Insurance Australia Group Ltd t/as NRMA Insurance v Keen

Court of Appeal (NSW)|2021-10-26|Before: Basten JA, Leeming JA, Rothman J

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

The assessment of permanent impairment by Dr Meakin

Mr Keen made a claim in January 2018. In the intervening four years since the motor accident, he had undergone treatment, including surgery in July 2017 for disc replacement at the lower lumbar spine (L5/S1). Mr Keen's application for assessment of permanent impairment was dated 13 March 2019. Both sides provided materials to a Medical Assessor in accordance with the procedures established by the State Insurance Regulatory Authority (SIRA). The insurer's materials were very substantial. They were eight pages of submissions and 32 pages of chronology summarising primary medical records in excess of 2,000 pages. The gravamen of the insurer's contentions was that no part of any permanent impairment suffered by Mr Keen was attributable to the motor accident. As was articulated in oral submissions in this Court by Mr Robinson SC, the high points of the insurer's case were: 1. a series of radiological scans both preceding and following the motor accident which showed no change in the appearance of the L5/S1 disc; 2. the opinions of Dr Dalton that there was nil permanent impairment related to the motor accident, and 3. some more or less contemporaneous histories given by Mr Keen to medical practitioners shortly after the accident which made no reference to the motor accident, but rather to the earlier 2012 workplace injury.
The voluminous documentation was reviewed by Dr Ian Meakin, a specialist orthopaedic surgeon. He produced a medical assessment dated 11 June 2019 holding that the agreed permanent impairment as a result of the motor accident was 15%, comprising 0% for Mr Keen's thoracic spine and 15% for his lumbar spine. Dr Meakin's starting point was 20%, with an allowance of 5% for the pre-existing condition.
Dr Meakin's certificate was conclusive evidence as to Mr Keen's whole person impairment as a result of the motor vehicle accident in any court proceedings or in any assessment by the Commission in respect of the claim concerned: Motor Accidents Compensation Act, s 61(2).
It should be said immediately, in light of the criticisms levied against the reasoning which was incorporated as part of the certificate, that Dr Meakin gave a careful summary of the enormous volume of historical material and conflicting medical opinions which the parties had provided. In particular, in circumstances where it would have been easy to rely merely upon the parties' submissions, Dr Meakin's summary of the historical opinions by various medical practitioners makes it plain that he had read them independently. His reasons also make it plain that he had independently reviewed the photographic evidence of the motor vehicle accident (which he described in different terms from the descriptions in the parties' submissions) and he gave a much fuller chronological account of the history provided by Mr Keen. It should also be noted that no criticism was made of the clinical examination that Dr Meakin undertook.
There is no doubt that Dr Meakin apprehended the gravamen of Dr Dalton's views. He reproduced the following: "Dr Dalton opined that the effect of the 2012 work injury had been under-stated noting considerable symptoms reported prior to the current motor vehicle accident. Dr Dalton concluded that in his opinion there was no permanent impairment relating to the current motor vehicle accident and any need for surgery did not arise from that event, but rather previous clinical issues."
Dr Meakin referred to the radiological material, including three MRI scans given prominence in submissions in this Court and other X-rays, and his observation that the L5/S1 disc appeared unchanged both before and after the motor vehicle accident.
Dr Meakin also summarised medical evidence (including from Dr Hopcroft and Dr Giblin) supplied on behalf of Mr Keen to the effect that the motor vehicle accident aggravated a pre-existing degenerative condition at L5/S1.
Section 6 of Dr Meakin's reasons is titled "Conclusions". Some were favourable to the insurer. He found that discomfort associated with the cervical spine had not been present for some months and therefore appeared to have resolved. He also found that there had been a pre-existing degenerative change at the L5/S1 disc, referring to a scan performed on 19 October 2012, and finding that back pain and pain radiating into the posterior aspect of both legs persisted until the motor vehicle accident. But he stated: "As a result of the current motor vehicle accident there has been an increase in the symptoms along with discomfort radiating towards the thoracic and lumbar spine with intermittent discomfort continuing in the thoracic spine and [to] a much lesser extent in the lumbar spine."
In the section headed "Determinations", Dr Meakin confirmed that there was no impairment to the cervical spine and while there was intermittent discomfort in the thoracic back that should be assessed at 0%. Under the heading "Lumbar spine", Dr Meakin wrote: "It is my opinion today, at the time of assessment that the definition of radiculopathy as set out under Item 1.138 of the Guides is not met with this Guideline requiring two or more of a list of five clinical signs to be present. There has been a disc replacement at the L5/S1. Item 1.145 of the Guides states that a spinal fusion or intervertebral disc replacement is included in the definition of multilevel structural compromise with reference to Item 1.143 which refers to DRE Categories IV and V and because of the lack of clinical evidence of radiculopathy, a Category IV impairment is noted - 20% Whole-person impairment. I am historically convinced that prior to the current motor vehicle accident on 17 January 2014 there was evidence of low back pain with symptoms radiating into the lower extremities that would have fulfilled the definition of a non-verifiable radicular complaint. Therefore, with reference to Table 72, AMAIV and Table 7 of the current Guidelines, in my opinion, a DRE Lumbosacral Spine Impairment Category II would have existed - 5% Whole-person impairment."
That reasoning reflects the constraints upon the assessment undertaken by Dr Meakin, including the significance of the L5/S1 disc replacement.
It followed that Dr Meakin applied a 5% reduction for pre-existing injury to the 20% whole person impairment attributable to the disc replacement at L5/S1, reaching a result of whole person impairment of 15%.

