[2012] NSWCA 244
Avon Downs Pty Ltd v Federal Commissioner of Taxation (1949) 78 CLR 353
23 ALJR 322
[1949] ALR 792
Commissioner of Taxation of the Commonwealth of Australia v Futuris Corporation Ltd (2008) 237 CLR 146
247 ALR 605
Source
Original judgment source is linked above.
Catchwords
[2012] NSWCA 244
Avon Downs Pty Ltd v Federal Commissioner of Taxation (1949) 78 CLR 35323 ALJR 322[1949] ALR 792
Commissioner of Taxation of the Commonwealth of Australia v Futuris Corporation Ltd (2008) 237 CLR 146247 ALR 60582 ALJR 1177[2008] HCA 32
Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 197 ALR 38977 ALJR 1088[2003] HCA 26
Henderson v QBE Insurance (Australia) Ltd (2013) 66 MVR 69[2013] NSWCA 480
Hot Holdings Pty Ltd v Creasy (1996) 185 CLR 149134 ALR 46970 ALJR 286[1996] HCA 44
Insurance Australia Ltd t/as NRMA Insurance v Parisi [2014] NSWSC 1248
Miles v Motor Accidents Authority of NSW (2013) 84 NSWLR 632[2013] NSWSC 927
Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24[1986] HCA 40
Minister for Immigration and Citizenship v Li (2013) 249 CLR 332[2013] HCA 18
Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611[2010] HCA 16
QBE Insurance (Australia) Ltd v Miller (2013) 67 MVR 322
[2013] NSWCA 442
Re Minister for Immigration and Multicultural Affairs
Ex parte Miah (2001) 206 CLR 57
[2001] HCA 22
Reece v Webber (2011) 192 FCR 254
[2011] FCAFC 33
Rodger v De Gelder (2011) 80 NSWLR 594
[2011] NSWCA 97
The Queen v Connell
Ex parte Hetton Bellbird Collieries Ltd (1944) 69 CLR 407
18 ALJR 205
[1944] HCA 42
Trazivuk v Motor Accidents Authority of New South Wales (2010) 57 MVR 9
[2010] NSWCA 287
Wingfoot Australia Partners Pty Ltd v Kocak (2013) 252 CLR 480
[2013] HCA 43
Zurich Australian Insurance Ltd v Mestric (2016) 76 MVR 1
Judgment (39 paragraphs)
[1]
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)
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").
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.
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).
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.
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.
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.
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.
The first defendant's physical injuries were assessed by Associate Professor Myers. He issued a Certificate on 15 June 2016.
The first defendant's claim as to psychiatric injuries was referred for assessment by Dr Rose. He issued a Certificate on 26 July 2016.
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.
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").
Reply submissions were made by the first defendant on 22 December 2017.
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").
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").
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").
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.
[4]
JUDICIAL REVIEW
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.
[5]
Relief claimed as to costs and formal orders
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.
[6]
Grounds for judicial review
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.
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.
[7]
FACTUAL BACKGROUND
There was no dispute as to the factual background or the receipt of the material discussed below in the determination of the summons.
[8]
The Certificate of Associate Professor Myers
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.
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".
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.
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.
[9]
The Certificate of Dr Rose
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.]
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.
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.
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.
…
[10]
Report of Dr Mitchell
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".
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.
[11]
Application by the Plaintiff for Further Medical Assessment
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.
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.
[12]
Reply Submissions by the First Defendant in relation to Application to the Third Defendant
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.]
[13]
The Third Defendant's Decision
As previously mentioned, the plaintiff's application for a further assessment under s 62(1)(a) was dismissed by the third defendant.
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.
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".
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.
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".
[14]
Application to the Fourth Defendant for Further Assessment of Psychiatric Injuries
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.
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.
[15]
The Fourth Defendant's Decision
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
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
[16]
LEGISLATIVE PROVISIONS
Part 3.4 of the Act concerns "Medical assessment".
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(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.
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)
Section 58(1)(d) is the applicable provision in the present proceedings.
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.
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.
[17]
SUBMISSIONS
The following is a summary of the parties' written and oral submissions, save for those earlier summarised in this judgment.
[18]
Grounds 1 and 2
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.
[19]
The additional information: Associate Professor Myers and Dr Mitchell
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.
[20]
Ms Francke
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.
Dr Rose did not have Ms Francke's clinical notes.
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.
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.
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.
[21]
Ground 3
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.
[22]
Ground 4
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.
[23]
Relief
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.
[24]
Submissions for the First Defendant
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").
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.
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.
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.
[25]
Amenability to judicial review
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).
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).
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.]
[26]
The fourth defendant's decision (grounds 3 and 4)
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).
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.
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.
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).
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.
[27]
Grounds 1 and 2
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).
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).
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].
[28]
Discretion in judicial review - futility
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].
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).
The plaintiff has not and could not establish that such an outcome might arise out of the grant of relief sought in this matter.
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.
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.
[29]
Amenable to judicial review
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.
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.
Both of the decisions of the third and fourth defendants were made under different provisions and continue to have force.
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.
[30]
Grounds 3 and 4
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).
[31]
Futility
If Associate Professor Myers' certificate was before Dr Rose, it was contended, two of three diagnoses may have disappeared.
The remaining diagnosis of post-traumatic stress disorder may well have led to a percentage of permanent impairment of less than 10%.
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.
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.
[32]
CONSIDERATION
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).
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)).
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".
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.
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.
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).
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.
[33]
Supplementary Submission of the Defendant
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).
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).
Before turning to the particular grounds of judicial review, reference may be made to the principles governing judicial review in the present context.
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.
[34]
Grounds 3 and 4
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).
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.
The fourth defendant relied upon no other reasons than those discussed above in reaching his decision.
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.
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).
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.
[35]
Grounds 1 and 2
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.
The plaintiff sought relief in the nature of certiorari, setting aside or declaring invalid the third defendant's decision in that respect.
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.
[36]
Futility
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.
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.
[37]
Conclusion
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.
Costs shall be reserved.
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.
[38]
ORDERS
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.
[39]
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
Ground 2 was entitled "The Proper Officer failed to engage with the Plaintiff's argument" and was expressed as follows:
38. In its submissions to the Proper Officer in support of its application for further medical assessment of the First Defendant's psychiatric injuries, the Plaintiff clearly articulated its argument that the certificate of Dr Myers, the report of Dr Mitchell, and the clinical notes of Ms Fran[c]ke, undermined the diagnoses and assessment of impairment made by Dr Rose.
39. In her reasons for decision, the Proper Officer does not engage with those arguments. In particular, the Proper Officer does not appear to consider the argument that the certificate of Dr Myers and, to a lesser degree, the report of Dr Mitchell, negate Dr Rose's diagnosis of Pain Disorder caused by the motor accident, and also the diagnosis of a Major Depressive Disorder.
40. Once either or both of those diagnoses are invalidated, it was impossible for the Proper Officer to conclude that the remaining diagnosis of Post-Traumatic Stress Disorder could support an assessment of greater than 10% whole person impairment arising from psychiatric injury.
41. The Proper Officer simply failed to address that argument, which amounts to legal and/or jurisdictional error on her part.
In substance, grounds 3 to 5 were as follows:
1. Ground 3: The fourth defendant's approach to the application under s 62(1)(b) was misconceived in that the fourth defendant believed his task was to determine whether there was any error in the decision of the third defendant and sought to consider the question in the light of the conditions that must be applied when a party seeks to have a matter referred for further assessment under s 62(1)(a) and (1A) of the Act.
2. Ground 4: The fourth defendant failed to exercise his discretion under s 62(1)(b) lawfully or at all. He 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 Act, dictated that the matter should, in the exercise of his discretion, be referred back to MAS for further assessment.
