Insurance Australia Group Ltd t/as NRMA Insurance v Ilsley

oper Officer appointed by SIRA (Third Defendant) Peter Harvey, in his capacity as a CARS assessor appointed by SIRA (Fourth Defendant) Representation: Counsel: K Rewell SC (Plaintiff) M Robinson SC with C Hart (First Defendant)

Solicitors: Moray & Agnew (Plaintiff) Bale Boshev Lawyers (First Defendant) Crown Solicitor's Office (Second, Third and Fourth Defendants) File Number(s): 2018/111280

JUDGMENT

1. HIS HONOUR: On 13 February 2014, Ms Patricia Ilsley, the first defendant, was involved in a motor vehicle accident falling within the meaning of that expression in s 3 of the Motor Accidents Compensation Act 1999 (NSW) ("the Act"). Liability was wholly admitted by the compulsory third party insurer of the vehicle at fault, Insurance Australia Group Ltd (trading as NRMA Insurance) ("the plaintiff").
2. The first defendant claimed that she had suffered physical and psychiatric injuries caused by the motor vehicle accident. She claimed damages for non-economic loss as contemplated by Pt 5.3 of the Act.
3. 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) and61(10) of the Act). The scheme of the Act provides for physical and psychiatric injuries to be separately assessed in terms of whole person impairment, such that the results may not be aggravated (see, in particular, s 133).
4. There was a dispute between the first defendant and the plaintiff as to the degree of her permanent impairment and, in particular, whether her degree of impairment was sufficient for an award of damages for non-economic loss as discussed above. That dispute extended to the psychiatric and psychological injuries relied upon by the first defendant. Section 132(1) of the Act provides that, in such circumstances, 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.
5. Part 3.4 of the Act 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.
6. Section 60(1) provides that a medical dispute may be referred to the Motor Accident's Medical Assessment Service ("MAS") under the authority of the State Insurance Regulatory Authority ("SIRA"), the second defendant.
7. Section 61 of the Act provides that the medical assessors to whom the medical dispute is referred are to give a certificate as to the matters referred for assessment. Associate Professor Paul Myers and Dr Norman Robert Rose had this obligation.
8. The first defendant's physical injuries were assessed by Associate Professor Myers. He issued a Certificate on 15 June 2016.
9. The first defendant's claim as to psychiatric injuries was referred for assessment by Dr Rose. He issued a Certificate on 26 July 2016.
10. Section 61(2) provides that any such certificate as to a medical assessment matter is conclusive evidence as to the matters certified in any court proceedings or in any assessment by a Claims Assessor in respect of the claim concern. That provision is subject to the requirements of ss 62 and 63 of the Act to which I will return.
11. An application for a general assessment was filed with the Claims Assessment and Resolution Service ("CARS") by the first defendant and a reply to that application was lodged by the plaintiff. The plaintiff made a submission on 20 November 2017 in which an application was made for further medical assessment pursuant to s 62 of the Act. That application was directed to the assessment made by Dr Rose and was predicated upon the claimed existence of "additional relevant information" about the injury sustained in the motor vehicle accident (it may be noted that an application under s 62(1) may also be brought on the ground of a deterioration of the injury). The additional material relied upon by the plaintiff, for the purposes of these proceedings, was as follows: the Certificate of Associate Professor Myers; a medical report of Dr Robin Mitchell, occupational physician, dated 2 November 2017; and the clinical notes of Ms Laura Francke, a psychologist (that material shall hereinafter be referred to, collectively, as "the additional information").
12. Reply submissions were made by the first defendant on 22 December 2017.
13. On 11 January 2018, the plaintiff's application for further assessment under s 62(1)(a) of the Act was determined adversely to the plaintiff by a Proper Officer of SIRA (see s 62(1B)), Ms Sarah Edwards, the third defendant (the Proper Officer shall be referred to as "the third defendant" and her decision as "the third defendant's decision").
14. On 12 February 2013, the plaintiff forwarded submissions to CARS seeking, inter alia, that, pursuant to s 62(1)(b) of the Act, a Claims Assessor refer "the matter back to MAS" for a further medical assessment ("the plaintiff's further CARS submission").
15. On 6 April 2018, CARS assessor Mr Peter Harvey, the fourth defendant, determined not to refer the matter for further medical assessment (Mr Harvey shall be referred to as "the fourth defendant" and his decision as "the fourth defendant's decision").
16. The second, third and fourth defendants issued submitting appearances with respect to all orders sought and the giving of entry of judgment with respect to all claims made, save as to costs.

JUDICIAL REVIEW

1. By an amended summons filed 27 April 2018, the plaintiff sought an order in the nature of certiorari or, alternatively, a declaration setting aside or declaring invalid the third defendant's decision and the fourth defendant's decision.

Relief claimed as to costs and formal orders

1. The relief claimed by the plaintiff was as follows: 1. An order in the nature of certiorari or, alternatively, a declaration setting aside or declaring invalid the decision of the third defendant, the "Proper Officer" of the second defendant, purportedly made under the Act, namely, the determination made on or about 11 January 2018 to refuse the plaintiff's application to refer the medical dispute in relation to the first defendant's alleged psychiatric injuries to a medical assessor for further assessment pursuant to s 62(1)(a) of the Act. 2. An order in the nature of certiorari or, alternatively, a declaration setting aside or declaring invalid the decision of the fourth defendant, a Claims Assessor appointed by the second defendant, purportedly made under the Act, namely, the determination made on or about 6 April 2018 and the reasons for determination dated 10 April 2018 to refuse to refer the medical dispute in relation to the first defendant's alleged psychiatric injuries to a medical assessor for further assessment pursuant to s 62(1)(b) of the Act. 3. An order that the matter be remitted to the second defendant for determination according to law by a different Proper Officer of the plaintiff's application for further medical assessment of the first defendant's alleged psychiatric injuries and impairment under s 62(1)(a) of the Act. 4. An order that the matter be remitted to the fourth defendant for determination according to law of the plaintiff's application for further medical assessment of the first defendant's alleged psychiatric injuries and impairment under s 62(1)(b) of the Act.

