62 MVR 537
Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26
(1986) 162 CLR 24
Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6
[1996] 185 CLR 259
Minister for Immigration and Multicultural Affairs v Bhardwaj [2002] HCA 11
C Jackson (Plaintiff)
KP Rewell SC
Source
Original judgment source is linked above.
Catchwords
62 MVR 537
Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26(1986) 162 CLR 24
Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6[1996] 185 CLR 259
Minister for Immigration and Multicultural Affairs v Bhardwaj [2002] HCA 11C Jackson (Plaintiff)
KP Rewell SCPJ Frame (First Defendant)
Judgment (6 paragraphs)
[1]
Background
For about two years after his accident Mr Milton received care and treatment as an "interim participant" in the LCS scheme. After that period expired the NRMA applied to have him admitted to the scheme. Mr Milton resisted the application. One consequence of his being admitted is, as I have stated, that he would be precluded by s141A(1) from claiming damages with respect to his treatment and care needs.
In or about November 2013 the NRMA's application for Mr Milton to be admitted to the scheme was refused. In or about January 2015 the refusal was upheld by a Review Panel under the LCS Act. The NRMA sought judicial review of the Review Panel's determination. On 26 September 2015 I dismissed its application for judicial review (Insurance Australia v Milton [2015] NSWSC 1392). On 5 July 2016 the Court of Appeal dismissed an appeal from that decision (Insurance Australia Limited t/as NRMA Insurance v Milton (2016) NSWCA 156).
In the meantime, Mr Milton was pursuing his claim for an assessment under Part 4.4 of the MAC Act. On 17 February 2016 he lodged a "Form 2A" which contained material setting out a quantification of the amount he claimed and provided material in support. On 18 March 2016, the NRMA wrote to the Assessor seeking that the matter be exempted from the CARS assessment process under s 92(1)(b) on the bases that the application involved complex legal issues and complex issues of quantum and medicine. Ultimately these bases for exemption were not pursued.
On 12 April 2016, the Assessor indicated that the matter would not be listed for assessment until the Court of Appeal delivered its judgment. She issued a direction under s 100(1) of the MAC Act which, inter alia, required the insurer to supply the material it relied upon. On 21 April 2016 the NRMA's solicitor responded. He added the assertion that the application for exemption invoked clause 14.16.11 of the Guidelines and referred to earlier submissions that had been made about supposedly inconsistent statements made by Mr Milton concerning his injuries and disabilities. Otherwise, the letter sought to defer the assessment process until after the Court of Appeal delivered judgment, and to defer compliance by NRMA with the directions issued by the Assessor under s 100.
On 27 April 2016, the Assessor issued a document which has the heading "Supplementary Report on First Preliminary Conference". The Assessor rejected the request of the NRMA not to serve the material required by the direction under section 100, although the Assessor amended the time by which the service of that material was required.
In relation to the reliance by the NRMA upon clause 14.16.11 of the Guidelines, the Assessor stated:
"It is unclear to me whether the statements alleged to be false and misleading are those contained within the second report of Dr Bowers of May 2014 and the report of the LTCS Review Panel of November 2014, or whether the false statements are those highlighted as being inconsistent with the contents of those two reports. In other words, [NRMA's solicitor] does not indicate which of the extracted statements are alleged to be false and misleading. That needs to be clarified before I can make any determination on that issue."
On 29 April 2016 NRMA's solicitor wrote a long letter by way of response. I will refer to it in some detail, because it was relied on by Counsel for the NRMA, Mr Fitzsimmons, and it encapsulates the NRMA's claim for exemption.
In one a part of the letter headed "Further Submissions on Inconsistencies and False and Misleading Statements provided by the claimant", the NRMA's solicitor stated:
"The insurer submits the numerous inconsistencies in the claimant's presentation and reports of impairments to numerous persons during the course of the proceedings amounts to the provision of 'false and misleading' statements by him.