3. Ground 5: The fourth defendant failed to provide adequate reasons for his decision (this ground was discontinued at the hearing of the matter).
As to this part of the report, the plaintiff submitted that the first dependant had significant pre-existing symptoms and injuries in her back and neck resulting from her work in the horse industry and, in particular, falling from horses many times over her life.
This submission corresponded to Associate Professor Myers' conclusion as to diagnosis and causation in which he observed:
It is quite apparent that Mrs Ilsley had had long standing cervical spine symptoms prior to the motor vehicle accident.
It is also apparent from the documentation that she had had long standing lumbosacral spine issues prior to the motor vehicle accident.
As far as I can determine from the limited documentation available to me regarding her surgery, she has had C5/6 discectomy and possibly an anterior spinal effusion according to Dr Ghabrial's report. I have no other documentation.
…
Thus I accept that Mrs Ilsley has had a soft tissue injury to the cervical spine.
There is very little evidence to support an injury to the lumbosacral spine caused by the MVA.
Under the heading "Summary of Injuries Listed by the Parties and Caused by the Accident", Associate Professor Myers opined as follows:
The following injury WAS caused by the motor accident:
• Cervical spine - soft tissue injury
[Original emphasis.]
Under the heading "Summary of Injuries Listed by the Parties and Not Caused by the Accident", Associate Professor Myers opined as follows:
The following injury WAS NOT caused by the motor accident:
• Lumbar spine - L5 nerve injury with radiculopathy. Spasm, decreased sensation, tenderness.
[Original emphasis.]
In section 7 of the report, Associate Professor Myers made "determinations".
Associate Professor Myers made a determination as to permanent impairment in accordance with the "American Medical Association's Guides to the Evaluation of Permanent Impairment (Fourth Edition)" and the "Permanent Impairment Guidelines (1 October 2007)". As to the degree of permanent impairment, he opined that having regard to "Chapter 4 of the MAA Guidelines" concerning multilevel structural compromise including spinal fusion and intervertebral disk replacement, he considered the level of multilevel structure compromise to be at "DRE Category 4" which attracted "a 25% Whole Person Impairment".
However, the plaintiff was correct to submit that Associate Professor Myers considered that the first defendant's neck symptoms, and the need for surgery, arose wholly from the pre-existing neck injury and were not related to the motor vehicle accident. The plaintiff was also correct to submit that Associate Professor Myers found that the applicant did suffer soft tissue injury to her neck in the motor vehicle accident but the consequences of that injury were relatively minor.
Associate Professor Myers' conclusion, in that respect, was as follows:
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 Maitland Hospital but this complaint had been long standing.
I am not privy to Dr Dandie's notes - Mrs Ilsley herself is quite clear that Dr Dandie declined to operate upon her as a compensable patient.
The documentation in the medical certificate of the personal injury claim form confirms that this operation was not performed as a compensable injury from the MVA.
Other than Dr Ghabriel's notes, I have no details of the procedure. I can only assume from Dr Ghabriel's report that she did have a spinal fusion.
Dr Kleinman, in his report, deducted 8/10 of the 25% WPI as due to pre-existing degenerative change in her neck. This is not consistent with MAA methodology.
There is evidence that Mrs Ilsley had long-standing C5/6 discal problems prior to the motor vehicle accident
I have no evidence that the operation performed by Dr Dandie was for any matter related to the motor vehicle accident.
On my clinical findings alone, where she has complaints and symptoms but no other matter, she would be in a DRE category of 1.
On clinical examination, with that DRE category of 1 and with regard to causation from the motor vehicle accident, I would assess her as having a 0% Whole Person Impairment.
It is my assessment therefore that I would deduct the whole of the 25% that would be assessable if the operation was necessary due to injuries sustained in the MVA.
In the result, Associate Professor Myers found the final percentage of whole person impairment as a result of the injuries caused by the motor vehicle accident as zero.
In coming to that conclusion, Associate Professor Myers treated the surgery as relating to a pre-existing impairment and deducted the 25% that would have been awarded if the first defendant's operation was required due to injury from the motor vehicle accident. As previously mentioned this was due to his conclusion that the surgery was not required in consequence of the motor vehicle accident.
Some brief observations should be made as to the aftermath of that report:
1. The first defendant applied for a review by a Review Panel of the Certificate of Associate Professor Myers pursuant to s 63 of the MACA.
2. The first defendant's application for review was dismissed by the third defendant on 22 August 2016. The third defendant was not satisfied that there is reasonable cause to suspect that Associate Professor Myers' assessment was incorrect in a material respect.
3. There has been no further application or assessment concerning the first defendant's alleged physical injuries. The assessment of the first defendant's physical injuries is not the subject of this application for judicial review. By virtue of s 61(2) of the Act, Associate Professor Myers' medical assessment is conclusive evidence as to the matters certified in any court proceedings or any assessment by a Claims Assessor.
The plaintiff contended the first defendant's alleged symptoms arising from her physical injuries (in particular, pain) were relevant to the dispute concerning impairment, if any, caused by her alleged psychiatric injuries. The controversy surrounding that issue primarily, but not exclusively, concerned grounds 1 and 2 which shall be addressed later in this judgment.
As to pre-accident functioning, the history received from the first defendant was as follows:
Ms llsley said that she was always proud of her appearance with a need to shower daily. She drove a car and did her own shopping. She liked being independent She says that she would have friends for dinner and that she would visit them. She was overseeing a property and ensuring that the horses there were fed. However, she was always anxious about foaling. She appears to have always been somewhat anxious.
Ms Ilsley would go to movies and for meals regularly with friends and she would visit her sister in Forster. There was certainly no restrictions in travel.
Ms Ilsley was estranged from family members except for her one sister. She had no problems with concentration, persistence and pace despite being on a disability pension. She was doing volunteer work with Meals on Wheels and helping with the St Vincent's de Paul Society. She was doing up to 10 hours per week voluntary work.
Further as to the history taken from the first defendant, Dr Rose reported as to symptoms and treatment following the motor vehicle accident as follows:
Very soon after the accident Ms Ilsley became extremely anxious and depressed. She developed frequent panic attacks and she had frequent nightmares. She would often waken in a bed full of sweat. She became virtually house bound with a reluctance to do anything or even eat and it was because of this that her old family friend became her carer. She became totally dependent on her carer for her very existence. She was unable to watch movies because there might be a depiction of a motor vehicle accident and she withdrew from virtually all social activities and recreational activities. Although she drove every day before the motor accident, she has not driven since because of terror that there might be another accident and that she might be killed. She became confused. She started drinking up to one bottle of wine per day in order to try and deal with her chronic pain and in order to deal with her severe symptoms of anxiety and depression.
It is of note that despite her Catholic faith, Ms Ilsley developed intense thoughts of suicide. She said that it was only because of her faith and because of her promises to her treating doctors that she had not attempted to take her life. She became very sad and depressed with an inability to enjoy anything and no interest in anything. She felt grossly unworthy.
Ms Ilsley has been treated by Dr Kim Newnham, Psychiatrist, and by Suzanne Osel, Clinical Psychologist. Dr Newnham has treated Ms Ilsley with olanzapine and Endep as well as alprazolam but as part of her pain management Ms Ilsley has also been taking Lyrica. Unfortunately none of this treatment has had a positive effect on her very severe psychiatric symptoms. No other treatment is proposed. Ms Ilsley reports that she has to be reminded to take her tablets because of her confusion and that she now finds it helpful to use a Webster-pak.
Dr Rose then undertook a review of documentation. His first observation in summary of the relevant documentation was as follows:
I have read the reports of Dr Wellings who indicates that Ms Ilsley had a history of long standing cervical disease related to race and training accidents involving horses. He also described her as having tinnitus and severe headaches.