Grounds for judicial review

1. The plaintiff articulated five grounds for judicial review. Each ground included a narrative as to the contentions in support of the ground. Given some of the difficulties involved in identifying with precision the true nature of the alleged error in grounds 1 and 2, they shall be fully extracted below. It will be sufficient to identify the substance of grounds 3 to 5.
2. Ground 1 bears the heading "The Proper Officer failed to have regard to a relevant consideration" and was expressed in the amended summons as follows: 28. The Plaintiff asserts that the Proper Officer failed to have regard to a relevant matter in refusing the Plaintiff's application for further medial assessment of the First Defendant's psychiatric injuries, namely that Dr Myers and Dr Mitchell found that the First Defendant's neck symptoms are unrelated to the motor accident in February 2014. 29. As to the Certificate of Dr Myers and the report of Dr Mitchell, Ms Edwards said [14]: While I may be satisfied that the certificate of Assessor Myers is additional relevant information to a psychiatric assessment, I am not satisfied that it would be such as to be capable of having a material effect on the outcome of the previous assessment. The information before Assessor Rose made it clear that First Defendant had significant pre-accident injuries and symptoms in relation to the spine. 30. But Dr Rose considered that the First Defendant's pre-accident neck pain had been aggravated by the motor accident, to the extent that Dr Rose could justify a diagnosis of 'Pain Disorder". 31. Undoubtedly, Dr Rose's assumption that First Defendant suffered ongoing severe neck pain to which the accident in February 2014 contributed, was significant in his diagnosis of a "Major Depressive Disorder". 32. The certificate of Dr Myers and the report of Dr Mitchell, being prepared by medical specialists qualified to assess the cause of physical pain (unlike Dr Rose), undermine altogether the basis for Dr Rose's diagnoses of Pain Disorder and Major Depressive Disorder. 33. That would leave only Dr Rose's diagnosis of Post-Traumatic Stress Disorder, which might alone be insufficient to satisfy the threshold of greater than 10% whole person impairment for damages for non-economic loss. 34. By failing to take this relevant consideration into account, the Proper Officer erred in concluding that the certificate of Dr Myers and the report of Dr Mitchell are not capable of having a material effect on the outcome of Dr Rose's assessment. 35. The clinical notes of Ms Fran[c]ke demonstrate that, contrary to the First Defendant's statement to Dr Rose, the First Defendant had significant psychiatric symptoms well prior to the accident on 13 February 2014. 36. Had Dr Rose been aware that the First Defendant was treated by Ms Fran[c]ke, the estimate by Dr Rose of psychiatric impairment caused by the subject accident may have been much less. His diagnoses may have been affected. 37. The Proper Officer erred in determining that the clinical notes of Ms Fran[c]ke were unlikely to be capable of having a material effect on the outcome of Dr Rose's assessment.

FACTUAL BACKGROUND

1. There was no dispute as to the factual background or the receipt of the material discussed below in the determination of the summons.

The Certificate of Associate Professor Myers

1. Associate Professor Myers reported on the history of symptoms and treatment following the motor vehicle accident. He indicated that the first defendant was taken to Maitland Hospital by ambulance. Various imaging was conducted. She was discharged and saw her general practitioner who sent her to physiotherapy. Headaches became worse despite the taking of morphine. She then saw Dr Dandie at Westmead Private Hospital who told her that her neck was dislocated. She had an operation as a private patient resulting in multiple screws being placed in her neck. This occurred about 4-5 months after the motor vehicle accident.
2. Associate Professor Myers then reported on the current symptoms which the first defendant was experiencing. As to her cervical spine, he recorded: She says she has pain from the bottom of the back of the cervical spine radiating in the midline up over the back of the head, over the vertex and over the front of the scalp to about the level of the eyes. She describes electric shocks, which she says pass from the neck straight through her body. She said "they just go straight through like a jolt from an electric chair". She says she has headaches. She says "they fill up and they feel like a nerve exploding with every heart beat". She says she has pins and needles and tingling, in the lips particularly, and in the chin and cheeks but also in other places. She says she feels a vibration when she puts her head back on her neck. She says she is worse with leaning back and she gets what she describes as "a sick, nauseous, black feeling".
3. As to her lumbosacral spine, he recorded: She says it does not stop throbbing. She says she gets sharp shooting pains. She says this goes to her buttocks. She says pain passes around to her right groin and down the anterior aspect of the leg to the knee. She says both the knees are numb and have been since the motor vehicle accident.
4. Associate Professor Myers undertook a review of "relevant documentation". As part of that review he made the following observations: On 10 October 2013 i.e. approximately 4 months prior to the motor vehicle accident, Ms Adele Buchanan, a physiotherapist, noted that Mrs Ilsley was reporting long standing cervical disease after numerous race and training injuries from horse work but with worsening symptoms over the past 12 months. "She has now experienced severe occipital pain and fullness, shooting head pains and dizziness, pins and needles to both hands and left sided tinnitus". The physiotherapist noted that Mrs Ilsley had been seeing a chiropractor for a long time, but that he had indicated that he was no longer willing to treat her neck because of the worsening of her symptoms. Ms Buchanan noted "a neural tension test of her left cervical nerves reproduced some of the hand symptoms". (I am unsure of the meaning of that - PCM). [Original internal note, with original emphasis.] Dr Leon Kleinman, in the document labelled "Rl", saw Mrs Ilsley on 4 August 2015 on behalf of NRMA Insurance. He noted that Dr Wellings had noted that Mrs Ilsley had had, in April 2013, ''long standing cervical disease after a number of racing and training accidents around her profession as a horse trainer. It first occurred in 1989 with subsequent incidents in 2005 and 2008.

The Certificate of Dr Rose

1. Dr Rose commenced his report by summarising his overall conclusion as follows: The following injuries caused by the motor accident give rise to a permanent impairment which IS GREATER THAN 10%: • Major depressive disorder • Pain disorder • Chronic post-traumatic stress disorder [Original emphasis.]
2. In the introduction to his report, Dr Rose provides a list of injuries to be assessed as follows: major depressive disorder, pain disorder and chronic post-traumatic stress disorder.
3. Dr Rose took a history from the first defendant. In that history he dealt with: pre-accident medical history; relevant personal details; psychosocial history; pre-accident functioning; history of the motor vehicle accident; history of symptoms and treatment following the motor vehicle accident; details of any relevant injuries or conditions sustained since the motor vehicle accident; current symptoms and current and proposed treatment.
4. The entries under the first three headings are extracted below (save for a partial excision of contents under the third heading): Pre-Accident Medical History There was a long history of neck injury-related tinnitus and vertigo following a number of falls from horses when Ms Ilsley was much younger, as indicated in the report of A/Prof Kleinman. In the past Ms Ilsley has had a hysterectomy, tonsil operation and removal of the appendix. From a psychiatric perspective she admits that she was somewhat depressed and unsettled when her parents died and when she was caring for a brother who had been dying from a brain tumour. She admits that she slept poorly after the death of her brother but she said that from the time that she had been in her 30s and she first developed tinnitus, she had had poor sleep. She reluctantly admitted being somewhat depressed, as indicated in the consultation notes of Dr Choat, and the psychological consultation notes. It is of note that Ms Ilsley claims that prior to the subject motor accident she did not use alcohol. Relevant Personal Details Prior to the motor accident Ms Ilsley, despite being on a disability pension and despite having chronic pain, was able to live alone on a horse property. Unfortunately, following the motor accident she had to be cared for on a fulltime basis by an old family friend. She has no children. She has been in receipt of a disability support pension for many years because of her physical injuries to the neck, in particular, that have caused her to suffer tinnitus and vertigo as well as chronic pain. It is of note that she was brought up as a Catholic and she has always had a sense of being close to God but in recent years, particularly since the accident she has not gone to Mass. She says that God has always helped her. Psychosocial History Because of her extreme agitation and confusion, it was difficult to get a coherent history. Ms Ilsley said that she no longer talks to members of her biological family except for her sister who lives in Forster and who is suffering from cancer. She said that she did not like her family and that she fell out to an even greater extent when her father was dying and there were financial disputes about this. She said that she fell out with most family members over 30 years ago. …

Report of Dr Mitchell

1. As earlier mentioned, the plaintiff obtained a medical report from Dr Mitchell, occupational physician, issued on 2 November 2017. He opined that the first defendant's neck pain at the level of C5/C6 initially developed following a number of falls from horses from 2005. He concluded that "the required subsequent spinal surgery and ongoing neck pain and treatment [were] not causally related to the subject motor vehicle accident". He further opined that "low back and her leg symptoms do not follow any clear clinical pattern and there was no objective clinical evidence of any underlying injury in the lower back to explain her reported symptoms".
2. The plaintiff submitted that Dr Mitchell's conclusion was that the issues with the first defendant's back were completely unrelated to the motor vehicle accident and the neck was almost completely unrelated to that accident.