The insurer submits its previous submissions clearly identify the numerous and substantial inconsistencies in the claimant's reports of impairment, but notes the Assessor's direction the insurer: 'identify each statement of the claimant that is alleged to be false and misleading.'
As requested, the insurer identifies the following false and misleading statements."
Over the next two pages of the letter, and under the heading, "[a]s to bowel and bladder function", the letter identified various statements said to have been made by Mr Milton to a number of doctors between December 2012 and May 2014. At the end of that section the solicitor's claimant asserted that those statements were inconsistent with each other.
Next, under the heading "[a]s to cognitive function", the letter referred to statements made by Mr Milton to a rehabilitation physician in May 2014, and statements recorded in a number of the assessments undertaken during the reviews under the LCS Act. At the end of that part of the letter the solicitor stated:
"The insurer submits the claimant's statement to Dr Bowers and the LTCS Review Panel are completely inconsistent with the histories of significant cognitive impairment including fatigue and problems with concentration, attention and memory reported to numerous medical personnel both prior to and following those assessments (itemised below). The insurer submits the claimant's inconsistent statements are false and misleading."
Over the next four pages the letter listed various statements said to have been made by Mr Milton between 5 December 2011 and 15 February 2016. Next, the letter sought to contrast what the NRMA contended was said by Mr Milton to Dr Bowers on 22 May 2014 and the Functional Independent Measurment Assessment ("FIM") panel as part of the LCS scheme with what the NRMA contended was the effect of more dire statements concerning his condition made by Mr Milton to other doctors.
At the end of this passage the solicitor then submitted as follows:
"These complaints to Dr Buckley are clearly totally inconsistent with the claimant's presentation to Dr Bowers and also to the LTCS Review Panel.
The insurer submits the claimant's history of complaints of impairment (as comprehensively detailed above) is littered with false and misleading statements. The claimant has indicated to various treating and medico legal personnel that he has significant deficits. He then denies such deficits to Dr Bowers and the LTCS Review Panel and, afterwards, again complains of significant deficits. Such a variance in complaints cannot be explained on any organic basis, as was indicated by the LTCS Review Panel: 'The panel was unable to explain on a medical basis the reasons for the improvement (emphasis added)…This was not the expected pattern of recovery from brain injury so many years after the subject accident'.
It is the insurer's submission the claimant is either embellishing his impairments to doctors to attempt to maximise his claim for damages or has given false information to the LTCS Review Panel to avoid being a participant in the Scheme. The insurer notes the claimant made it abundantly clear during the LTCS Review Panel assessment (A208) that he did not wish to be a participant in the Scheme. The insurer submits the claimant's manipulation of his provision of histories and reports of his level of impairment, is highly relevant to the issue of credit and amounts to false and misleading statements.
The insurer continues to submit the gross level of inconsistency by the claimant requires substantial testing during any assessment of the claim and that such testing of the claimant's evidence should be conducted during cross examination before a Judge of the District or Supreme Court, when the claimant is required to give evidence under oath or affirmation and where transcript services are available. The insurer notes such services are not available within the informal setting of a CARS Assessment Conference." (emphasis in original)
Although I have set these passages out in some detail, in my view there really was no fundamental disagreement or misunderstanding between either of the parties or the claims Assessor as to what was being said by the NRMA. The NRMA was not identifying a particular statement which it said was misleading. Instead, the NRMA was contending, so the argument went, that between those statements there were inconsistencies which necessarily meant that some of the statements had to be false and misleading.
From this point until the time of the Assessor's exemption decision, the parties traded submissions and counter-submissions. I will describe the Assessor's reasons shortly. It is only necessary to note three further points about the course of the submissions after the submission of the NRMA's solicitor made on 29 April 2016.