Dr John Prickett was treating Ms Ilsley for severe neck pain and headaches which he said had been exacerbated following the motor vehicle accident that had occurred in February 2014. However, he expressed the opinion that many of her clinical symptoms were secondary to what he described as a major mood disorder. He expressed concern about the presence of suicidal ideas. He described her as being socially isolated. He said that she had removed herself from her sisters. He talked about her having catastrophic beliefs and very poor coping strategies. He described her as being agitated during the consultation and he thought that she had major depression.
Dr Rose then made the following observations, which received attention by both parties:
… I note that in his supplementary report dated 14.01.2016, Dr Bench gave a whole person impairment of 26% with no pre-existing impairment and no treatment loading. I am in agreement with Dr Bench about the lack of pre-existing impairment because it would appear that all difficulties in previous functioning, apart from the isolation from most family members, were due to the effects of the previous neck injury and resulting vertigo and pain. I note that Ms Ilsley has always felt the odd person out and that her history of relationships was not a good one, but despite this I am not convinced that there was any evidence of pre-existing personality disorder and although Ms Ilsley did have some previous depression related to deaths in the family, I do not believe there was any assessable pre-existing psychiatric impairment.
I note the report of Prof Gabrielle dated 21.10.2015, with the further report giving a whole person impairment of 33% with a deduction of 3% for pre-existing degenerative changes.
I have read the report of A/Prof Kleinman dated 04.08.2015. I note that he says that the force of the collision lifted the vehicle sideways, pushing it over to the left hand side of the road. The vehicle was said to have come to a halt halfway into a ditch and Ms Ilsley is said to have fallen out of the vehicle. Given her pre-existing anxiety, it is not surprising that she was terrified at the time. A/Prof Kleinman believes that as a result of the accident Ms Ilsley aggravated pre-existing degenerative changes to the cervical spine and that she also sustained soft tissue injuries to the neck and back. He thought that there was a compensable 5% whole person impairment.
I have read the psychiatric report of Dr Vickery dated 06.08.2015. He notes that she had a cervical fusion in 2014 with partial relief of physical symptoms. He comments on the previous history of multifocal pain perception associated with anxiety, depression and avoidance behaviour. He said that following the motor accident she was no longer driving and she was avoiding travelling In a motor vehicle, that she was not socialising and was leaving the house only for appointments. He described her as not engaging in other recreational pursuits. He described her as having panic attacks and tending to stay in her pyjamas and being unable to organise herself. He described the presence of significantly reduced concentration. He thought that she might have an avoidant personality disorder but I am not sure that all of the criteria for a diagnosis of personality disorder would be fulfilled. I note that he made diagnoses of somatoform chronic pain disorder as well as simple situational phobic anxiety disorder but I think that the magnitude of her symptoms, the nature of them and the severity of her presentation indicates that she is suffering from post-traumatic stress disorder and major depression. I cannot agree with his assessment of pre-injury whole person impairment as I would maintain that Ms Ilsley described herself as having a number of friendships prior to the subject accident and that she was maintaining a relationship with her sister, I would suggest that apart from chronic difficulties with other members of the family and difficulties in her romantic relationships, her social function was reasonable. I agree that she was on a disability pension prior to the subject accident but I would maintain that this was not for psychiatric reasons.
[Emphasis added.]
Finally, in his conclusions as to diagnosis and causation Dr Rose stated:
I am in agreement with the diagnoses of major depressive disorder, pain disorder and chronic post-traumatic stress disorder, all of which clearly are the result of the subject accident. There is a history of pre-existing anxiety with some social avoidance and difficulty in relationships, but I could not assess the presence of pre-existing impairment as such. The severity of the subject accident was clearly such as to precipitate the post-traumatic stress disorder and major depressive disorder and to aggravate Ms Ilsley's previous complaints of pain to the extent that a pain disorder could also be diagnosed. I am in no doubt that the majority of her psychiatric symptoms are clearly the result of the subject accident.
[Emphasis added.]
Dr Rose made a determination as to permanent impairment in accordance with the "American Medical Association's Guides to the Evaluation of Permanent Impairment (Fourth Edition)" and the "Permanent Impairment Guidelines (1 October 2007)". As to the degree of permanent impairment, he assessed the "Percentage Whole Person Impairment" of the first defendant to be at 50%, as arising from the injuries sustained in the motor vehicle accident.
The plaintiff relied upon the fact that Dr Rose was not given the report of Associate Professor Myers. It contended that there was a relationship between physical symptoms and psychiatric disorders and, in particular, a disorder called a "pain disorder". It was contended that if the chronic pain was not caused by the motor vehicle accident, the pain disorder could not be caused by the motor vehicle accident. What Dr Rose was told by Ms Ilsley was that her perception was that her neck and back pain were severe, chronic and solely caused by the motor vehicle accident. It was submitted that Dr Rose did not record in his reasons any complaint by the first defendant that her neck symptoms were increased by the motor vehicle accident.
The plaintiff accepted that Dr Rose made three diagnoses but it was not possible to distinguish one from the other in terms of their contribution to the assessment of 50% whole person impairment. Dr Rose misapprehended the cause (in the sense that the psychological symptoms were caused by the motor vehicle accident) in coming to his diagnosis because he did not have, inter alia, Associate Professor Myers' report which was definitive as to physical symptoms. The diagnosis of pain disorder and "almost certainly" major depressive disorder depended on findings as to cause which were not available having regard to Associate Professor Myers' report. The post-traumatic stress disorder could stand "but what that would lead to in terms of impairment might be totally different matter altogether and probably would be".
The plaintiff submitted that, in essence, it had contended that the Certificate of Associated Professor Myers, the medical report of Dr Mitchell and clinical notes of Ms Francke met the requirements of s 62(1)(a) and (1A) because:
1. The reports as to the first defendant's pre-accident neck symptoms and, in particular, the Certificate of Associate Professor Myers, made it clear that the first defendant had significant pain in her cervical spine for some years prior to the motor vehicle accident in February 2014. Moreover, the Certificate of Associate Professor Myers had to be taken as conclusive evidence that the first defendant suffered no additional impairment in her cervical spine as a result of the motor vehicle accident in February 2014;
2. The clinical notes of Ms Francke established that the first defendant had significant psychological symptoms prior to the accident. Yet Dr Rose found that there was no pre-existing psychiatric impairment.
The third defendant then opined:
15. One of the submissions of the applicant is that Assessor Rose formed the opinion that the claimant's chronic pain and pain disorder were related to the subject accident. However, on page 2 of the report, Assessor [Rose]records:
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.
16. This sentence, along with the various other references throughout the report to the claimant's pre-existing neck injuries indicates to me that Assessor Rose was well aware of the claimant's pre-accident conditions. Further, in making his conclusion on diagnosis and causation Assessor Rose records the following (page 7):
I am in agreement with the diagnoses of major depressive disorder, pain disorder and chronic post-traumatic stress disorder, all of which clearly are the result of the subject accident. There is a history of pre-existing anxiety with some social avoidance and difficulty in relationships, but I could not assess the presence of pre-existing impairment as such. The severity of the subject accident was clearly such as to precipitate the post-traumatic stress disorder and major depressive disorder and to aggravate Ms Ilsley's previous complaints of pain to the extent that a pain disorder could also be diagnosed. I am in no doubt that the majority of her psychiatric symptoms are clearly the result of the subject accident.
17. As seen in the above reasoning, Assessor Rose found that the previous complaints of pain had been aggravated to the extent that he could diagnose a pain disorder. Assessor Rose has found that all of the psychiatric diagnoses he made were caused by the accident. I am satisfied that Assessor Rose was aware of the claimant's pre-accident injuries and took them into account when making his assessment. Accordingly, I am not satisfied that the additional material relied on would be such as to be capable of having a material effect on the outcome of the previous assessment.