The insurer's application for review by a review panel

The insurer applied for review by a review panel pursuant to s 63 of the Motor Accidents Compensation Act. Section 63(2) provided that an application for referral to a review panel may only be made on the ground that the assessment was incorrect in a material respect. The insurer's application attached submissions identifying two bases on which it was said that the assessment was incorrect in a material respect. One concerned the failure on the part of the assessor to deal with apportionment. Although that was pursued in the insurer's summons in the Common Law Division of this Court, it is outside the scope of this appeal and need not be mentioned any further.
The insurer's principal complaint was that the assessor "gave no consideration to whether the claimant's need for an L5/S1 disc replacement (which gave rise to a finding of 20% whole person impairment) was causally related to the accident in circumstances where the claimant had evidence of prior back complaints". It was said that "[n]owhere in the section dealing with the lumbar spine has the Assessor considered whether the claimant required the disc replacement due to his pre-existing injury or due to the injuries caused by the motor vehicle accident". It was said that this was put squarely in the insurer's submissions, with the result that it was necessary for the assessor to consider whether the surgery was required as a result of the injury caused by the motor vehicle accident, which had not been done and accordingly the assessor had not exercised his statutory function. Alternatively, it was said that if causation were considered, there were no reasons given for the finding that the surgery was causally related to the motor vehicle accident.
The insurer's right to a review of Dr Meakin's assessment was qualified by s 63(3). In the form that section took at the relevant time, s 63(3) provided that the proper officer of the Authority was to arrange for an application for review to be referred to a panel of at least three medical assessors, but: "only if the proper officer is satisfied that there is reasonable cause to suspect that the medical assessment was incorrect in a material respect having regard to the particulars set out in the application". Under the current regime, which took effect earlier this year, the role of the proper officer has been replaced by the President.

The decision of the proper officer

The proper officer made a decision dated 20 September 2019. He was not satisfied that there was reasonable cause to suspect that the medical assessment was incorrect in a material respect and dismissed the application for review.
The proper officer's reasons noted the paragraph reproduced above which contained the finding that "as a result" of the motor vehicle accident there had been an increase in symptoms and concluded that "[i]t is therefore clear from a reading of the Assessor's reasons as a whole that due to an increase in symptoms as a result of the subject January 2014 motor accident, the claimant underwent surgical intervention". The proper officer referred to the causation principles in cll 1.5-1.7 of the Guidelines to the effect that the accident need only be a "contributing cause, which is more than negligible" to the injury. He stated that: "In circumstances where the Assessor found an increase in symptoms following the subject accident and where the applicant has not pointed to any evidence of the claimant needing the surgery before the accident, I am not satisfied of reasonable cause to suspect that the causation decision with respect to the lumbar spine injury is incorrect in a material respect."
The proper officer rejected the insurer's submission that it was necessary to deal expressly with Dr Dalton's opinion that there was no permanent impairment caused by the motor vehicle accident, saying that that was "requiring too high a level of reasoning from the Assessor." He also rejected the submission that it was necessary to refer in more detail to the MRI radiology, stating "as the applicant is no doubt aware, what is shown on radiology is only relevant when they are concordant with clinical signs and symptoms (clause 1.121 of the Guidelines)." Finally, the proper officer noted that this was not a case where the assessor had disregarded the pre-existing complaints. Instead, he had squarely addressed them and applied a deduction.