First, as between the NRMA and Mr Milton's solicitors, there was an impasse about whether the NRMA had sufficiently identified what statements were false. The position of the NRMA was encapsulated by what was stated by its solicitor in a letter of 8 July 2016, namely:
"It is not for the insurer to identify which of the claimant's specific statements are true or false (which the insurer cannot do by reason of the inconsistencies themselves), only to identify the substantial inconsistencies in the claimant's reports of abilities, disabilities and impairment."
The position put on behalf of Mr Milton was encapsulated in submissions put on his behalf by his Counsel dated 11 July 2016 as follows:
"It is simply illogical to assert that a claimant has made false and misleading statements, but at the same time to assert the insurer cannot identify which statements are false or misleading.
Nor is this consistent with the insurer's assertion that 'The claimant has provided false and misleading information with the intention of ensuring that he be not accepted as a participant in the LCS Scheme.'
If it is the insurer's position that the claimant has deliberately understated his disabilities so as to avoid participation in the LCS Scheme, and that such understatement of his disabilities amounts to 'false and misleading statements', material to the claim, the Insurer must explicitly say so.
The Insurer cannot on the one hand assert that the Claimant has deliberately understated his disabilities and that this amounts to 'fraud' and at the same time seek to rely on statements made by the claimant in FIM assessments to minimise his damages, which the Insurer plainly intends to do." (emphasis in original)
Second, at times the NRMA's solicitor contended that the Assessor should exempt the matter from the CARS assessment in order to facilitate the NRMA applying to have Mr Milton re-enter the LCS scheme. Thus, in an email of 9 June 2016, the NRMA's solicitor contended as follows:
"Any evidence given by the claimant for the purpose of any final determination of his entitlement to damages must be given under oath and recorded by transcript to afford the insurer the opportunity to refer the claimant back to LTCS should he continue to provide false and misleading statements amounting to fraud."
After the Court of Appeal's judgment was handed down in early July, and on or about 2 August 2016, the Assessor sought clarification of this aspect of the NRMA's position. The Assessor sent an email on that date to the NRMA's solicitor seeking confirmation or clarification as to what the provision of the LCS Act, or the Guidelines made under the LCS Act, enabled the NRMA to make a further application for Mr Milton's participation in the LCS scheme.
The NRMA's solicitor responded on the same day. He clarified that the insurer's application for exemption was "not to facilitate a second application for the claimant's participation in [the LCS Scheme]."
Third, it is otherwise necessary to note that up until the time of the exemption decision it appears that the NRMA had not provided the material that had been ordered by the Assessor to be provided in the directions made under s 100 of the MAC Act.
[2]
The Exemption Decision
On 5 August 2016, the Assessor purported to issue a decision recording her rejection of the application for exemption. In her reasons the Assessor made reference to the NRMA alleging fraud, but also referred to its failure to do so unequivocally and its failure to "seek a mandatory exemption pursuant to s 92(1)(a)."
On 22 August 2016, the NRMA's solicitor wrote to the Assessor contending that her decision was affected by jurisdictional error, that it be treated as "no decision at all", and requested that a further decision be made. In his letter the solicitor referred to Minister for Immigration and Multicultural Affairs v Bhardwaj [2002] HCA 11; (2002) 209 CLR 597. The solicitor's letter contended that the Assessor had wrongly construed that part of the Guidelines concerning mandatory exemption fraud, specifically, clause 8.11 (see [20]). The letter pointed out that that clause only concerned an allegation of fraud arising in relation to the "circumstances of the accident giving rise to the claim", whereas the NRMA's allegation concerning the statements made by Mr Milton concerned his injuries and disabilities as a result of the accident, and not the accident itself.
It seems the Assessor agreed with the point made by the NRMA's solicitor. On 23 August 2016 she advised the parties that she would revoke the decision and remake it. It was common ground that the Assessor published a short decision stating the decision was revoked, although that document was not tendered.
On 25 August 2016 the Assessor reissued her decision. She again rejected the application for exemption. In the course of her reasons the Assessor recounted in detail the course of the submissions made in support of the application, commencing with the submissions on 18 March 2016 referred to above, and concluding with the submissions exchanged in early August 2016.
