-making power conferred by" an Act (Wei v Minister for Immigration and Border Protection (2015) 257 CLR 22; [2015] HCA 51 at [23]; Hossain at [31]). 2. None of the alleged breaches (if established) were relevantly material.
It may be reiterated, in that respect, that the first defendant did not press a submission that alleged errors did not appear on the face of the record.

[39]

Consideration: Jurisdictional Error

For the plaintiff to establish its case and so to enliven the Court's power to issue remedies it must establish an error of law on the face of the record (the "record" is the written reasons - see, s 69(3) and (4) of the Supreme Court Act 1970 (NSW)). Errors of law on the face of the record need not be errors going to jurisdiction: see, Garcia v MAA (2009) 54 MVR 102; [2009] NSWSC 1056 at [21]-[24] and the discussion in Kirk v Industrial Court of New South Wales (2010) 239 CLR 531; [2010] HCA 1 at [78]-[90] and also [66]-[70].
The first defendant properly did not pursue its submission that the errors that the plaintiff alleged here were, if established, not apparent on the face of the record.
In any event, I note that In Pham v NRMA Insurance Ltd (2014) 66 MVR 152; [2014] NSWCA 22 at [27] it was held (per Leeming JA, with Tobias AJA agreeing) that both a claims assessor's certificate and reasons form part of the record, by reason of the statute requiring reasons to be given. The plaintiff correctly submitted that MAS Assessors' reasons form part of the record, for the same reason, in that the obligation to give reasons is in the Act: s 61(9).
I have found error of law on the face of the record with regard to grounds 1 and 2.
In those circumstances, it is strictly unnecessary to consider whether the errors which I have found are jurisdictional errors. However, I note that, as to the issue of jurisdictional error, the plaintiff has pleaded that the errors include a constructive failure to exercise jurisdiction. The Court of Appeal in Rodger v De Gelder (2015) 71 MVR 514 said (at [95] per Gleeson JA, with Macfarlan and Leeming JJA agreeing): [95] … Jurisdictional error includes a constructive failure to exercise jurisdiction. A constructive failure to exercise jurisdiction arises when a decision-maker misunderstands the nature of its jurisdiction and, in consequence, applies a wrong test, misconceives its duty, fails to apply itself to the real question to be decided, or misunderstands the nature of the opinion it is to form: Minister for Immigration v Yusuf at [41] (Gaudron J).
Indeed, the Court of Appeal in Boyce per Basten JA at [9], [14]-[22], [41], [44], [49]-[51], [66] (Macfarlan JA agreeing) (see also [108] per Sackville AJA); Rutland at [10] (per McColl and Meagher JJA, with Macfarlan JA agreeing) has found that the Guidelines have statutory force and a failure to comply with the Guidelines can constitute a constructive failure to exercise jurisdiction.

[40]

RELIEF

The question is whether there is established relevant error of law on the face of the record that warrants quashing the decision, should that step be determined to be taken in the Court's discretion. That is the nature of judicial review proceedings as distinct from an appeal or review on questions of law, fact or discretion.
The first defendant submitted that, should the Court find that the third defendant made any error concerning the application of cl 1.41 of the Guidelines, it should decline to grant relief in its discretion. This is because cl 1.41 is primarily intended to benefit a claimant and ensure that the claimant is afforded procedural fairness. The first defendant contended that he had made no complaint about the third defendant's application of that clause. Further, the first defendant submitted that the plaintiff should not be granted relief where any failure of compliance of the Guidelines did not directly affect it. The further amended summons, it was contended, should be dismissed.
Having regard to the purpose of cl 1.41 of the Guidelines as discussed in Dominice, my findings as to the proper operation of the provision, the circumstances of this matter as discussed in this judgment and the materiality of the errors of law by the third defendant, I do not accept those submissions.
An orders in the nature of certiorari should be made quashing the decision of the third defendant and an order should be made in the nature of mandamus remitting the matters the subject of the third defendant's decision to the SIRA for reallocation to a Medical Assessors Panel for determination of the matter according to law.
Both parties agreed that costs should follow the event. I shall make orders against the first defendant accordingly, noting my conclusions below as to the Suitors' Fund.

[41]