The insurer's application for judicial review

Precisely three months after the decision of the proper officer, the insurer filed a summons in the Common Law Division of this Court seeking to challenge both the original assessment by Dr Meakin and the proper officer's decision. The insurer recognised that an extension of time was required in relation to the earlier decision. That was largely brought about by the delay in filing the summons challenging the proper officer's decision on the last available day.
A question arises as to the propriety of challenging both decisions, the insurer having chosen to apply to the proper officer. Mr Keen's response to the summons had stated as a threshold issue that the medical assessor's decision was "not amenable to judicial review given the plaintiff's invocation of the appellate jurisdiction under [the Act] and the subsequent decision of the proper officer of the second defendant, which decision superseded the Medical Assessor's decision." However, the primary judge (Rothman J) ruled against that threshold issue at [56]-[66], a result which also accorded with what had been said in Rodger v De Gelder (2011) 80 NSWLR 594; [2011] NSWCA 97 at [91]-[92].
Ultimately a notice of contention was filed after the hearing in this Court, without opposition, so as to permit a complete analysis of the issues.
The grounds in the insurer's summons were both numerous and poorly formulated. The drafter appears to have gone out of his or her way to ensure that at each stage a claim of error of law on the face of the record, as well as jurisdictional error, was propounded. Every single ground was framed in terms of "jurisdictional errors and/or errors of law on the face of the record". This is not unfamiliar, but it really should cease. It conveys nothing so much as that the drafter is unfamiliar with a basic threshold aspect of the challenge sought to be advanced. A litigant who wishes to invoke the Supreme Court's jurisdiction to quash an administrative decision made under the regime established for motor accident injuries ought to be able to distinguish error of law on the face of the record from jurisdictional error. It is necessary to do so in order to identify the grounds of the challenge. It is also necessary to do so in order to identify the evidence on which the challenge is based. That is to say, it is a distinction that needs to be appreciated prior to the commencement of any proceeding in this Court.
This Court has consistently emphasised the distinction between error of law on the face of the record and jurisdictional error and the need for practitioners to have regard to it. A recent example is Sleiman v Gadalla Pty Ltd [2021] NSWCA 236 at [19]-[20]. But the same points were made in earlier decisions: see for example Allianz Australia Insurance Ltd v Kerr (2012) 83 NSWLR 302; [2012] NSWCA 13 at [19] ("These considerations require the applicant to identify with a degree of precision which grounds are said to involve jurisdictional error and which errors of law on the face of the record") and AAI Ltd trading as GIO as agent for the Nominal Defendant v McGiffen [2016] NSWCA 229; 77 MVR 348 at [45] ("As has been repeatedly emphasised, the distinction is important").
Paragraph two of the insurer's summons contained 13 sub-paragraphs identifying various complaints with the medical assessment decision. These included a failure to set out "proper or lawful reasons" for the decision as required by s 61(9) and also a complaint that the assessor was required to respond to substantial and clearly articulated arguments, including arguments going to causation such as the nominal nature of the accident and the pre-existing injury to the claimant, it being said that the failure to respond to those arguments amounted to a denial of procedural fairness or alternatively a constructive failure to exercise jurisdiction.
Paragraph three identified complaints concerning the decision of the proper officer which are outside the scope of this appeal, and then paragraph four provided: "The medical assessor and the proper officer have committed error of law and/or fallen into jurisdictional error and/or they have constructively failed to exercise their jurisdiction in respect of each of or any of or a combination of the above grounds of judicial review and the decisions and certificates are accordingly invalid and should be set aside."
The result is a conspicuous failure to comply with the obligation to state "with specificity, the grounds on which the relief is sought": UCPR r 59.4(c).
The foregoing is not merely yet another lament for precision by a sophisticated litigant retaining experienced lawyers who ought to know better. It assumed some significance, because at the forefront of the insurer's attack in this Court upon the decision of the primary judge was a complaint about the approach taken in [72], which was as follows: "While these reasons for judgment seek to separate out the grounds of appeal, there is much support for the proposition that each of the grounds of appeal is a different way of expressing the same issue. The complaint as to causation is that the Assessor did not address the proposition that the surgery was caused by the pre-existing work injury as distinct from the motor vehicle accident. That, too, is the basis upon which it is said there is insufficient reasons for the Assessor's decision; and the basis upon which it is said a clearly articulated argument was not addressed."
With respect, it was entirely appropriate for the primary judge to cut through the imprecise and prolix formulation of grounds in the insurer's summons and attend to the substance of the underlying complaints.