Application by the Plaintiff for Further Medical Assessment

1. The plaintiff applied to MAS for a further medical assessment of the first defendant's psychological injuries pursuant to s 62(1)(a) of the Act. The plaintiff's submission to MAS included the following: 97. Assessor Rose appears to have accepted the fact that the claimant's chronic pain and pain disorder following the accident the subject of her claim were caused by the accident the subject of her claim. 98. It is now clear from the opinions of assessor Myers and Dr Mitchell that that is not the case and that the cervical surgery was not related to the accident. 99. The chronic pain and pain disorder is a consequence of the claimant's pre-accident condition and any lack of concentration and depressive disorder suffered because of chronic pain is unrelated to the accident. 100. The claimant denied the claimant denied any previous problems with her neck to Dr Menogue, and denied pre accident psychiatric condition and any past history of mental health contacts, treatment or admissions to various doctors, contrary to the available evidence. 101. The insurer submits that the claimant's subjective complaints and history should therefore not be accepted, unless confirmed by independent objective evidence. 102. The insurer therefore submits that the additional evidence referred to above is evidence that was not reasonably available prior to the examination of Assessor Rose and is material, in that were this additional evidence to be accepted the claimant would not suffer any whole person impairment, as any current psychiatric condition is unrelated to the accident the subject of her claim but is a consequence of her pre-existing condition.
2. The plaintiff also contended that it relied upon the clinical notes of Ms Francke detailing psychological treatment provided to the first defendant between 2010 and 2011, three to four years prior to the accident. The first defendant pointed to an entry in Ms Francke's clinical notes on 26 July 2011, wherein she stated: At our last session Trisha and I decided to cease therapy for the time being due to her excellent improvement in her capacity to act consistently with her values and manage her mood and her increased her [sic] capacity to engage productively in life. While Trisha still experiences occasional 'down days' and some difficulties with anxiety she described how she has now been able to approach life with 'boldness and confidence' that was previously lacking.

Reply Submissions by the First Defendant in relation to Application to the Third Defendant

1. The first defendant made a reasonably lengthy submission in response to the plaintiff's application and submission. For present purposes, I will extract that part falling under the heading "A. Dr Myers - Paras 8-12" as follows: (i) The Allegation seems to be that as [Associate Professor] Myers was unconvinced that the Claimant's back problems were related to the accident. (ii) He did find that the neck had been injured in the accident, but noted a pre-existing condition. (iii) The Insurer appears to believe that as Assessor Rose had not seen this report, it somehow tainted his opinion. (iv) This is a fallacious argument. It is clear from precedent that an Assessor's determination on causation is only binding so far as the NEL claim is concerned, and otherwise it is merely another opinion. (v) Thus, while Assessor Myers opinion is binding on causation so far as the NEL claim for the neck and back are concerned, it is merely another opinion so far as the NEL claim for the psychological injury is concer[n]ed. Assessor Rose had ample opinion from treating doctors that he was entitled to accept, and he did so. There is no error. (vi) The report can only be regarded as a difference of opinion, and not new information. (Miles v MAA [2013] NSWSC 927). (vii) The insurer, in the earlier MAS application, provided the report of Dr Kleinman, who came to the conclusion that the applicant suffered pre-existing, degenerative changes in her neck and sustained soft tissue injury to her neck and back. This is substantially the same opinion as [Associate Professor] Myers. There is no new information. He also found a 25% whole person impairment to the neck, with 80% related to pre­-existing conditions. He found 0% impairment to the back. (viii) It is difficult to understand how it can be said that [Associate Professor] Myers opinion in 'new information'. (ix) It is not alleged by the insurer that [Associate Professor] Myers report is binding so far as the causation issue is concerned on [Associate Professor] Rose, and nor could it be. [Original emphasis.]

The Third Defendant's Decision

1. As previously mentioned, the plaintiff's application for a further assessment under s 62(1)(a) was dismissed by the third defendant.
2. At the outset of her decision, the third defendant summarised the plaintiff's submissions as follows: 9. The applicant submits that there is additional relevant information about the injury sustained in the motor vehicle accident which was not reasonably available at the time of Assessor Rose's determination and this additional information is capable, if the matter was to proceed to further assessment, of altering the outcome of the dispute from that certified in the previous assessment.
3. The third defendant then identified two grounds relied upon by the plaintiff. The first was that there was an inconsistency between the history provided by the first defendant to Dr Rose and what was recorded in other documentation. The second was that Dr Rose had "accepted that the first defendant's chronic pain and pain disorder were caused by the subject accident".
4. Turning firstly to the Certificate of Associate Professor Myers, the third defendant summarised her understanding of Associate Professor Myers' assessment as follows: 11. The applicant submits that Assessor Myers on pages 6-11 of his certificate summarises in detail the relevant medical evidence and concludes that it is quite apparent that the claimant had had longstanding cervical spine symptoms prior to the motor vehicle accident and longstanding lumbosacral spine issues prior to the motor vehicle accident. Assessor Myers accepted that the claimant had sustained a soft tissue injury to the cervical spine and advised that there was very little evidence in support of an injury to the lumbosacral spine caused by the motor vehicle accident. He found that the surgery to the cervical spine carried out by Dr Dandie was not related to the motor vehicle accident. The applicant submits that the assessment of Assessor Myers was not available to Assessor Rose at the time of his assessment.
5. The third defendant considered that the Certificate of Associate Professor Myers was "additional relevant information to a psychiatric assessment" but that she was not satisfied that it would be capable of having a material effect on the outcome of the previous assessment. She stated "the information before Assessor Rose made it clear that the claimant had significant pre-accident injuries and symptoms in relation to the spine".

Application to the Fourth Defendant for Further Assessment of Psychiatric Injuries