As to the medical report of Dr Mitchell, the third defendant found that report was also "additional relevant information about the injury" but, again, not capable of having a material effect on the outcome of the previous assessment. The third defendant's findings, in that respect, are extracted below:
22. While I may be satisfied that the report of Dr Mitchell is additional relevant information about the injury, I am not satisfied that it is such as to be capable of having a material effect on the outcome of the previous assessment. The applicant has submitted that the report provides information about the claimant denying pre-existing issues with the neck and back and that the claimant did not describe panic attacks. However, as described in my above reasons, Assessor Rose was well aware of the claimant's pre-existing injuries and has acknowledged them throughout his reasoning.
23. While the claimant may not have described panic attacks to Dr Mitchell, there is other objective documentation from psychiatrists documenting those symptoms. I am not satisfied that the claimant not reporting panic attacks to an Occupational Physician would be such as to be capable of having a material effect on the outcome of the previous assessment. Nor am I satisfied that the presence of pre-existing injury, which was considered by Assessor Rose, would be such as to be capable of having a material effect on the outcome of the previous assessment.
As to Ms Francke, the third defendant again found that Ms Francke's clinical notes constituted "additional relevant information about the injury". As to those notes she found:
68. Subsequent to the application and reply for further assessment, the applicant has lodged additional documentation from Laura Fran[c]ke, psychologist, produced under authority. The applicant states that the documents produced by Ms Fran[c]ke include records in relation to the claimant's pre-accident psychological condition and treatment and are relevant to the assessment of the claimant's alleged psychological/psychiatric permanent impairment arising from the subject accident.
69. The respondent did not consent to the records being included as late additional documents but provided no further submissions.
70. While I may be satisfied that the notes of Laura Fran[c]ke are additional relevant information about the injury, I am not satisfied that they are such as to be capable of having a material effect on the outcome of the previous assessment. The applicant appears to be relying on the notes in order to establish that there is evidence of a pre-existing psychiatric injury for which a MAS Assessor needs to provide an apportionment of whole person impairment.
71. The assessment of pre-existing injuries is guided by clause 1.33 of the Permanent Impairment Guidelines which states:
The evaluation of permanent impairment may be complicated by the presence of an impairment in the same region that existed prior to the relevant motor accident. If there is objective evidence of a pre-existing injury at the time of the accident, then its value should be calculated and subtracted from the current whole person impairment value. If there is no objective evidence of pre-existing symptomatic permanent impairment, then its possible presence should be ignored.
72. I am not satisfied that the notes of Laura Fran[c]ke are objective evidence of a symptomatic impairment at the time of the accident. The notes are dated from 2010 to 2011, the motor vehicle accident occurred in 2014, some three years later. I am not satisfied that the information would make a material difference to the outcome of the previous assessment as the information pre-dates the motor accident by such a length of time that It could not be used in accordance with the Permanent Impairment Guidelines, to make an apportionment for a pre-existing impairment
[Original emphasis.]
The matter was then allocated by SIRA to the fourth defendant for assessment of the first defendant's damages.
Section 62 is in the following terms:
62 Referral of matter for further medical assessment
(1) A matter referred for assessment under this Part may be referred again on one or more further occasions in accordance with this Part:
(a) by any party to the medical dispute, but only on the grounds of the deterioration of the injury or additional relevant information about the injury, or
(b) by a court or claims assessor.
(1A) A matter may not be referred again for assessment by a party to the medical dispute on the grounds of deterioration of the injury or additional relevant information about the injury unless the deterioration or additional information is such as to be capable of having a material effect on the outcome of the previous assessment.
(1B) Referral of a matter under this section is to be by referral to the member of staff of the Authority who is designated by the Authority for the purpose (in this Part referred to as the proper officer of the Authority).
(2) A certificate as to a matter referred again for assessment prevails over any previous certificate as to the matter to the extent of any inconsistency.
Section 63(1) provides as follows:
63 Review of medical assessment by review panel
(1) A party to a medical dispute may apply to the proper officer of the Authority to refer a medical assessment under this Part by a single medical assessor to a review panel of medical assessors for review.
As to ground 2, the plaintiff made the following submission:
49. In its submissions to the [third defendant] in support of its application for further medical assessment of the First Defendant's psychiatric injuries, the Plaintiff clearly articulated its argument that the certificate of [Associate Professor] Myers, the report of Dr Mitchell, and the clinical notes of Ms [Francke], undermined the diagnoses and assessment of impairment made by Dr Rose.
50. In her reasons for decision, the [third defendant] does not engage with those arguments. In particular, the [third defendant] does not appear to consider the argument that the certificate of [Associate Professor] Myers and, to a lesser degree, the report of Dr Mitchell, negate Dr Rose's diagnosis of Pain Disorder caused by the motor accident, and also the diagnosis of a Major Depressive Disorder.
51. Once either or both of those diagnoses are invalidated, it was impossible for the [third defendant] to conclude that the remaining diagnosis of Post-Traumatic Stress Disorder could support an assessment of greater than 10% whole person impairment arising from psychiatric injury.
52. The [third defendant] simply failed to address that argument, which amounts to legal and/or jurisdictional error on her part.
In oral submissions, Mr K Rewell SC for the plaintiff expanded upon those submissions as follows:
1. The third defendant's reasoning for finding the additional information, which had been found to be additional relevant information for the purposes of s 62(1)(a), was not such as to be capable of having a material effect on the outcome of the previous assessment of Dr Rose is to be primarily found in paragraph 17 of the third defendant's decision.
2. Whilst those conclusions are "factually correct", Dr Rose had found the previous complaints of pain had been aggravated to the extent that he diagnosed pain disorder. It was also true, as found by the third defendant, that Dr Rose had found that "all of the psychiatric diagnoses he made were caused by the accident" as was the finding that Dr Rose was aware of the first defendant's pre-accident injuries "and took them into account".
3. However, the third defendant missed the "whole point" the plaintiff was advancing and did not engage with the plaintiff's argument.
4. The first defendant did have neck and back symptoms prior to the motor vehicle accident but the plaintiff's contention was that, save for a soft tissue neck injury, they were the same after the motor vehicle accident.
5. Dr Rose came to the view he did because he was told her neck symptoms were made worse after the accident.
6. Dr Rose wrongly assumed that the motor accident caused an increase in the plaintiff's neck pain and that the first defendant's psychiatric symptoms, in that respect, were caused by the motor vehicle accident. This failure occurred because Dr Rose did not have Associate Professor Myers' certificate. Associate Professor Myers certified that the defendant's neck injuries were limited to soft tissue injury (her surgery was unrelated to the motor vehicle accident) and the back injury did not derive from the motor vehicle accident.
7. As Associate Professor Myers did not support any relationship between ongoing symptoms (including pain) in the neck and the motor vehicle accident, the diagnosis by Dr Rose of pain disorder and "almost certainly" major depressive disorder were wrong.
8. The Certificate of Associate Professor 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.
9. The third defendant examined the report of Associate Professor Myers but she considered it sufficient, in order to determine the application, to find that Dr Rose knew there were pre-existing "physical symptoms" whereas the plaintiff contended to her that all post-accident symptoms were attributable to "pre-accident conditions". The chronic pain which led to the diagnosis of pain disorder was only pre-accident chronic pain.