The reasons of the primary judge

After setting out the evidentiary and procedural background, and rejecting Mr Keen's preliminary challenge to the insurer's attack upon the superseded determination of the medical assessor, the primary judge turned to causation at [67]-[113] and the failure to provide lawful reasons at [114]-[130]. Those paragraphs addressed what was the principal attack at first instance upon the medical assessment certificate rather than the decision of the proper officer. His Honour found they were not made out.
The primary judge then dealt separately with the challenge to the decision of the proper officer at [136]-[171], again concluding it was not made out.
It will not be necessary to summarise all of the reasoning of the primary judge, much of which is not challenged on appeal. Because all three grounds of appeal to this Court concerned failures on the part of the primary judge to do certain things, it is best to summarise those portions of his Honour's reasons relevant to each ground when dealing with each ground.

The appeal to this Court

The insurer's appeal raises three grounds: "1. The primary judge failed to consider whether Campbelltown City Council v Vegan (2006) 67 NSWLR 372 at [121]-[122] ("Vegan") informed the duty to give reasons that was imposed on the medical assessor in the proceedings the subject of the Amended Summons below ("the medical assessor"), even though the appellant had made a substantial and clearly articulated argument that Vegan did apply. 2. The primary judge failed to apply Vegan when determining whether the medical assessor had provided lawful reasons for his decision. 3. The primary judge failed to determine a substantial part of the appellant's case below, namely, the case outlined at grounds 2(g) and 2(h) of the Amended Summons filed in Court on 24 July 2020."
Grounds 1 and 2 are closely linked and were addressed concurrently in oral submissions. I shall follow the same course. Oral submissions commenced with ground 3 and, again, I shall follow the same course.

Failure to determine a substantial part of the appellant's case

Grounds 2(g) and (h) of the amended summons had been attached to the insurer's written submissions in reply supplied shortly in advance of the hearing. They were: "(g) The medical assessor was required to respond to substantial and clearly articulated arguments before him. i. The plaintiff had outlined substantial and clearly articulated arguments that went to causation including the nominal nature of the subject accident, the pre-existing injury to the claimant and reports in support. (h) The failure to respond to these arguments amounts to a denial of procedural fairness or, alternatively, a constructive failure to exercise jurisdiction and, thereby invalidates the medical assessor's decision."
Some measure of precision is required when determining whether the primary judge erred as alleged in ground 3 in failing to determine a substantial part of the appellant's case, that substantial part being a complaint that the medical assessor was required to respond to a substantial and clearly articulated argument before him. Despite the similarity of the language used to describe the ground of appeal from the judgment and the ground of judicial review of the decision of the medical assessor, the two are quite different. Courts resolve disputes. Medical assessors assess the degree of permanent impairment.
A court's task is to resolve justiciable controversies, constituted by the parties' competing claims. A court should address substantial and clearly articulated submissions, not least because there is a danger that the entirety of the dispute will not be resolved if some substantial submission is not addressed. A court may not need to resolve every issue, but it should make it clear why the submissions it has resolved are dispositive of the case and ideally why it is unnecessary to determine other submissions which have been advanced by the parties unless they are patently insubstantial.
The function of the assessor is quite different. The assessor was obliged following the referral by SIRA to determine a quintessentially factual issue: the degree of permanent impairment suffered by Mr Keen caused by the motor accident, reduced to a percentage calculated in accordance with the Guidelines. As the High Court emphasised, speaking of the decisions of medical panels under the Accident Compensation Act 1985 (Vic) in Wingfoot Australia Partners Pty Ltd v Kocak (2013) 252 CLR 480; [2013] HCA 43 at [47], the Medical Panel was not required to decide a dispute or make up its mind by reference to competing contentions or competing medical opinions: "The function of a Medical Panel is neither arbitral nor adjudicative: it is neither to choose between competing arguments, nor to opine on the correctness of other opinions on that medical question. The function is in every case to form and to give its own opinion on the medical question referred to it by applying its own medical experience and its own medical expertise."
Dr Meakin received more than 2,000 pages of material. His task was to make binding factual determinations, following his review of that material and following a clinical examination of Mr Keen. He did just that. It was not part of his function to assess the cogency of the "case" advanced on behalf of the insurer.
Further, the standard of reasons required of a medical assessor is different from the standard required of a court. It is to be borne firmly in mind that Dr Meakin was a qualified medical specialist, and ultimately his certificate reflected his own professional judgment as to the whole person impairment of Mr Keen and whether it had been caused by the motor vehicle accident.
The reasons required to be given by the medical assessor must be sufficient to explain the actual path of reasoning by which the opinion is reached, and in sufficient detail to enable a court to see whether that opinion involves any error of law. When pressed, the insurer accepted the applicability of what the High Court said in Wingfoot at [63] as follows: "The answer to the Worker's complaint lies in the implicit finding of the Medical Panel that the Worker on 16 October 1996 sustained only a soft tissue injury, and not an injury to his spine. That finding was one of fact. Whether or not that finding of fact was open to the Medical Panel is a question of law. But no further explanation of the reasoning process adopted by the Medical Panel is necessary to enable a court to address that question."
All of the findings made by Dr Meakin were findings on issues of fact. The extent of permanent impairment and the question of causation were both questions of fact, and quintessentially so. As the High Court observed in the passage reproduced above, if there were no evidence to support either of those findings of fact, that would be an error of law. But no such submission was made, and there was a body of evidence opposed to that propounded by the insurer which was capable of sustaining the opinions reached. As the High Court says, once a finding is made - and in Wingfoot it was made only implicitly - no further explanation of the reasoning is required.
It follows that grounds 2(g) and (h) of the insurer's amended summons were misconceived. The requirement upon the medical assessor was to make the findings of fact required by the referral to him. The primary judge was correct to conclude at [123] that the medical assessor had not failed to respond to an articulated argument, as the insurer had maintained in grounds 2(g) and (h). His Honour was correct at [119] to place emphasis on the passage in Wingfoot at [47] that it was not the function of a medical assessor to adjudicate or arbitrate between competing opinions. His Honour was correct to observe at [121] that this ground reduced to an alleged failure to provide reasons as to why Dr Meakin preferred his own opinion and dismissed the opinion of Dr Dalton.