SUITORS' FUND APPLICATION

Following the conclusion of proceedings, the first defendant filed submissions dated 5 August 2020 seeking the grant of a certificate under the Suitors' Fund, in the event the plaintiff was successful on its appeal, pursuant to the Suitors' Fund Act 1951 (NSW) ("the SF Act"). The first defendant sought the following order: The first defendant to be granted an indemnity certificate under the Suitors Fund Act 1951 (NSW) if eligible.
The first defendant's submissions were brief and are extracted in full below: 1. If the plaintiff's summons is not [sic] successful, the first defendant hereby makes an application that in addition to the usual order as to costs, there should be ordered a certificate under the Suitors' Fund Act 1951 (NSW). 2. Under that fund, the NSW Attorney General may award the respondent up to $10,000 for participating in these judicial review proceedings (section 6C(2) of the Suitors' Fund Act 1951 (NSW)). 3. A certificate under the Suitors Fund was issued to an unsuccessful individual litigant in, for example, motor accidents judicial review cases in similar circumstances in: - Allianz Australia Insurance Ltd v Ward (2010) 79 NSWLR 657 at [82] and [83] (Hidden J) (claims assessor); - GIO v Smith (No 2) [2011] NSWSC 998 at [9], [13] and [14](Hoeben J)(1 September 2011) (medical assessors review panel); - Insurance Australia Limited t/as NRMA Insurance v Banos (No 2) [2013] NSWSC 1668 (Campbell J) (claims assessor); - IAG Ltd v Riley (2013) 64 MVR 191; [2013] NSWSC 684 (Davies J)(medical assessors review panel); - Allianz Australia Insurance Ltd v Tarabay (2013) 62 MVR 537; [2013] NSWSC 141 (Rothman J) (claims assessor); and - CIC Allianz Australia Limited v Daniel Luke McDonald (2012) 61 MVR 382 (Hidden J) (claims assessor). 4. The decision under review here was a decision of the medical assessors review panel, made after a clinical examination of the first defendant and receiving submissions of the two opposing parties (the insurer and the claimant). The decision-maker is properly regarded as a quasi-judicial tribunal and, in essence a "court" within the definition of that word in section 2(1) of the Suitors' Fund Act 1951 (NSW). Section 2 of the Act defines "court" to include "such tribunals or other bodies as are prescribed". The regulations have not prescribed a tribunal or other body as a court. In Australian Postal Commission v Dao (No. 2) (1986) 6 NSWLR 497 at 513-514, Kirby P said of the Equal Opportunity Tribunal: "It would seem unlikely, given the history and the purpose of the Suitors' Fund Act 1951, the increase since its enactment in the number and kind of statutory tribunals and the relationship established between the Tribunal and the Supreme Court, that appeals should lie on questions of law but not attract the protection of the Suitors' Fund Act because the Tribunal is not a court." 5. In Dao at 516 McHugh JA said after observing the liberal construction by courts of the word "appeal" in the Act, that: "The word 'court' should likewise be given a liberal and beneficial construction to accord with the purpose and policy of the Act. The correct approach is for the Court to ask itself whether, bearing in mind the general purpose of the Suitors' Fund Act, Parliament must be taken to have intended that the Tribunal should qualify as a court? I think that the question should be answered in the affirmative. Whether the Tribunal is a 'court' for purposes other than the Act is beside the point." 6. Consistent with this beneficial interpretation of the Act, the following tribunals have been held for the purposes of the Act to be courts; - The Equal Opportunity Tribunal: Dao, supra; - The Government and Related Employees Appeal Tribunal: Reid v Sydney City Council (1995) 35 NSWLR 719 and Commissioner of Corrective Services v Government and Related Employees Appeal Tribunal [2004] NSWCA 337; -The Full Bench of the Industrial Relations Commission: Moama Bowling Club Limited v Armstrong (No 2) (1995) 64 IR 264 (application under s.6(1A)); - The Medical Disciplinary Tribunal and its successors: Qidwai v Brown [1984] 1 NSWLR 100, Walton v McBride (1995) 36 NSWLR 440, Macarthur v Walton (unreported; NSWCA; Priestley, Handley & Powell JJA; 31 August 1995), and Health Care Complaints Commission v A Medical Practitioner [2001] NSWCA 158 - The Consumer Traders and Tenancy Tribunal: Krslovic Homes v Sparkes [2004] NSWSC 374, Rural and General Insurance v Fair Trading Tribunal [2004] NSWSC 396, and Burringbar Real Estate Centre Pty Ltd v Ryder [2008] NSWSC 891. - Strata Titles Board: Anderson Stuart v Treleaven [2000] NSWSC 536; - The Administrative Decisions Tribunal: Trust Company of Australia Ltd v Skiwing Pty Ltd (2006) 68 NSWLR 366, [2006] NSWCA 387 at [74]. - The Registrar of the Supreme Court: Tisdale v Ballanday [2009] NSWSC 56 at 158 (see the paper by Valentino Musico, CSO Senior Solicitor, 11 August 2010 titled "The Suitors' Fund Act 1951"). 7. See also the Court of Appeal's decision in Lou v IAG Limited t/as NRMA Insurance [2019] NSWCA 319 at [63] and [85] where many of these principles were discussed and a decision of a SIRA claims assessor (determining damages or exemptions) was held to constitute a decision of a "court or tribunal" and the claimant was entitled to a certificate under the Suitors' Fund. 8. Here, it was reasonable for the first defendant to have defended these proceedings and to oppose the testing of the validity of the tribunal's decision here and a Suitors Fund direction should be made, if the first defendant is eligible.

[42]

ORDERS

The plaintiff shall bring in short minutes of order reflecting this judgment within 7 days of the publication of this judgment. 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: 10 August 2020

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