Two matters should be noted at this point about that part of the Assessor's reasons. First, at a number of points the Assessor noted that the NRMA had not identified which of the statements, amongst the supposedly inconsistent statements, were said to be false. Second, the Assessor specifically noted the exchange in August 2016 about the relevance, if any, of any intention on the part of the NRMA to reapply to have Mr Milton join the LCS scheme. Ultimately, in her reasons, the Assessor referred to the "possibility of a second LCS application as having been laid to rest".
Next, in her reasons the Assessor noted the basis for the application by the NRMA for exemption had changed from one being based on complexity to one being based on an allegation that Mr Milton made a "false and misleading statement" in the material particular. In any event, in the next part of her reasons the Assessor rejected any suggestion that the quantum or complexity of the claim rendered it unsuitable for assessment.
The balance of the Assessor's reasons addressed the claim based on the allegation of a false and misleading statement by Mr Milton. To do justice to the parties' submissions, it is necessary to set out that part of the reasons in full:
"68. With regard to the allegation of false and misleading statements, I accept the submissions of Senior Counsel for the Claimant, that the Insurer's inability or disinclination to identify with precision which of the statements it says are false and misleading is fatal to its application.
69. It is concerning that Mr Utiger seeks to repeat the reference to 'fraud' while at the same time refusing to state which of the statements of the Claimant are said to be false and misleading such as to amount to fraud.
70. I accept that it is not my role, as discussed in Banos, to determine whether the dozens of statements quoted, or any of them, are false and misleading. I cannot do so in any event, as the Insurer has never identified which of those statements are said to be false and misleading. Rather, I have been directed to various inconsistencies which, it is submitted, amount to false and misleading statements. It is not sufficient for the Insurer to say, 'There are inconsistencies. There must be a false and misleading statement in there somewhere'.
71. I note that the footnote to Chapter 14.16.11 of the Claims Assessment Guidelines says:
'If an insurer makes an allegation that a person has made a false and misleading statement in a material particular in relation to the injuries, loss or damage sustained by the claimant in the accident, the insurer may be required to provide particulars in writing of the general nature of any such allegation under clause 17.13, and an Assessor may then consider whether a matter is not suitable for assessment under clause 14.11 to 14.16, particularly in light of clause 14.16.11.'
72. The insurer, while providing numerous examples of alleged inconsistencies, has refrained from stating the general nature of the alleged false and misleading statements and whether they comprise the statements of the LTCS panel and Dr Bowers or the statements to the other medical practitioners. In the circumstances, I am not persuaded that the claim should be exempted pursuant to Chapter 14.16.11 of the Guidelines.
73. That leaves the general question of whether this matter is suitable to be assessed at CARS.
74. I am mindful that the Claimant has been delayed in the determination of his case through lengthy LTCS reviews and appeals. There seems no reason why a CARS assessment conference could not be convened before the end of 2016. Were the case to be exempted and court proceedings commenced, a hearing before the end of 2017 would appear unlikely. Rather than a one- or two-day assessment conference at CARS, a court hearing would likely occupy at least a week and the costs would be vastly more than are likely to be incurred in a CARS assessment hearing, particularly as recoverable costs at CARs are heavily regulated.
75. I accept that there are likely to be issues of credit in this case about which the Claimant is entitled to be asked questions. Such issues and questioning are commonplace at CARS assessments. Now that the possibility of a second LTCS application has been laid to rest, the need for worn evidence and a transcript has diminished markedly.
76. I also accept that there will be issues of inconsistency that need to be dealt with, but I am confident that those can be addressed fairly and comprehensively within the context of a CARS assessment conference. Inconsistency of evidence is an extremely common feature of many assessment hearings. Having had experience of personal injury claims, including catastrophic claims, over the past forty years, it is my observation that it is rare for all evidence to coincide exactly and that inconsistencies, especially when recorded in medical reports, often reflect the history taker rather than the history giver.