Sufficiency of reasons

Grounds 1 and 2 of the appeal complained that no mention was made of Campbelltown City Council v Vegan (2006) 67 NSWLR 372; [2006] NSWCA 284 at [121]-[122] despite that decision being squarely advanced in oral and written submissions. It is true that a submission had been made to his Honour that the reasons in order to comply with statute needed to satisfy the test stated in Vegan. The primary judge recorded that submission at [55] but did not separately address it.
Vegan was a different case from the present. First and foremost, it arose under a different regime where there was no express obligation to give reasons. As may be seen at [117], this Court held that the Appeal Panel under the regime established under the Workplace Injury Management and Workers Compensation Act 1998 (NSW) was subject to an implied statutory obligation to give reasons. In the present case, the obligation to set out "the reasons for any finding by the medical assessor or assessors as to any matter certified in the certificate in respect of which the certificate is conclusive evidence" is found in s 61(9).
Secondly, the paragraphs in Vegan upon which the insurer placed reliance are as follows: "[121] Where it is necessary for the Panel to make findings of primary fact, in order to reach a particular conclusion as to the existence, nature and extent of any physical impairment, it may be expected that the findings of material facts will be set out in its reasons. Where facts are in dispute, it may be necessary to refer to evidence or other material on which findings are based, but the extent to which this is necessary will vary from case to case. More importantly, where more than one conclusion is open, it will be necessary for the Panel to give some explanation of its preference for one conclusion over another. That aspect may have particular significance in circumstances where the medical members of a Panel have made their own assessment of the applicant's condition and have come to a different conclusion from that reached by other medical practitioners, as set out in reports provided to the Panel. [122] On the other hand, to fulfil a minimum legal standard, the reasons need not be extensive or provide detailed explanation of the criteria applied by medical specialists in reaching a professional judgment: see Soulemezis (at 273-274) (Mahoney JA) and (at 281-282) (McHugh JA). At least, that will be so where the medical science is not controversial: if it is, a more expansive explanation may be required."
Those paragraphs are expressed, appropriately, as dependent upon the nature of the particular issues before the Appeal Panel. The only safe guidance from those paragraphs is that the adequacy of reasons depends upon the nature of the reasoning process.
Thirdly, references to a "substantial and clearly articulated argument" do not mean that the metes and bounds of the justiciable controversy is dependent only upon the capacity of litigants to make the same point in different ways. There was only one issue to which the insurer's submissions, insofar as they were based on Vegan, related. That was whether the obligation to provide reasons had been breached, leading to the decision being liable to be set aside. The insurer contended that an aspect of that issue might be informed by what had been said in Vegan notwithstanding that it was speaking of a different statutory regime, where the obligation to provide reasons was merely implied, and on a point which had subsequently been addressed by the High Court. But even so, that was merely one aspect of the basic argument that the decision should be quashed because of inadequate reasons. It was not a separate free-standing argument, but rather an aspect of the basic complaint that the reasons did not satisfy the minimal requirement of a valid assessment.
The reasons given by the medical assessor were brief. However, as the proper officer observed, and contrary to submissions made in writing and orally on behalf of the insurer, the reasons did address the insurer's complaint that the current impairment of Mr Keen was causally connected to the motor vehicle accident. The medical assessor expressly stated that there had been an increase in symptoms "as a result of the current motor vehicle accident". The assessor had also expressly stated Dr Dalton's opinion that the motor vehicle accident had no causal relationship with any permanent impairment, and accepted the identicality of the radiology both before and after the accident. The conclusion that symptoms had increased as a result of the motor vehicle accident is a rejection of Dr Dalton's opinions and a finding which accorded with some of the other medical evidence before the assessor. But it was not necessary for Dr Meakin to analyse in any detail the reasons given by Dr Dalton for that opinion because Dr Meakin's role was simply to make the factual finding as to whether or not the relatively relaxed common law approach to causation, which was satisfied if the motor vehicle accident was a contributing cause, was made out.
The primary judge addressed this in terms, and at length, by reference to the statutory requirement in s 61(9) and what had been said of the similar scheme in Wingfoot. His Honour correctly regarded the adequacy of the medical assessor's reasons as a principal aspect of the insurer's application for judicial review, and addressed it at [114]-[130].
These grounds are not made out.