10. Senior counsel further contended:
What we said was that [Dr Rose] thought those conditions were made worse by the motor accident and Professor Myers found that they weren't. That was the point in one sentence and your Honour won't find her address that point at all. She keeps repeating that Assessor Rose knew the claimant, Ms Ilsley, had pre-existing neck and back pain. She knew that he knew that so where is the problem. Well, the problem was that he thought the symptoms got worse because of the accident and your Honour will find that Ms Edwards makes exactly the same comment about Doctor Mitchell and about everybody else whose documents she had. She just couldn't see the point we were making at all so that, your Honour, is how we formulate the matter. What we say is that she never addressed or engaged with the argument that we made at all.
1. The findings by Dr Rose that the pre-existing neck injuries were aggravated by the motor vehicle accident vis-a-vis a diagnosis of pain disorder were unavailable in the light of Associate Professor Myers' certificate which was relevant additional information because Dr Rose did not have it and it was conclusive evidence as to the existence of any additional physical symptoms.
2. The diagnoses of pain disorder and depression disorder were severely undermined by these factors and, therefore, their elimination or reduction must result in a significant change in the assessment of permanent impairment.
3. The plaintiff made the following submission as to the remaining diagnosis:
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.
In that light it was submitted that the third defendant had erred in concluding that the Certificate of Associate Professor Myers and the report of Dr Mitchell were not capable of having a material effect on the outcome of Dr Rose's assessment.
It was submitted that the fourth defendant's decision was a new decision based upon the same provision of the Act and with reliance upon the same material. That decision, it was contended, is justiciable under s 69 of the Supreme Court Act 1970 (NSW) but not the third defendant's decision.
Thus, it was contended that it is not open to the plaintiff to seek the Court quash two decisions and then remit in both cases.
Nonetheless, it was contended, if the third defendant's decision is bad at law then so too must the fourth defendant's decision be bad in law. The "mentioning" of the third defendant's decision in the fourth defendant's decision must result in its incorporation in the fourth defendant's decision and, in that event, vitiated that decision as well.
The first defendant submitted, as to the application of those principles, as follows:
5. The only relevant submissions of the plaintiff that relate to "material effect" (the test for section 62(1)(a) as set out in Miller) predominantly relate to the physically injurious effects (referring to the previous medical examinations of Dr Myers and Dr Mitchell (plaintiffs submissions ("PS") at [25(a)]).
6. While the argument might have a factual basis (which is not conceded), the actuality of the determination by medical assessor Rose, was of the presence (as at the date of his medical examination under section 16 and 60 of the Act) of a primary psychiatric injury.
7. The presence or absence of a physical impairment had no role to play in this assessment (section 133 of the Act).
8. Accordingly, much of the plaintiff's case here is wholly misconceived.
9. In so far as it is asserted that the first defendant's pain disorder could be (somehow) disentangled from the primary psychiatric injury of Post Traumatic Stress Disorder, on the plaintiffs own submission (at [44]), this may be "guesswork''.
10. How that entitles the plaintiff to now seek review, either in the statutory framework, or at common law, is not elucidated.
11. As in Miller (where the proper officer there had reports of Dr Potter, that predated the motor vehicle accident), both Sarah Edwards (as proper officer) and Peter Harvey (as the claims assessor) made reference to the "relevant" submitted additional material and the submissions, and both found them as not having a "material effect" on the outcome of the assessment of medical assessor Rose (who had found there was 50% whole person impairment suffered by the first defendant as a result of the accident).
12. There is no error of law in those assessments of the contents of the application before them.
It was also submitted there is a distinction between "medical" and "psychological" assessments under the Act. There can be no aggregation of the two elements.
Associate Professor Myers is a medical assessor. He is not able to diagnose a pain disorder, which is a psychiatric condition. That is the province of Dr Rose, who diagnosed that disorder and major depressive and post-traumatic stress disorders.
In Wingfoot Australia Partners Pty Ltd v Kocak (2013) 252 CLR 480; [2013] HCA 43 ("Wingfoot") at [44], [55] and [56] it was found that a medical assessor must make his/her own assessment. Dr Rose did not have Associate Professor Myers' report but that made no difference because he made his assessment based on his own examination, the history he took and the documentation he examined which revealed many pre-existing injuries.
Dr Rose's report showed that he reviewed pre-existing physical and mental injuries. The plaintiff does not identify how the receipt of the report of Associate Professor Myers (or Dr Mitchell) could alter the conclusions Dr Rose reached on that foundation.
As for Ms Francke's clinical notes, that material only shows that problems suffered by the first defendant existed three years prior to the motor vehicle accident.
Returning then to the third defendant's decision, I agree with the first defendant that the correct legal test in the context of judicial review proceedings as to the third defendant's powers under 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 ss 62(1) and (1A): Miller at [35]; Henderson v QBE Insurance (Australia) Ltd (2013) 66 MVR 69; [2013] NSWCA 480 at [51] (per Beazley P); Insurance Australia Ltd t/as NRMA Insurance v Parisi [2014] NSWSC 1248 at [37], [38] and [44] (per Campbell J). There was no dispute as to the available grounds for judicial review in that context (as set out at [110] above) and they may be considered broadly appropriate.
In Miller, Basten JA stated, after referring to the nature of a decision made under s 62(1)(a) and (1A), the standard of judicial review was as follows (at [36] and [56]):
[36] Once it is accepted that the characterisation of the information is a matter to be considered in the first instance by the proper officer and not one to be determined by this court afresh on a judicial review application, the review proceedings are limited to determining whether the proper officer's opinion has been properly formed according to law: Buck v Bavone (1976) 135 CLR 110 at 118-19; per Gibbs J; D'Amore at [220]. The critical question is thus "whether the determination was irrational, illogical and not based on findings or inferences of fact supported by logical grounds": Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 207 ALR 12; 78 ALD 224; 78 ALJR 992; [2004] HCA 32 at [38]; per Gummow and Hayne JJ. Further, as explained by Latham CJ in R v Connell; Ex parte Hetton Bellbird Collieries Ltd (No 2) (1944) 69 CLR 407 at 432:
"If the opinion which was in fact formed was reached by taking into account irrelevant considerations or by otherwise misconstruing the terms of the relevant legislation, then it must be held that the opinion required has not been formed. In that event the basis for the exercise of power is absent, just as if it were shown that the opinion was arbitrary, capricious, irrational, or not bona fide."
…
[56] QBE accepted that each of the characteristics of information as "additional", "relevant" and "capable of having a material effect" had to be satisfied: on the basis that relevance was not in issue, the proper officer found that the first and third characteristics were not satisfied. It is sufficient for present purposes to uphold the assessment of the primary judge that the latter finding could not be described as manifestly unreasonable or irrational and did not otherwise demonstrate error of law.
In Hetton Bellbird Collieries, the Court considered the operation of the National Security (Economic Organisation) Regulations which provided that an Industrial Authority may alter a rate of remuneration "with the approval of the Minister, if the Industrial Authority, is satisfied that the rates of remuneration… are anomalous". It was held that an Industrial Authority is not "satisfied" within the meaning of the Regulation, so as to found its authority to alter existing notes, if its opinion is based upon a misconception of the Regulation.
Latham CJ, in that respect, observed (at 432):
It is therefore well settled that if a statute provides that a power may be exercised if a person is of a particular opinion, such a provision does not mean that the person may act upon such an opinion if it is shown that he has misunderstood the nature of the opinion which he is to form. Unless such a rule were applied legislation of this character would mean that the person concerned had an absolutely uncontrolled and unlimited discretion with respect to the extent of his jurisdiction and could make orders which had no relation to the matters with which he was authorized to deal. It should be emphasized that the application of the principle now under discussion does not mean that the court substitutes its opinion for the opinion of the person or authority in question. What the court does do is to inquire whether the opinion required by the relevant legislative provision has really been formed. If the opinion which was in fact formed was reached by taking into account irrelevant considerations or by otherwise misconstruing the terms of the relevant legislation, then it must be held that the opinion required has not been formed. In that event the basis for the exercise of power is absent, just as if it were shown that the opinion was arbitrary, capricious, irrational, or not bona fide.