1. By the plaintiff's further CARS submission, the plaintiff applied to the fourth defendant to refer "the matter" for further medical assessment under s 62(1)(b) of the Act.
2. The following represents some extracts from that submission: 7. The claimant told Assessor Rose that prior to the accident she would have friends for dinner and that she would visit them. She claimed that she would go to movies and for meals regularly with friends and she would visit her sister in Forster. The claimant told Dr Rose that she had no problems with concentration, persistence and pace despite being on a disability pension. The claimant told Dr Rose that very soon after the accident she became extremely anxious and depressed and developed frequent panic attacks and nightmares. 8. The claimant alleged that she had severe and chronic pain which was attributable to the motor vehicle accident. 9. Assessor Rose at the time of his determination was not in possession of the MAS Certificate of Assessor Myers dated 15 June 2016 (R4). 10. The claimant alleged that as a consequence of the motor vehicle accident she suffered cervical spine disc injury at C5/6, decreased sensory changes and moderate tenderness and a lumbar spine - L5 nerve injury with radiculopathy, spasm, a decreased sensation and tenderness. 11. However, Assessor Myers on pages 6 to 11 of his MAS Certificate dated 15 June 2016 (A5) summarised in detail the relevant medical evidence and concludes that it is quite apparent that the claimant had longstanding cervical spine symptoms prior to the motor vehicle accident and longstanding lumbosacral spine issues prior to the motor vehicle accident. 12. Assessor Myers accepted that the claimant has sustained soft tissue injury to the cervical spine and advised there was very little evidence in support of an injury to the lumbosacral spine caused by the motor vehicle accident. 13. The doctor therefore found that the surgery to the cervical spine carried out by Dr Dandie was not related to the motor vehicle accident. 14. Assessor Myers assessed overall whole person impairment at 25% however deducted 25% for pre-existing whole person impairment and therefore concluded that the claimant suffered 0% whole person impairment. … 106. Assessor Rose appears to have accepted the fact that the claimant's chronic pain and pain disorder following the accident the subject of her claim were caused by the accident the subject of her claim. 107. It is now clear from the opinions of Assessor Myers and Dr Mitchell that that is not the case and that the cervical surgery was not related to the accident. 108. The chronic pain and pain disorder is a consequence of the claimant's pre-accident condition and any lack of concentration and depressive disorder suffered because of chronic pain is unrelated to the accident. 109. The claimant denied any previous problems with her neck to Dr Mitchell, and denied any pre-accident psychiatric condition and any past history of mental health contacts, treatment or admissions to various doctors, contrary to the available evidence. 110. The insurer submits that the claimant's subjective complaints and history should therefore not be accepted, unless confirmed by independent objective evidence. 111. The insurer therefore submits that the additional evidence referred to above is evidence that was not reasonably available prior to the examination of Assessor Rose and is material. If this additional evidence to be accepted, the claimant would not suffer any whole person impairment, as any current psychiatric condition is unrelated to the accident the subject of her claim but is a consequence of her pre-existing condition. … 117. The insurer submits that the Proper Officer has failed to appreciate that in circumstances where the claimant's physical condition is unrelated to the subject accident, it is not possible for the claimant's pain disorder to be related to the subject accident. 118. The Proper Officer also appears to have failed to appreciate the significance of the further documents in terms of the claimant's consistency of presentation. The additional information indicates that the claimant has provided an inconsistent history in relation to her pre-accident and post-accident function and symptoms. This is particularly relevant in the assessment of psychiatric impairment, noting that an Assessor must apply the Psychiatric Impairment Rating Scale and rely upon the history provided by a claimant to assess level of function and consequent impairment 119. The insurer of course has the avenue to seek a judicial review of the Proper Officer's decision. The insurer has 3 months from the date of the Proper Officer's decision, i.e. until 10 April 2018, to commence judicial review proceedings by filing a summons in the NSW Supreme Court (as per Rule 59.10 of the Uniform Civil Procedure Rules). 120. However, the insurer also notes that Section 5 of the Motor Accident Compensation Act 1999 provides that the object of the Act is to encourage early resolution of compensation claims. Furthermore, clause 1.14 of the Medical Assessment Guidelines provides that the object of MAS in dealing with medical disputes referred is to provide a timely, fair and cost effective system for the assessment of medical disputes. 121. The insurer submits that referral by the Principal Claims Assessor under Section 62(1)(b) of the Motor Accidents Compensation Act 1999 would result in the most timely and cost effective method to obtain a further MAS assessment in the present case, which is warranted in view of the addition information in the insurer's respectful submission.

The Fourth Defendant's Decision

1. On 6 April 2018, the fourth defendant sent an email communication to the relevant parties, which is extracted below: I note the Insurer's below request which is basically for me to decide whether I intend to grant the insurer's application for me to refer the matter back to MAS for further medical assessment pursuant to S 62 (1)(b) of the Act where, subject to my decision on this point, the insurer has until 10 April 2018 to file summons in the Supreme Court seeking judicial review of the MAS Proper Officer's decision dated 11 January 2018 which dismissed the insurer's (initial) application for further assessment I have come to the conclusion that this is not a matter where I ought to grant the insurer's application I have considered, in reaching this decision, the submissions of both parties, and the medical evidence relevant to those submissions, particularly the MAS certificate of Dr Rose dated 26 July 2016
2. The fourth defendant sent a further communication by email on 9 April 2018, in reply to a request for "the complete reasons for [his] decision" by the legal representatives for the first defendant made on that same date, in which he stated: My reasons are as follows: I agree with the decision of the proper officer dated 11 January 2018 (Determination of an Application of Further Medical Assessment) I am satisfied that, after considering the further submissions of the insurer pursuant to its further application to me, the information and documentation provided to me is unlikely to have a material effect on the outcome of the previous assessment of Dr Rose In my view, the insurer's further application does not meet the requirements set forth in S 62 of the Act

LEGISLATIVE PROVISIONS

1. Part 3.4 of the Act concerns "Medical assessment".
2. 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".
3. Section 57A(1) provides that the Authority is to establish in association with its operations a unit, to be known as the "Motor Accidents Medical Assessment Service". The Authority is defined as SIRA: s 3 of the Act.
4. 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)
5. Section 58(1)(d) is the applicable provision in the present proceedings.
6. Section 60(1) provides that a medical dispute may be referred to the Authority for assessment under this Part by, inter alia, either party to the dispute.
7. Section 61(1), (2) and (10) provide as follows: 61 Status of medical assessments (1) The medical assessor or assessors to whom a medical dispute is referred is or are to give a certificate as to the matters referred for assessment. (2) Any such certificate as to a medical assessment matter is conclusive evidence as to the matters certified in any court proceedings or in any assessment by a claims assessor in respect of the claim concerned. … (10) The following procedure is to apply if the assessment of more than one medical assessor is required to assess whether the degree of permanent impairment of the injured person is greater than 10% (not being an assessment of the degree of permanent impairment resulting from psychiatric or psychological injury): (a) each medical assessor is to give a certificate as to the degree of permanent impairment of the injured person resulting from the particular injury or injuries with which the medical assessor's assessment is concerned, (b) based on the matters certified in each such certificate a medical assessor nominated by the Authority for the purpose is to make an assessment of the total degree of permanent impairment resulting from all the injuries with which those certificates are concerned and is to give a certificate (a combined certificate) as to that total degree of permanent impairment, (c) the combined certificate is conclusive evidence as to whether the degree of permanent impairment of the injured person is greater than 10% and this section applies to the combined certificate accordingly.

SUBMISSIONS

1. The following is a summary of the parties' written and oral submissions, save for those earlier summarised in this judgment.

Grounds 1 and 2

1. In oral submissions, the plaintiff addressed grounds 1 and 2 together focusing firstly upon the additional information, so far as it concerned Associate Professor Myers and Dr Mitchell, and nextly the clinical notes of Ms Francke although ground 2 did not engulf the third defendant's consideration of those notes.