77. The Insurer refers to the need to call doctors to give evidence. Such is not unknown at CARS and can be accommodated, either in person or by teleconference. At this stage, not having seen the Insurer's medical evidence, it is impossible for me to know what issues there are that might require a doctor to be questioned. The Insurer has not indicated which doctors would need to be called, except in relation to the issue of the Claimant's entry into the LTCS Scheme. That issue has now been finally determined and will not be revisited.
78. Having regard to all the foregoing, it is my view that this case is suitable for assessment at CARS and I decline to recommend that it be exempted." (emphasis in original)
I will return to address these passages shortly but at this point I note three matters.
First, paragraph 72 of the reasons picks up the theme of the statement made earlier by the Assessor in response to the NRMA's application. The reference to the statements to the LTCS panel and Dr Bowers is clearly a reference to various statements that were extracted by the NRMA's solicitor in his letter to the Assessor in which Mr Milton was said to have made statements that allegedly minimised the extent of his disabilities and injuries following the accident. The reference to the "statements to the other medical practitioners" picks up that part of the letter from the NRMA's solicitor which asserted that Mr Milton had made various statements to doctors that maximised his injuries and disability as a result of the accident.
Second, the reference in paragraph 75 of the reasons to "issues of credit in this case" is clearly the reference to the material that was put by the NRMA alleging that Mr Milton had made a number of inconsistent statements.
Third, similarly, the reference in paragraph 76 to there being "issues of inconsistency" is also a reference to the statements that the NRMA asserts amount to inconsistent statements by Mr Milton about his injuries and disabilities.
[3]
NRMA's Challenge
The basis upon which the NRMA challenges the Assessor's decision is set out in paragraph 6(a) of an Amended Summons that was filed in Court on 20 October 2016. Paragraph 6(a) pleads as follows:
"The First Error - the assessor erred in her reasons for decision (the first decision) at [23], [24], [58], [59], [69], [71], and [73] in that she wrongly determined that the plaintiff needed to identify 'with precision' which of the first defendant's inconsistent statements were false and misleading. In circumstances where the plaintiff had fully particularised the patent inconsistencies 'capable of calling into question the reliability' of the first defendant's claims of disability (see Insurance Australia Ltd t/as NRMA Insurance v Banos [2013] NSWSC 1519 at [39]) the assessor misdirected herself in determining that the plaintiff was required to identify which of the inconsistent statements were false or misleading. The assessor was only required to determine whether the claim was suitable for assessment in accordance with section 92(1)(b) of the Act, applying section 117 of the Act and/or clauses 14.16.11 and 17.3 of the MAA's Claim Assessment Guidelines. In determining that the plaintiff's failure to identify which of the statements was false or misleading was fatal to the application for exemption, the assessor:
(i) failed to take into account a relevant consideration;
(ii) constructively failed to exercise jurisdiction because the statutory power was not exercised according to its terms; and
(iii) asked the wrong question in a manner which affected the exercise of power." (emphasis in original)
It can be seen that the ground, as pleaded, invokes the passage from the judgment of Campbell J in Banos at [39] that I have already addressed. Consistent with how this ground of review is pleaded, the written submissions in support of the NRMA's application contend that the Assessor erred in treating the failure of the NRMA to identify which of Mr Milton's statements that it identified were false and misleading as "fatal" to its application for an exemption. The NRMA contended that by so reasoning, the Assessor failed to ultimately address its reliance on clause 14.16.11 and thus failed to take into account a relevant consideration specified by that clause, constructively failed to exercise its jurisdiction and asked the wrong in question in a manner which affected the exercise of her powers.