Reference was also made to the judgment of Dixon J in Avon Downs, which was extracted by Crennan and Bell JJ in SZMDS at [104] as follows:
[104] In Avon Downs Pty Ltd v Federal Commissioner of Taxation Dixon J had said of a decision maker empowered to act when "satisfied" of a state of affairs:
"If he does not address himself to the question which the [statute] formulates, if his conclusion is affected by some mistake of law, if he takes some extraneous reason into consideration or excludes from consideration some factor which should affect his determination, on any of these grounds his conclusion is liable to review … If the result appears to be unreasonable on the supposition that he addressed himself to the right question, correctly applied the rules of law and took into account all the relevant considerations and no irrelevant considerations, then it may be a proper inference that it is a false supposition. It is not necessary that you should be sure of the precise particular in which he has gone wrong. It is enough that you can see that in some way he must have failed in the discharge of his exact function according to law."
[Footnotes omitted.]
The fourth defendant did not have to be satisfied that the material relied upon by a party to a medical dispute constituted additional relevant information about an injury for the purposes of s 62(1)(a) or is capable of having a material effect upon the outcome of a medical assessment in order to refer again the matter for medical assessment. He was certainly not confined to those considerations. Section 62(1A)) operates upon the exercise of power under s 62(1)(a) and not s 62(1)(b) given that the operation of the provision is confined to circumstances where a party to a medical dispute relies upon the grounds for a further referral under s 62(1)(a).
The first defendant contended that, if the fourth defendant had confined his attention in the manner contended for by the plaintiff, that course had only been taken due to the nature of the application brought by the plaintiff. There are two difficulties with that submission.
First, it does not fairly reflect the submissions of the plaintiff to the fourth defendant; those submissions traversed a broader subject matter as earlier extracted in this judgment (as will be later discussed in this judgment).
Secondly, the fourth defendant did not express himself as being confined to the four walls of the plaintiff's submissions (if they were limited in the manner suggested by the first defendant) but confined himself to the subject areas to which I have referred and, in doing so applied the wrong test and asked himself the wrong question; namely, whether the application for a further medical assessment should or should not have been granted under s 62(1)(a) and (1A), or in accordance with the requirements of those provisions.
The fourth defendant was required to consider, inter alia, whether as a matter of fairness to the parties, and having regard to the scope and purpose of the Act, he should refer again the matter for medical assessment based upon the additional information.
It follows that grounds 3 and 4 should be accepted.
The implication of that finding for the disposition of the summons should await the consideration of the remaining grounds and the question of futility. In the former respect, I note that the first defendant conceded that if error was found in the third defendant's discussion then that must necessarily vitiate the fourth defendant's decision. I will find that the plaintiff has established ground 2. In the latter respect, it may be observed that the Court has a discretion to refuse certiorari where the grant of such relief would be useless (or nearly so) or inefficacious (Mark Arson, Matthew Groves and Greg Weeks, Judicial Review of Administrative Action and Government Liability (Thomson Reuters, 6th ed, 2016) at [17.140]. It must further be borne in mind that the orders in the nature of certiorari sought are directed to a remitter to the third and fourth defendants so they may determine whether to refer the matter again for medical assessment based upon the additional information. The first defendant bears the onus of demonstrating futility.
There was no dispute in this matter as to the receipt of the reasons for the third defendant's decision with respect to grounds 1 and 2 (and the fourth defendant's decision, in the case of grounds 3 and 4); the additional information; or the submissions of the plaintiff and first defendant to the third and fourth defendants, respectively. Some brief further reference may nonetheless be made as to the tender of that material.
The reasons of the third defendant (and the fourth defendant in the case of grounds 3 and 4) were available. Reliance was placed upon them in order to demonstrate what the third defendant (and the fourth defendant in the case of grounds 3 and 4) had or had not taken into account. No attention was directed by the parties to s 69(4) of the Supreme Court Act (which was applicable) but it may be mentioned that the plaintiff also relied on jurisdictional error with respect to ground 2.
The additional information was available with respect to grounds 1 and 2 insofar as it was adduced to provide a factual basis for a pleading that there was a failure to take into account a relevant consideration.
The submissions of the parties were available to establish the factual foundation for the plaintiff's contention that the issues raised for judicial review had been agitated with the third defendant (particularly in the case of grounds 3 and 4, where the plaintiff made contentions not only directed to the significance of the additional information but as to the need to have regard to the broader question of fairness.
Having regard to the manner in which the plaintiff prosecuted grounds 1 and 2, it is appropriate to briefly refer to the relevant principles governing reliance upon a failure to take into account a "relevant consideration" ground in judicial review.
Reference should be firstly made to the judgment of Mason J in Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24; [1986] HCA 40 as to the ground of failure to take into account a relevant consideration. His Honour's judgment, in that respect, was as follows (at 39-41):
The failure of a decision-maker to take into account a relevant consideration in the making of an administrative decision is one instance of an abuse of discretion entitling a party with sufficient standing to seek judicial review of ultra vires administrative action. That ground now appears in s. 5(2)(b) of the A.D.(J.R.) Act which, in this regard, is substantially declaratory of the common law. Together with the related ground of taking into account irrelevant considerations, it has been discussed in a number of decided cases, which have established the following propositions:
(a) The ground of failure to take into account a relevant consideration can only be made out if a decision-maker fails to take into account a consideration which he is bound to take into account in making that decision: Sean Investments Pty. Ltd. v. MacKellar; CREEDNZ Inc. v. Governor-General; Ashby v. Minister of Immigration. The statement of Lord Greene M.R. in Associated Provincial Picture Houses Ltd. v. Wednesbury Corporation, that a decision-maker must take into account those matters which he "ought to have regard to" should not be understood in any different sense in view of his Lordship's statement on the following page that a person entrusted with a discretion "must call his own attention to the matters which he is bound to consider".
(b) What factors a decision-maker is bound to consider in making the decision is determined by construction of the statute conferring the discretion. If the statute expressly states the considerations to be taken into account, it will often be necessary for the court to decide whether those enumerated factors are exhaustive or merely inclusive. If the relevant factors - and in this context I use this expression to refer to the factors which the decision-maker is bound to consider - are not expressly stated, they must be determined by implication from the subject-matter, scope and purpose of the Act. In the context of judicial review on the ground of taking into account irrelevant considerations, this Court has held that, where a statute confers a discretion which in its terms is unconfined, the factors that may be taken into account in the exercise of the discretion are similarly unconfined, except in so far as there may be found in the subject-matter, scope and purpose of the statute some implied limitation on the factors to which the decision-maker may legitimately have regard: see Reg. v. Australian Broadcasting Tribunal; Ex parte 2HD Pty. Ltd. adopting the earlier formulations of Dixon J. in Swan Hill Corporation v. Bradbury, and Water Conservation and Irrigation Commission (N.S.W) v. Browning. By analogy, where the ground of review is that a relevant consideration has not been taken into account and the discretion is unconfined by the terms of the statute, the court will not find that the decision-maker is bound to take a particular matter into account unless an implication that he is bound to do so is to be found in the subject-matter, scope and purpose of the Act.
(c) Not every consideration that a decision-maker is bound to take into account but fails to take into account will justify the court setting aside the impugned decision and ordering that the discretion be re-exercised according to law. A factor might be so insignificant that the failure to take it into account could not have materially affected the decision: see, e.g., the various expressions in Baldwin & Francis Ltd. v. Patents Appeal Tribunal; Hanks v. Minister of Housing and Local Government; Reg. v_ Chief Registrar of Friendly Societies; Ex parte New Cross Building Society. A similar principle has been enunciated in cases where regard has been had to irrelevant considerations in the making of an administrative decision: Reg. v. Bishop of London; Reg. v. Rochdale Metropolitan Borough Council; Ex parte Cromer Ring Mill Ltd..