The additional information: Associate Professor Myers and Dr Mitchell

1. As to ground 1, the plaintiff made the following submissions: 35. The Plaintiff asserts that the Proper Officer failed to have regard to a relevant matter in refusing the Plaintiffs application for further medial assessment of the First Defendant's psychiatric injuries, namely that Drs Myers and Mitchell found that the First Defendant's neck symptoms are unrelated to the motor accident in February 2004. 36. Dr Rose wrongly assumed that the motor accident caused an increase in the Plaintiff's neck pain; Dr Myers certified that it did not. Dr Mitchell's report is to the same effect. 37. As to the Certificate of Dr Myers and the report of Dr Mitchell. Ms Edwards said [14]: While I may be satisfied that the certificate of Assessor Myers is additional relevant information to a psychiatric assessment, I am not satisfied that it would be such as to be capable of having a material effect on the outcome of the previous assessment. The information before Assessor Rose made it clear that First Defendant had significant pre-accident injuries and symptoms in relation to the spine. 38. But as Ms Edwards herself noted [71], Dr Rose assumed that the First Defendant's pre-existing neck pain was aggravated by the motor accident, to the extent that Dr Rose could justify a diagnosis of "Pain Disorder". 39. Undoubtedly, Dr Rose's assumption that First Defendant suffered ongoing severe neck pain to which the accident in February 2014 contributed. was also significant in his diagnosis of a "Major Depressive Disorder. 40. This brings into play the Certificate of Dr Myers and the report of Dr Mitchell. 41. Although Dr Myers was satisfied that the Claimant suffered a soft tissue injury to her neck caused by the motor accident (p. 8), Dr Myers does not support any relationship between ongoing symptoms (including pain) in the neck, and the motor accident. Dr Myers said (p. 9): Despite the claim that Mrs Ilsley's condition became worse after the motor vehicle accident, there is no objective medical evidence to support that, other than the claim in the Personal Injury Claim Form. She was complaining of cervical pain at Mamand Hospital, but this complaint had been longstanding. 42. Similarly, in connection with the report of Dr Mitchell, Ms Edwards noted that (p. 3): Dr Mitchell considered that there appeared to be little direct relationship between the Claimant's current reported physical symptoms and any consequence of the motor accident. 43. The certificate of Dr Myers and the report of Dr Mitchell, being prepared by medical specialists qualified to assess the cause of physical pain (unlike Dr Rose), undermine altogether the basis for Dr Rose's diagnoses of Pain Disorder and Major Depressive Disorder. 44. That leaves only Dr Rose's diagnosis of Post-Traumatic Stress Disorder, which may well be insufficient by itself to satisfy the threshold of greater than 10% whole person impairment for damages for non-economic loss, The Court (and the Plaintiff) simply cannot disentangle from the total impairment assessed, the component relating to Post-Traumatic Stress Disorder. Any attempt to do so would be mere guesswork. 45. By failing to take this relevant consideration into account, the Proper Officer erred in concluding that the certificate of Dr Myers and the report of Dr Mitchell are not capable of having a material effect on the outcome of Dr Rose's assessment.

Ms Francke

1. As to Ms Francke, the first defendant told Dr Rose she had never had any psychological treatment. It was submitted that the first defendant's representation, in that respect, was wrong.
2. Dr Rose did not have Ms Francke's clinical notes.
3. The third defendant's decision at para 72, namely, that she was not satisfied that the clinical notes of Ms Francke were objective evidence of a symptomatic impairment at the time of the accident, misunderstood the plaintiff's submission. That submission was based on two factors: 1. First, that the history given by Dr Rose was wrong; and 2. Secondly, Ms Francke's clinical notes had the capacity to persuade the third defendant that there was an underlying psychiatric condition prior to the motor vehicle accident.
4. As to the notes of Ms Francke overall, the plaintiff submitted that, had Dr Rose been aware that the first defendant was treated by Ms Francke, the estimate by Dr Rose of psychiatric impairment caused by the subject accident may have been much less. His diagnoses may have been affected.
5. The third defendant erred in determining that the clinical notes of Ms Francke were unlikely to be capable of having a material effect on the outcome of Dr Rose's assessment.

Ground 3

1. As to ground 3, the plaintiff submitted: 53. It is apparent from his emails that Mr Harvey believed that his task was to determine whether there was any "error" in the decision of Ms Edwards. 54. In his email dated 10 April 2018, Mr Harvey refers to "the requirements set forth in s 62 of the Act". Clearly, Mr Harvey was referring to the requirements in s 62(1)(a) and s 62(1A) of the MACA. 55. Mr Harvey's approach to the application made to him by the Plaintiff under s 62(1)(b) was misconceived. 56. The conditions that must be satisfied when a party seeks to have a matter referred for further assessment do not apply to referral by a claims assessor under s 62(1)(b). 57. Specifically, where a claims assessor is considering referring a matter back to MAS under s 62(1)(b), the claims assessor does not have to be satisfied that the material on which a party relies amounts to "additional relevant information about the injury", or that the material is capable of having a material effect on the outcome of the assessment. 58. The discretion under s 62(1)(b) has no specific constraints, is essentially unfettered and is limited only by the scope and purpose of the instrument conferring it: Trazivuk v MAA [2010] NSWCA 287 at [77]; AAMI v Ali [2012] NSWSC 969 at [17]. 59. The most recent authority concerning referral by a claims assessor back to MAS under s 62(1)(b) is Zurich Australian Insurance Ltd v Mestric [2016] NSWCA 187. In Mestric, Adams J said [26]: The process is not a judicial but an administrative one and the objects of CARS, as stated in the Guidelines include the provision of "a timely, fair and cost effective system" (cl 1.14.1), to "assess claims and disputes fairly and according to the substantial merits with as little formality and technicality as is practicable" (cl 1.14.2). Fairness in this context is to be considered broadly and not hedged about by legal distinctions. 60. Mr Harvey's task was to determine whether as a matter of fairness to both parties, the matter should be referred back to MAS for further assessment of the First Defendant's psychiatric injuries, so that the material not considered by Dr Rose, in particular the certificate of [Associate Professor] Myers and the report of Dr Mitchell and the clinical notes of Ms Fran[c]ke, could be taken into account. 61. Mr Harvey approached the Plaintiff's application by considering whether there is any "error" in the decision of Ms Edwards. But that was the wrong test. Mr Harvey asked himself the wrong question, and in doing so fell into legal and/or jurisdictional error.

Ground 4

1. As to ground 4 the plaintiff made the following submission: 62. Mr Harvey fell into legal and/or jurisdictional error in failing to carry out his statutory task, which was to consider whether fairness to the parties, and the objects of the MACA, satisfied him that the matter should, in the exercise of his discretion, be referred back to MAS for further assessment. 63. In approaching the Plaintiff's application as he did, Mr Harvey failed to exercise his discretion under s 62(1)(b) lawfully, or at all.

Relief

1. The plaintiff sought that the decisions of the third and fourth defendants be set aside and an order that the matter be remitted to SIRA for determination. The remitter should be carried out simultaneously, with respect to both impugned decisions, but the plaintiff would request that the fourth defendant consider the matter first. It was submitted, if the fourth defendant granted the plaintiff's application, there would be no need for the third defendant to take any further steps. This approach was available as SIRA "controls" both the third and the fourth defendants.

Submissions for the First Defendant

1. The first defendant filed a written submission on 21 August 2018 and, shortly prior to the hearing of the matter, a supplementary submission dated 7 September 2018 ("the supplementary submission").
2. By the supplementary submission, the first defendant contended, inter alia, that the third defendant's decision was no longer a decision that had any legal effect. It was submitted that the decision, therefore, was not amenable to judicial review and that the challenge to the third defendant's decision should be dismissed.
3. It was also submitted that the Court should, in such circumstances, only be concerned with the third and fourth grounds challenging the fourth defendant's decision, although the first defendant contended that the challenges advanced by the plaintiff against both the third and fourth defendant's decisions were futile.
4. It is, therefore, appropriate to summarise the defendant's submissions by first summarising the defendant's submission as to whether the third defendant's decision is amenable to review and then, in order, the first defendant's submissions as to grounds 3 and 4; grounds 1 and 2 and, lastly, the submissions on futility.