Notice of contention

By notice of contention filed after the hearing in accordance with this Court's directions, Mr Keen contended that: "The decision of the [medical assessor] is and was not amenable to judicial review given the appellant's invocation of the appellate jurisdiction under the Motor Accidents Compensation Act 1999, s 63, and the subsequent decision of the proper officer ... which decision superseded the [medical assessor's] decision."
By his written submissions, Mr Keen maintained that the insurer "properly invoked that appellate jurisdiction", that the proper officer determined the insurer's application to "appeal" to a review panel on the merits. He relied upon what had been said of the regime under the Workplace Injury Management and Workers Compensation Act in Vitaz v Westform (NSW) Pty Ltd [2011] NSWCA 254: "[53] Whether relief can lie against the original decision-maker where there has been an independent review of his or her decision, on the merits, will depend upon the obligation said to have been breached and the nature of the statutory scheme. To challenge the original decision as 'invalid' is not to preclude the applicant exercising a right of appeal to the Appeal Panel. Indeed, the ground of invalidity, may constitute an available ground of appeal under s 327(3). [54] Where the approved medical specialist has failed to make a necessary finding or has failed to give reasons in accordance with s 325(2) of the Workplace Injury Act, that decision may be the subject of challenge by way of judicial review in the Supreme Court. However, a more convenient and satisfactory remedy will usually be obtainable from the Appeal Panel. Where appellate relief has been sought and refused, a challenge to the original decision can only be brought in the Supreme Court if the matter was one which was not and could not reasonably have been raised before the Appeal Panel and remains relevant. Otherwise, the decision of the Appeal Panel must be taken as the decision in respect of the substantive issues resolving the medical dispute."
Mr Keen submitted that the position was no different from what obtained in Vitaz, notwithstanding the dismissal of the application for review at the "gatekeeper" stage by the proper officer, "because there had been a consideration on the merits within the appeal process established under the MACA".
Mr Keen also relied on Blacker v Parnell [1978] 1 NSWLR 616, which concerned an application for judicial review of a conviction and sentence imposed by a magistrate after an appeal to the District Court had been dismissed. Although recognising the regime was different, it was submitted that the statement of principle that the operative orders had become that of the District Court was sound. Reliance was also placed on Wishart v Fraser (1941) 64 CLR 470 for the same point.
Mr Keen sought to distinguish Rodger v De Gelder (2011) 80 NSWLR 594; [2011] NSWCA 97 on which the primary judge had relied, and in particular the following passage: "[91] … the MAC Act does not provide for an appeal from or a review of a Proper Officer's determination under s 62. However, there is a process of review of medical assessments. The authorities are clear that a court may and usually does, decline prerogative relief where an applicant has not exhausted such appeal or review rights as may be available. In the present case, where the processes mandated by the MAC Act are intended to provide a low cost and relatively expeditious means of recovering compensation, I am of the opinion that a party, by participating in a further medical assessment or a review thereof, has not by that fact alone waived or abandoned a right to seek prerogative relief, so as to permit the refusal of relief on discretionary grounds."
It was said that it did not follow that after the exhaustion of appeal rights, all underlying decisions in the appellate hierarchy were open to judicial review. Mr Keen said that the operative decision was now that of the proper officer.
I do not accept these submissions. First, there was not a process of "appeal". The application was for review, by a review panel, which could only occur if (under the former regime) the proper officer was satisfied there was reasonable cause to suspect the medical assessment was incorrect in a material respect.