(d) The limited role of a court reviewing the exercise of an administrative discretion must constantly be borne in mind. It is not the function of the court to substitute its own decision for that of the administrator by exercising a discretion which the legislature has vested in the administrator. Its role is to set limits on the exercise of that discretion, and a decision made within those boundaries cannot be impugned: Wednesbury Corporation.
Footnotes omitted]
Attention should also be directed to Cervantes. That matter concerned, inter alia, a contention that there was an omission to make reference to a statement of a medical practitioner. The defendant relied upon [15]-[16] and [19]-[22] of the judgment. I propose to extract, as applicable, [15]-[17] and also [19]-[22]:
[15] Because the precise nature of the ground was not adequately spelled out, the submissions tended to elide a number of key concepts. First, to describe evidence as "relevant" to the case of one party is not to identify a "relevant consideration" for judicial review purposes. All evidence is (or should be) "relevant" in the broad sense identified in s 55 of the Evidence Act 1995 (NSW), namely that, if accepted, it could rationally affect, directly or indirectly, the assessment of the probability of the existence of a fact in issue. (It is of no consequence for present purposes that the Evidence Act did not apply to the assessment in its own terms and was expressly not adopted: Motor Accident Authority of NSW Claims Assessment Guidelines, as amended on 1 October 2009, ("the Guidelines") par 16.1.) The reference to a "relevant consideration" in judicial review is a reference to a factor which, by law, the decision-maker is bound to take into account: Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; 162 CLR 24 at 39 (Mason J). This ground required that the appellant identify the legal obligation on which it relied to identify what were mandatory factors to be taken into account for the purposes of the assessment.
[16] Secondly, the obligation is, as stated in Peko-Wallsend, to take a consideration "into account". How it is to be taken into account and what weight it is to be accorded in all the circumstances are matters within the authority of the decision-maker. Thus, assuming for present purposes that the assessor was bound to take into account the particular statement set out above, he could do so by dismissing it, by giving it little weight, or by giving it decisive weight.
[17] Thirdly, the appellant needed to establish on the balance of probabilities that the assessor did not take the identified material into account. Given that, in the course of his reasons, the assessor referred expressly to Dr Bodel's report of 21 November 2008 in summarising the medical evidence and stated expressly that he accepted "the opinions and diagnoses of Dr James Bodel", the appellant faced an apparently insuperable obstacle in this respect. The mere fact that the specific statement relied upon by the appellant was not identified by the assessor in his reasons was, of itself, neutral. The assessor, as noted above, had more than 600 pages of material before him and could not possibly be expected to refer to the whole of it in reasons which were permissibly brief.
…
[19] Although this ground must be dismissed for the reasons given above, it is desirable to return to the first step in the reasoning, namely identifying the legal obligation to take particular evidence into account. No case was referred to which supported a proposition expressed in these terms. In Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26; 77 ALJR 1088, at [24], Gummow and Callinan JJ stated:
"To fail to respond to a substantial, clearly articulated argument relying upon established facts was at least to fail to accord Mr Dranichnikov natural justice."
[20] A similar point was made by Kirby J at [86] referring to a passage in the judgment of Gaudron J in Re Minister for Immigration and Multicultural Affairs; Ex parte Miah [2001] HCA 22; 206 CLR 57 at [81] where, after noting that it was not always easy to distinguish an error of law which is jurisdictional from one that is not, her Honour continued:
"However, the present case is, in my view, a clear case of constructive failure to exercise jurisdiction. That is because the delegate failed to consider the substance of Mr Miah's application and could only have failed to do so because he misunderstood what is involved in the Convention definition of 'refugee'."
[21] Two propositions may be drawn from these statements. First, although not articulated in these terms, a constructive failure to exercise jurisdiction may arise because the statutory conferral of power has not been exercised according to its terms. Thus, in the present case, s 94 of the Compensation Act requires that a claims assessor "is, in respect of a claim referred to the assessor for assessment, to make an assessment of ... the amount of damages": s 94(1)(b). It is, therefore, mandatory that the assessor address the claim and carry out the statutory function.
[22] The second point is that neither Dranichnikov nor Miah went so far as to imply an obligation to consider every piece of evidence presented. Further, to refer to a report, but not to a particular passage in the report, may indicate an implicit preference for some other material which (in the absence of any no evidence ground) must be accepted as existing to support a particular conclusion. Such a course cannot constitute a failure to take into account a relevant consideration nor a failure to respond to a substantial argument: Minister for Immigration and Citizenship v SZJSS [2010] HCA 48; 243 CLR 164 at [35].
As noted in Cervantes, judicial review predicated upon a failure to take into account a relevant consideration required the plaintiff to state the legal obligation on which it relied in order to identify what were mandatory factors to be taken into account for that purpose.
The discussion of that issue can momentarily await discussion whilst consideration is given to what, in substance, the plaintiff contended was the "relevant consideration", namely, the third defendant failed to take into account and whether such consideration was or was not, in fact, taken into account by the third defendant as well as whether the failure to take into account a relevant consideration ground, in substance raised by the plaintiff, was amenable to judicial review in the manner proposed by the defendant (this latter discussion will merge with the discussion of the nature of legal obligations).
It was not suggested by the plaintiff that the third defendant's approach to the question before her constituted an error of law insofar as she found that the matter may be "referred again" for further assessment as the plaintiff had produced further additional relevant information (per s 62(1)(a)) but that it was not appropriate to do so, having regard to s 61(1A), because the additional information was not such as to be capable of having a material effect on the outcome of the previous assessment of Dr Rose.
Nor was it submitted that the third defendant failed to expressly refer to the Certificate of Associate Professor Myers and the report of Dr Mitchell or properly identify their conclusions.
It is apparent that the third defendant recognised that Associate Professor Myers found not only that the first defendant had "long standing" cervical and lumbosacral symptoms prior to the motor vehicle accident but that he accepted the injuries sustained by the first defendant in the motor vehicle accident were confined to soft tissue injuries to the neck and the surgery to the first defendant's neck by Dr Dandie was unrelated to the motor vehicle accident. The third defendant identified that Dr Mitchell considered there was "little direct relationship between the first defendant's current reported physical symptoms" and the motor vehicle accident. This was a recognition that Associate Professor Myers and Dr Mitchell had found the first defendant's neck symptoms were unrelated to the motor vehicle accident.
Further, it was not suggested that the third defendant had failed, in that respect, to take into account that Dr Rose had found the previous complaints had been aggravated by the motor vehicle accident to the extent that Dr Rose diagnosed a pain disorder. The third defendant recognised that "all of the psychiatric diagnoses [Dr Rose] made were caused by the accident".
Rather, it appears that, when the plaintiff referred to the third defendant failing to have "regard to" a relevant matter or, in its written submissions (at para 45), failing to take "this consideration into account", the plaintiff was contending that the third defendant had failed to take into account that the conclusions of, in particular, Associate Professor Myers, were evidence (conclusive in the case of the Certificate of Associate Professor Myers) that the first defendant's neck injuries were unrelated to the motor vehicle accident and, in the result, such determination "undermined" Dr Rose's diagnosis of a pain disorder. In this light, it was contended Dr Rose wrongly made a finding that the motor vehicle accident aggravated the defendant's pain and required a diagnosis of a pain disorder. The same considerations "almost certainly", it was contended, affected the diagnosis of major depressive disorder.