Amenability to judicial review

1. The starting place (and perhaps the end point) for the supplementary submission was Miles v Motor Accidents Authority (NSW) (2013) 84 NSWLR 632; [2013] NSWSC 927 ("Miles") at [46]-[47] (per Hoeben CJ at CL).
2. The first defendant also placed reliance upon Hot Holdings Pty Ltd v Creasy (1996) 185 CLR 149; 134 ALR 469; 70 ALJR 286; [1996] HCA 44 ("Hot Holdings") at 159 (per Brennan CJ and Gaudron and Gummow JJ) to submit that, in order for a writ of certiorari to be issued, it must be possible to identify a decision which has a discernible or apparent legal effect upon rights. It is that legal effect which may be removed for quashing (reliance was also placed upon Commissioner of Taxation of the Commonwealth of Australia v Futuris Corporation Ltd (2008) 237 CLR 146; 247 ALR 605; 82 ALJR 1177; [2008] HCA 32 ("Futuris") at [91] (per Kirby J).
3. The supplementary submission, in that respect, was short and is extracted below: Justiciability of the Proper Officer's Decision (in Judicial Review) 1. An administrative decision is justiciable when it is amendable to or appropriate for judicial determination in the Court's supervisory jurisdiction, as opposed to determination by some means other than the courts. Traditionally, the justiciability of an administrative decision at common law depended on whether the decision is an exercise of statutory or non - statutory power. If the decision is pursuant to statutory power, and providing the other judicial review criteria are met, the decision will be justiciable. If the decision is pursuant to a non-statutory power, it is traditionally not justiciable. See, Hot Holdings Pty Ltd v Creasy (1996) 185 CLR 149 at 159. 2. In this case, for an order in the nature of certiorari to issue (to set the decision aside) there must have been an "ultimate determination" within the meaning of that expression in section 69(3) of the Supreme Court Act 1970 (NSW). 3. Here, the proper officer's decision under challenge is no longer an administrative decision that fell within either limb of the types of decisions identified in Hot Holdings as being amenable to certiorari. It has lost that affect. 4. It is no longer an ultimate decision that affected legal rights (cf: section 69(3) of the Supreme Court Act 1970 (NSW)). 5. The decision has been effectively replaced by a new (relevantly identical) application (to the claims assessor) under the very same section (section 62) based on the very same material that was put to the proper officer. 6. Accordingly, the proper officer's decision is no longer a decision that has any legal effect and it is not amenable to judicial review - see also, Miles v Motor Accidents Authority (NSW) (2013) 84 NSWLR 632 at [46]-[47]. 7. The challenge against the proper officer should accordingly be dismissed. [Original emphasis.]

The fourth defendant's decision (grounds 3 and 4)

1. The first defendant advanced submissions as to the correct legal test for judicial review proceedings in relation to the third defendant's power under s 62(1) and (1A), which are also relevant to the plaintiff's challenge to the fourth defendant's decision. Those submissions will be summarised in dealing with grounds 1 and 2 below. The first defendant's submissions as to "material effect" under grounds 1 and 2 are also applicable (although in the particular context of contentions advanced by the first defendant with respect to grounds 3 and 4).
2. The written submissions of the first defendant as to grounds 3 and 4 were as follows: 23. As to grounds 3 and 4, the claims assessor here has wide discretion (unfettered in its terms) under section 62(l)(b) of the Act. The plaintiff accepts this (at [58]). 24. Read fairly and as a whole, the claims assessor engaged with the plaintiffs application for a further medical assessment, he accepted the proper officer's decision and he determined that the alleged new material would be unlikely to have a material effect of the last medical assessment of Dr Rose (of 50% WPI). 25. That decision was one for him to make and it was plainly open to him. 26. He plainly understood the nature of his task. 27. The contention of the plaintiff (at [53] and [61]) that he approached this task by asking whether the proper officer's decision is incorrect. Nowhere did he ask that question. He simply agreed with the proper officer here and added his own remarks.
3. It was accepted that s 62(1)(b) does not impose the strictures of s 62(1)(a). Thus, the fourth defendant had a broad discretion.
4. Nonetheless, the fourth defendant did not have an unfettered discretion as he was bound to the objects of the Act and its scope and purpose. Further, the application by the plaintiff was based upon the evidence of "additional relevant information" about an injury said to have a material effect for the purposes of s 62(1A). The material before the fourth defendant was essentially the same. The provisions of s 62(1A) were only examined by the fourth defendant because of the nature of the application he had before him. However, the fourth defendant never formally applied s 62(1A).
5. The fourth defendant did not misconstrue the notion of his own jurisdiction. If he did the decision would be quashed and the matter remitted. However, he did not impose a "cap" on the matters he was required to consider. The fourth defendant incorporated the reasoning of the third defendant and then added his own observations. He did deal separately with the issues.

Grounds 1 and 2

1. The correct legal test for use in judicial review proceedings as to the third defendant's power in s 62 of the Act, requires an examination of the test of "satisfaction" of the third defendant as to the facts and matters referred to in sections 62(1) and (1A).
2. Judicial review of that "satisfaction" decision is, on the authorities, limited, it was submitted, to the following grounds of judicial review: 1. Whether the determination was irrational, illogical and not based on findings or inferences of fact supported by logical grounds (QBE Insurance (Australia) Ltd v Miller (2013) 67 MVR 322; [2013] NSWCA 442 ("Miller") at [36] (per Basten JA)); 2. Whether the opinion was formed or reached by taking into account irrelevant considerations, the opinion has not been lawfully formed or the basis for the power is absent (The Queen v Connell; Ex parte Hetton Bellbird Collieries Ltd (1944) 69 CLR 407; 18 ALJR 205; [1944] HCA 42 ("Hetton Bellbird Collieries") at 432 (per Latham CJ); 3. Whether the opinion was formed or reached by misconstruing the terms of the relevant legislation, the opinion has not been lawfully formed or the basis for the power is absent (Hetton Bellbird Collieries at 432); 4. Whether the opinion was arbitrary, capricious, irrational, or not bona fide, the basis for the power is absent (Hetton Bellbird Collieries at 432); 5. Whether the opinion can be described as manifestly unreasonable or irrational and otherwise demonstrates error of law (Miller at [56]); 6. If the result appears to be unreasonable in the legal sense (Avon Downs Pty Ltd v Federal Commissioner of Taxation (1949) 78 CLR 353; 23 ALJR 322; [1949] ALR 792 ("Avon Downs"), cited in Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611; [2010] HCA 16 ("SZMDS") at [104]); 7. If the Court can see that the decision maker in some way must have failed in the discharge of his or her exact function (Avon Downs, cited in SZMDS at [104]; and Minister for Immigration and Citizenship v Li (2013) 249 CLR 332; [2013] HCA 18 ("Li") at [85]); or 8. Whether the opinion involves legal unreasonableness (within the meaning in Li).
3. Further, as to questions of legal principles, the first defendant submitted: 19. As to grounds 1 and 2 of the amended summons, for the plaintiff to be successful, it must first establish that the "relevant" consideration was in fact a mandatory relevant consideration in the sense described in Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at pp 39-40. 20. Before challenging a statutory decision in the Supreme Court injudicial review on the grounds of relevant considerations, a plaintiff must first identify that there exists a legal obligation for the tribunal to take into account the alleged specific consideration. How those considerations are to be taken into account and the weight they are to be accorded are matters for the decision-maker (see, for example, Allianz Australia Insurance Ltd v Cervantes (2012) 61 MVR 443 at [15], [16]). 21. Further, failing to refer to every single piece of evidence that was put into evidence before the decision-maker is not fatal in judicial review. In Reece v Webber (2011) 192 FCR 254 at [65] (Jacobson, Flick and Reeves JJ) the Full Federal Court said: "[A] failure to expressly mention particular material is not conclusive that it has not been taken into account A decision-maker is not normally required in its reasons for decision to refer to "every item of evidence that was before it" and an "omission to refer to a piece of evidence does not necessarily require a conclusion that it has been overlooked'': cf. SZEHN v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1389 at [58] per Lindgren J. See also: SZHPI v Minister for Immigration and Citizenship [2008] FCA 306 at [15] per Branson J; Australian Postal Corporation v Sellick [2008] FCA 236 at [64], 101 ALD 245 at 259 per Bennett J." 22. It is well settled also that there is no obligation for a statutory decision-maker to consider every piece of evidence presented: Rodger v De Gelder (2015) 71 MVR 514 per Gleeson JA at [89]-[90], referring to Cervantes at [19]-[22] and Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 77 ALJR 1088 at [24].