Secondly, if the review panel conducted a review, it was empowered to confirm the certificate of assessment or to revoke it and issue a new certificate. However, until such time as the review panel exercised those powers, the certificate which governed the rights of all parties was that of the original medical assessor. Section 61(1) required the medical assessor to give a certificate as to the matter referred for assessment. Section 61(2) provided 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 concerned."
Thus the fact that the proper officer had declined to refer the insurer's application to a review panel meant that the operative decision was that of the medical assessor, whose certificate continued to bind the parties. I see no reason why the insurer is disentitled from seeking to review that decision, for error of law on the face of the record or jurisdictional error. That accords with what was held in Rodger v De Gelder at [91].
The foregoing also accords with the reasons of the primary judge: "[59] In any proceedings in any court, the certificate that would be conclusive and the medical assessment that would be conclusive (subject to the statutory exceptions) is that medical assessment certified by the Assessor. The decision of the Proper Officer is akin to a denial of leave to appeal and acts as an administrative aid in reducing the workload of Review Panels to those matters that are arguably appropriate, namely, pursuant to s 63(3) of the Act for which the Proper Officer is required to be satisfied that there is 'reasonable cause to suspect that the medical assessment was incorrect in a material respect'. [60] In other words, the decision of the Proper Officer has no effect other than to deny, to an applicant for a review, that right. The order, decision or certificate that has continuing effect is, in circumstances where the Proper Officer has refused to arrange a review, the initial medical assessment."
That is not an end to the matter. There is to my mind a difficulty in the insurer waiting for a full three months from the decision of the proper officer, only then to bring judicial review proceedings which were principally directed to the operative decision, that of the medical assessor. The three-month period stated in UCPR r 59.10 reflects the fact that proceedings for judicial review should be determined quickly. It will often be the case, as here, that there are no issues of disputed fact in the judicial review proceedings, which can and should be determined promptly, especially where the decision is merely an intermediate step in the determination of a claimant's ultimate entitlement. Many provisions reflect the need for timeliness. One is that an application under s 63 must be made promptly (in 2019, the period was 30 working days; it is now 28 days: s 63(7)). Another is the duty of an insurer "to endeavour to resolve a claim, by settlement of otherwise, as justly and expeditiously as possible": s 80(1). The Legislature regarded that duty as of sufficient importance to deem it to be a condition of the insurer's licence: s 80(2). All of this sits uneasily with an entitlement to delay the commencement of proceedings for judicial review.
The insurer needed an extension of time before the primary judge. That may arise in blameless circumstances. A timely application for review may be refused by the proper officer with the disappointed litigant only learning the outcome more than three months after the medical assessor's decision. Ordinarily, if litigation is commenced promptly thereafter, there will be a proper basis for the requisite extension of time. But in the present case, the insurer delayed for three whole months after the adverse decision of the proper officer, only then to approach the court for an extension of time to review the decision of the medical assessor.
If a claimant or an insurer takes that course, it would be appropriate to provide an evidentiary account for the delay. If the delay is of the insurer, then it would be appropriate for the insurer in the course of providing that evidence to explain how the course it has taken complies with the duties to which it is subject.
Although I would not uphold the notice of contention, I propose that the appeal be dismissed with costs.
SIMPSON AJA: I agree with Leeming JA.

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: 25 November 2021

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