The defendant contended that the critical factor relied upon by the third defendant in reaching her decision (see para 17), that Dr Rose's opinion proceeded upon the basis of pre-existing (neck) symptoms, was beside the point (and did not grapple with the true issue) as Dr Rose had found the pain symptom aggravated by the motor vehicle accident and Associate Professor Myers (and Dr Mitchell) found that was not the cause.
In my view, the third defendant did take into account that Associate Professor Myers (and Dr Mitchell) found that the post-accident neck symptoms were unrelated to the motor vehicle accident. When properly understood, the foundation for the plaintiff's challenge based on a relevant consideration ground for judicial review with respect to ground 1, was not that the third defendant failed, as such, to have regard to Associate Professor Myers (and Dr Mitchell) finding that the neck symptoms were unrelated to the motor vehicle accident but rather constituted an impermissible challenge to how such considerations were taken into account and what weight they were to be accorded.
This conclusion is a fortiori in the case of the issues raised with respect to Ms Francke's clinical notes. The third defendant identified that the plaintiff was relying upon the notes to establish that there was a pre-existing psychiatric injury. She found that Ms Francke's clinical notes were not objective evidence of a systematic impairment at the time of the motor vehicle accident as, inter alia, they were three years old. The plaintiff contended this misunderstood its case, on the basis that the wrong history was given to Dr Rose (by the first defendant), and that Ms Francke's clinical notes had a capacity to persuade Dr Rose that there was an underlying psychiatric condition prior to the motor vehicle accident in order to demonstrate that Dr Rose's estimate of psychiatric impairment may have been less, if possessed of the additional information. The plaintiff's submissions are clearly directed to the weight that the defendant should have attached to the notes in evaluating whether that information was capable of having a material effect on the outcome of Dr Rose's assessment.
This discussion brings attention to the identification of the precise nature of the legal obligation by the plaintiff as to a failure to take into account the additional information. Separate attention will need to be given in that respect to grounds 1 and 2.
The plaintiff offered no authority to support its approach to ground 1, namely, that the Court may have regard to the matters sought to be relied upon by the plaintiff in support of judicial review on a relevant consideration ground.
As to ground 2, the plaintiff relied upon legal and jurisdictional error. No authority was directly referred to in this respect although Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 197 ALR 389; 77 ALJR 1088; [2003] HCA 26 ("Dranichnikov") appeared on the list of authorities.
The plaintiff's oral submissions were replete with references generally to the third defendant's failure to engage with the submissions of the plaintiff. Employing the approach in Dranichnikov, it would appear the plaintiff was contending that the third defendant failed to respond to a substantial, clearly articulated argument relying upon additional facts although there was no statement of a ground or contention that there was a denial of natural justice.
The plaintiff relied upon jurisdictional error, in this respect, but did not refer, for example, to the judgment of Gaudron J in Re Minister for Immigration and Multicultural Affairs; Ex parte Miah (2001) 206 CLR 57; [2001] HCA 22 at [81], referred to in Cervantes, in which there was discussion of error of that kind being established where there was a clear case of constructive failure to exercise jurisdiction (in that matter the Court considered whether there had been such an error based on a failure to consider Mr Miah's application; a failure that could only have been reached by a misunderstanding of what was involved in the "Convention definition of 'refugee'").
Two further matters should be mentioned in that light both of which derive from Cervantes (see [21] and [22]). In summary:
1. A constructive failure to exercise jurisdiction may arise because a statutory conferral of power, in this case s 62(1A), has not been exercised according to its terms.
2. There is no obligation to consider every piece of evidence presented: see also Reece v Webber (2011) 192 FCR 254; [2011] FCAFC 33 at [65].
Whilst I do not consider the third defendant was required to articulate in greater detail in her reasoning the effect of the Certificate of Associate Professor Myers (or Dr Mitchell's report) in determining the application, I consider that the third defendant's reasoning (at para 17 of her decision) demonstrates a failure to engage with a clearly articulated argument by the plaintiff made to the third defendant or, for that matter, the substance of the plaintiff's application.
The third defendant's statement that Dr Rose took into account the first defendant's "pre-accident injuries" is clearly central to the third defendant's rejection of the application. It appears from the same paragraph (para 17) of the decision, the third defendant did so in the light, as she mentioned, of Dr Rose's finding that the previous complaints of pain had been aggravated by the motor vehicle accident. That juxtaposition of those reasons demonstrates that the third defendant failed to appreciate or did not deal with the plaintiff's contention that the pre-existing symptoms of neck pain had not, in accordance with the Certificate of Associate Professor Myers (and Dr Mitchell's report), changed.
The third defendant found that Dr Rose was aware of the first defendant's pre-accident injuries and took them into account. However, the plaintiff's contention to the third defendant was not that Dr Rose was unaware of the pre-accident injuries but that the medical opinions which were then available by the Certificate of Associate Professor Myers (the Certificate of Associate Professor Myers was not taken into account by Dr Rose because it had not been put to Dr Rose) and the report of Dr Mitchell were to the effect that no aggravation was caused by the accident. It was contended by the plaintiff to the third defendant that, so far as pain disorder was concerned (and the major depressive disorder so far as it related to chronic pain - see extracted para 99 at [54] of this judgment), the respective assessments were contradictory. For present purposes, whether that was strictly correct or an overstatement is beside the point. The essence of the plaintiff's case here, with which I agree in relation to ground 2, is that the contention was not addressed by simply acknowledging that Dr Rose was aware of pre-existing complaints.
This failure is illustrated by the third defendant's purported recitation of the plaintiff's case at the outset of her reasons.
The third defendant stated that one of the grounds relied upon by the plaintiff was that Dr Rose had accepted that the plaintiff's "chronic pain and pain disorder were caused" by the motor vehicle accident. The plaintiff correctly complained that the third defendant had understated the position and that its case was that "the chronic pain and pain disorder were wholly a result of pre-existing physical symptoms" and that "the accident did not correlate to any physical symptoms that could lead to a diagnosis of chronic pain and pain disorder".
For completeness, I note that I do not consider the distinction sought to be drawn by the first defendant between a "primary psychiatric injury" found by Dr Rose and the physical or medical opinion expressed by Associate Professor Myers alters that conclusion. Dr Rose's diagnosis of a pain disorder was based upon aggravated chronic pain experienced by the first defendant said to be derived from injuries sustained in the motor vehicle accident. Whilst the diagnosis of pain disorder was psychiatric in nature, the finding as to aggravation resulted from reporting by the first defendant of her experiencing aggravated pain in her neck as a result of the motor vehicle accident.
Further, I have doubts as to whether these finding extend to the diagnosis of major depressive disorder. Whilst the plaintiff asserted to the third defendant (and in these proceedings) that "undoubtedly" the wrong assumption as to the cause of ongoing neck pain vis-a-vis the motor vehicle accident was a significant contributor to the major depressive disorder diagnosis, there was little foundation beyond speculation, for that contention.
Dr Rose specifically referred to a pain disorder deriving from an aggravation of symptoms of chronic pain after the motor vehicle accident. There is no counterpart linkage in his report as to major depressive disorder. It is true that Dr Rose found that all psychiatric diagnoses were relevant to the motor vehicle accident. However, in dealing with those diagnoses his approach was clearly different as between the basis for his diagnosis of pain disorder and the diagnosis of major depressive disorder and post-traumatic stress disorder. As to the latter two diagnoses, he found "the severity of the [motor vehicle accident] was clearly such as to precipitate the post-traumatic stress disorder and major depressive disorder". That conclusion is to be distinguished from the basis for his diagnosis of pain disorder (deriving from the same sentence of his report, see [48] above) which was aggravation of pain caused by the motor vehicle accident.