Discretion in judicial review - futility

1. It was submitted that, in the exercise of its discretion, the Court should consider, the futility of any further proceedings being brought by the plaintiff before the third and fourth defendants: see Futuris at [88]-[92].
2. The plaintiff would need to establish that it was possible to change the assessment of Dr Rose from 50% Whole Person Impairment to that of 10% or less (see ss 131 and 133 of the Act).
3. The plaintiff has not and could not establish that such an outcome might arise out of the grant of relief sought in this matter.
4. Further, at no time in the proceedings before the statutory authorities, did the plaintiff, or its legal advisers, commission any duly qualified medical opinion that would have provided an arguable basis for the SIRA officers to have found a favourable decision may have been provided on the "material effect" argument.
5. The plaintiff neither sought to provide Associate Professor Myers' report to Dr Rose nor make an application under s 63 of the Act as to an error in a material respect.

Amenable to judicial review

1. There is no statutory basis for the contention that, once the provisions of s 62(1)(b) were activated, the third defendant's decision was spent or unassailable. Wingfoot does not assist the first defendant and does not mean that the Certificate of Dr Rose may not be revisited. Otherwise s 62(1)(a) would have no effect.
2. The authority in Miles is contrary to the defendant's case and stands for: 1. The decision of the third defendant is justiciable; and 2. Functus officio is not relevant because the decision under review was not a final operative decision. The third defendant was not functus officio.
3. Both of the decisions of the third and fourth defendants were made under different provisions and continue to have force.
4. The first defendant does not contend that the third defendant's decision was "spent" when it made the further application under s 62(1)(b) of the Act.

Grounds 3 and 4

1. The fourth defendant did no more than consider the third defendant's decision. In any event, if he conducted his own assessment, he wrongly felt himself confined by s 62(1A).

Futility

1. If Associate Professor Myers' certificate was before Dr Rose, it was contended, two of three diagnoses may have disappeared.
2. The remaining diagnosis of post-traumatic stress disorder may well have led to a percentage of permanent impairment of less than 10%.
3. Section 63 was not apposite. The issue was not one of an error on the face of the Certificate of Dr Rose but one arising from Dr Rose not considering the Certificate of Associate Professor Myers because it was not provided to him. The issue was Dr Rose did not have before him some relevant matters.
4. As to the complaint that the plaintiff did not insist on the Certificate of Associate Professor Myers being provided to Dr Rose, it was contended that ordinary practice in the MAS system would have resulted in Associate Professor Myers' assessment, in that respect, being provided.

CONSIDERATION

1. The decisions of the third and fourth defendants arose in the context of a medical dispute between the plaintiff and the first defendant as to whether the degree of permanent impairment of the first defendant, as a result of any injury caused by the motor vehicle accident, exceeded 10% (see s 58(1)(d) of the Act).
2. The resolution of a medical assessment matter of that kind ("the matter") is conferred upon medical assessors, subject to control exercised by a court under s 61(4) and (6) of the Act: Miller at [20]. The matter was referred to medical assessors Associate Professor Myers and Dr Rose, who each made separate assessments and entered certificates (see s 61(1)), which were conclusive evidence of the matters certified in any court proceedings or in any assessment by a Claims Assessor in respect of the claim concerned (s 61(2)).
3. Section 62(1) provides that a matter referred for assessment under Pt 3.4 may be "referred again" on one or more further occasions by a party to a medical dispute upon the ground that there was, inter alia, "additional relevant information about the injury".
4. The plaintiff sought that the matter be referred again for "assessment" on the ground that there existed the additional information. The third defendant determined that each such piece of information met the description of being "additional relevant information" for the purposes of s 62(1A). No challenge is brought to that determination. Nor is there any challenge to the certificate issued by Associate Professor Myers.
5. In substance, the third defendant refused to "refer again" the matter under s 62(1)(a) upon the basis of the additional relevant information because that information was, having regard to s 62(1A) of the Act, not such as to be capable of having a material effect on "the outcome of the previous assessment", namely Dr Rose's finding of a 50% impairment arising from three psychiatric injuries, namely, major depressive disorder, pain disorder and chronic post-traumatic stress disorder.
6. Such a determination by the third defendant is amenable to the supervision of this Court: Miles at [46] and [47] (per Hoeben CJ at CL).
7. There was a dispute as to the nature of the fourth defendant's determination under s 62(1)(b) earlier described in the judgment. However, it was common ground that, at least, he referred to the third defendant's decision in reaching his decision. In fact, he reviewed and, in my view, expressly accepted the decision of the third defendant.

Supplementary Submission of the Defendant

1. That is an appropriate juncture to consider the first defendant's supplementary submissions that the third defendant's decision was not amenable to judicial review because the plaintiff had made an application under s 62(1)(b).
2. In my view, the first defendant's contentions, in that respect, must be rejected for the following reasons: 1. As the passage from Miles (relying on Rodger v De Gelder (2011) 80 NSWLR 594; [2011] NSWCA 97 ("Rodger") at [70] and Hot Holdings at 159) demonstrates, the decision of the third defendant is justiciable. Specifically, the decision is amenable to an order in the nature of certiorari. 2. Neither a decision of the third defendant or the fourth defendant constituted, as described in Hot Holdings, the ultimate step in the relevant process (see Rodger at [113] per Macfarlan JA, with whom McColl JA agreed). Neither were final operative decisions (Miles at [49]). Rather, the third and fourth defendants served a gateway function for filtering applications for further assessment (Miller at [37]), which were justiciable in the manner described above because they affected legal rights, respectively. A determination under s 62(1)(b) has no priority over a determination made under s 62(1)(a). The fourth defendant has no supervisory role with respect to decisions of the third defendant. A determination under s 62(1)(b) does not consist of an appeal of a decision under s 62(1)(a). 3. The plaintiff was correct to contend that there is no statutory basis for the contention of the first defendant that the third defendant's decision was spent upon an application being brought under s 62(1)(b). The determinations made under s 62(1)(a) and (b) are made by officers holding different positions exercising powers under different provisions which attract different requirements (as I will discuss below under grounds 3 and 4).
3. Before turning to the particular grounds of judicial review, reference may be made to the principles governing judicial review in the present context.
4. The first defendant referred to those principles without dispute by the plaintiff. I have earlier summarised the first defendant's submission as to those principles and will not repeat them. Rather, I will supplement that discussion by reference to some passages from Miller, Hetton Bellbird Collieries and Avon Downs, referred to in that summary.

Grounds 3 and 4

1. The first defendant contended that the fourth defendant did not limit the matters he was required to consider to a review of the third defendant's decision or the application of s 62(1A).
2. I do not accept that submission. On one view of the reasons given in the fourth defendant's decision, he confined himself to a review of the third defendant's decision to determine if she was correct in the decision she had reached under s 62(1)(a). That approach springs out of the first sentence of the reasons (which expressly refers to the fourth defendant's agreement with the third defendant) and the second paragraph which appears to provide his reasons for that concurrence. On the other hand, and in any event, it is clear by the second paragraph that the decision hinges entirely upon a determination as to whether or not the plaintiff had met the requirements of s 62(1A). It is true the fourth defendant only referred to s 62 in the final sentence of his decision, but he endorsed the third defendant's decision (which ultimately turned upon the application of s 62(1A)) and made express reference to "a material effect" in the second paragraph of his decision.
3. The fourth defendant relied upon no other reasons than those discussed above in reaching his decision.
4. In approaching his determination in that way, the fourth defendant misconceived the terms of the legislative provision in which his power resided. That was an error of law.
5. The discretion residing in s 62(1)(b) is wide and limited only to the scope and purpose of the Act: Trazivuk v Motor Accidents Authority of New South Wales (2010) 57 MVR 9; [2010] NSWCA 287 at [77] (per Giles JA).
6. In Zurich Australian Insurance Ltd v Mestric (2016) 76 MVR 1; [2016] NSWSC 187 at [26], M Adams J pronounced upon some characterization of the discretion as follows: [26] There is some force in Mr Robinson's submission that these circumstances did not fall within clause 1.43 and that, in holding this clause had not been complied with, Mr Turnbull erred. However, that clause is but one example of the ways in which procedural fairness might not be afforded to a claimant. The question is one of substance, not of form. Furthermore, I am not sure that it is essential for a Claims Assessor in Mr Turnbull's position to positively find a denial of procedural fairness in its conventional sense. A decision that an assessment was or might be adversely affected by unfairness or even oversight or some other reasonable basis for doubt might well justify a reassessment. After all, the consequences of a mistaken assessment might well be serious for an insurer but catastrophic for a claimant. The process is not a judicial but an administrative one and the objects of CARS, as stated in the Guidelines include the provision of "a timely, fair and cost effective system" (cl 1.14.1), to "assess claims and disputes fairly and according to the substantial merits with as little formality and technicality as is practicable" (cl 1.14.2, emphasis added). Fairness in this context is to be considered broadly and not hedged about by legal distinctions. Mr Turnbull, in substance, thought that Dr Fearnside's conclusion was not fair or, at least, had not been fairly arrived at because of the omission to alert Ms Mestric to the issue of recent complaint.

Grounds 1 and 2

1. The plaintiff challenged the decision of the third defendant refusing the application by the plaintiff to refer again for medical assessment upon the basis that the third defendant was not satisfied the additional information, which was found by the third defendant to be additional relevant information for the purposes of s 62(1)(a), would be such as to be capable of having a material effect on the outcome of the previous assessment.
2. The plaintiff sought relief in the nature of certiorari, setting aside or declaring invalid the third defendant's decision in that respect.
3. Bearing in mind the nature of the relief sought, it is useful to refer to a passage from the judgment of Basten JA (with whom McColl JA agreed) in Allianz Australia Ltd v Cervantes (2012) 61 MVR 443; [2012] NSWCA 244 ("Cervantes") at [9]-[12]: [9] The exercise of the Court's supervisory jurisdiction pursuant to s 69 of the Supreme Court Act has been consistently treated as constrained by the principles governing relief available pursuant to the old prerogative writs, although those have been abolished and replaced by orders of a similar kind. As a result, it is commonplace to state that a quashing order (in the nature of certiorari) must be grounded upon jurisdictional error or error of law on the face of the record. However, these two categories speak in different tongues. Jurisdictional error is a category of error: it is not limited to errors of law in the ordinary sense of that term, but includes factual errors where the objective existence of the fact, as determined by the reviewing court, is a pre-condition to the exercise of power by the authority on which the power is conferred. In the conventional language, a quashing order may be made where a jurisdictional fact has not been established or an error of law, properly described as jurisdictional, has occurred. Thus it is not any error of law, but only those errors which are "jurisdictional" which provide a basis for relief. By contrast, the second category includes all errors of law, but only if they may be discerned from the record. As explained by Aronson, Dyer and Groves, Judicial Review of Administrative Action (2009, 4th ed) at [4.220], by reference to general law principles articulated in Craig v South Australia [1995] HCA 58; 184 CLR 163: "Henceforth, and in the absence of any legislative indication to the contrary, the record means only: (a) the documents... which initiated the impugned proceedings; (b) any pleadings; and (c) the impugned order itself." [10] In New South Wales, the record has been expanded by statute to include "the reasons expressed by the court or tribunal for its ultimate determination": s 69(4). [11] As will be seen in considering ground 1, the appellant contended that the assessor had failed to take into account a "relevant consideration", namely a medical report tendered by the appellant. In order to establish the factual basis of the contention, the appellant needed to rely upon the medical report in question. Accordingly, it submitted that it was entitled to tender that report in evidence on the judicial review application. [12] On the assumption (discussed below) that failure to refer to particular evidence can constitute a failure to take a "relevant consideration" into account, that submission may be accepted. Indeed, it was necessary for the appellant to go further in order to establish such a ground. It needed to rely upon the reasons of the assessor to demonstrate what the assessor had or had not taken into account. That it was entitled to do, in order to establish jurisdictional error, whether or not the reasons formed part of the "record". However, the material relevant to such a ground could, in the absence of a concession, include any record of submissions made to the decision-maker by the applicant for judicial review. That extra material may be necessary because, unless the party seeking judicial review can establish that the material was in fact relied upon for a particular purpose, there can be no legitimate complaint that the decision-maker failed to take it into account. It follows that the submissions, or at least the relevant parts thereof, before the decision-maker could be relevant and admissible as evidence before the reviewing court.

Futility

1. Even if Dr Rose's assessment as to major depressive disorder were to remain unaltered, if the fourth defendant (or third defendant) were to refer again for medical assessment based on the aforementioned additional information, bearing in mind the above considerations, the first defendant has not demonstrated that any such further assessment would be useless or inefficacious. A re-assessment which eliminated, for example, the pain disorder diagnosis would be significant.
2. In any event, the role of a certificate arising from any further medical assessment may not merely establish whether the 10% threshold is met. It is also conclusive of the matters certified pursuant to s 61(2) of the Act. If a further certificate were to reduce the percentage of impairment because a condition is no longer found to result from the motor vehicle accident but still leaves the first defendant above the threshold this is of some utility because the reduction of scope for court proceedings or assessment by a Claims Assessor.

Conclusion

1. The plaintiff has established grounds 2, 3 and 4 as expressed in the amended summons. The decision of the third defendant and the decision of the fourth defendant should be quashed. The matter will be remitted to a Proper Officer for consideration under s 62(1)(a) of the Act but no remitter will be made to the Claims Assessor. If required, any further application may be then made under s 62(1)(b) of the Act by the plaintiff in due course.
2. Costs shall be reserved.
3. The plaintiff shall bring in short minutes of order reflecting this judgment. In the event there is an agreement as to costs, that agreement may be reflected in the short minutes of order.

ORDERS

1. The Court makes the following orders: 1. The plaintiff shall bring in short minutes of order reflecting this judgment within 7 days of the publication of this judgment. 2. Costs reserved, subject to any agreement as to costs.

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: 03 May 2019