The essence of the claim was put in writing as follows:
"The effect of the assessor's approach is that the very substance of the Plaintiff's particular justifying exemption has not been dealt with by the assessor, because the assessor has found that the issue need not be determined in circumstances where the plaintiff has not identified which of a catalogue of inconsistent statements, which cannot stand together, are false and misleading." (emphasis in original)
It is unnecessary to determine whether, in and of itself, clause 14.16.11 of the Guidelines truly identifies a mandatory consideration in the sense discussed by Mason J in Minister for Aboriginal Affairs v Peko-Wallsend [1986] HCA 40; (1986) 162 CLR 24 at pp 41 to 42. The opening words to clause 14.16 restate what is otherwise implicit in s 92(1)(b) of the MAC Act, namely, that the Assessor is required to consider the circumstances of the claim. On one view, the balance of the provision simply identifies particular features that such a claim "may include". However, in this case, it is clear that the NRMA pitched its request to the Assessor for exemption by reference to clause 14.16.11, and the Assessor was required to respond to the claim as made (see Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26; 77 ALJR 1088 at [24]).
However, that said, a reading of the Assessor's reasons reveals that she did not approach the exemption application in the manner asserted by the NRMA. Instead, throughout, the Assessor remained focussed on the statutory test and specifically whether the allegations made by the NRMA were such that the matter was not suitable for assessment under Part 4.4 of the MAC Act.
As I have already explained, nothing in Part 4.4 or the Guidelines specifies that the mere making of an allegation that a claimant has made a statement of the kind referred to in clause 14.16.11 means the matter is per se not suitable for assessment. To the contrary, it is clear that some form of evaluative assessment is required or at least permissible, albeit one that does not involve the Assessor determining whether, as a matter of fact, the relevant statement was made and made untruthfully (Banos).
As the notation to clause 14.16.11 indicates, as part of that evaluative assessment, the Assessor can require particulars of the allegation to be provided so as to allow the Assessor to consider the significance of the alleged mis‑statement in the context of the case as a whole. In this case, despite repeated requests, the NRMA declined to identify which of the statements were misleading and consequently did not identify in what respect or respects they were misleading.
The position of the Assessor was that, in the absence of that specification, she was unable to assess whether NRMA was truly alleging that Mr Milton had engaged in a wholesale exaggeration of the level of his disabilities to increase his level of damages, and if so, to what extent, on the one hand, or whether he was alleging that he had understated his disabilities in the past as part of his attempt to avoid being part of the LCS scheme, on the other. If the position was not the former but only the latter, then, and while others may disagree, it was clearly open to the Assessor to consider that, at most, what was being complained about was a series of inconsistent statements which could be addressed within the CARS assessment process. To that end, the Assessor addressed the suitability of a CARS assessment process to deal with asserted inconsistencies in paragraphs 75 to 77 of her reasons.
Those parts of the reasons revealed that the Assessor did address and consider the statutory test as she was required to do. As the NRMA declined to identify which of the statements were misleading and why, then all the Assessor considered she was left with was a series of asserted inconsistencies in medical histories which, in the Assessor's experience, was "an extremely common feature of personal injury claims" and could be more than adequately dealt with in a CARS assessment.
Ultimately, as Banos makes clear, that determination was one for the Assessor to make. In this context it is to be remembered that, while the possibility that Mr Milton had deliberately understated his level of disabilities during the LCS process was a matter that may have been, and at the time of the assessment process still appeared to be, of great interest to the NRMA, except to the extent it affected Mr Milton's reliability it was of no great significance to the performance by the Assessor of her functions. As I have explained, like any other administrative decision-maker, the Assessor was obliged by s 16 of the LCS Act to treat the Review Panel's findings as final, especially in circumstances where the challenge to the decision had ultimately been rejected by the Court of Appeal. In that regard, the Assessor had specifically invited the NRMA's solicitor to identify the legal basis upon which a further application could be made to challenge the refusal to admit Mr Milton to the LCS scheme and declined to do so. As I have stated, the Assessor extracted the exchange on that very topic in her reasons.
At this point, it is appropriate to address a number of points made during oral submissions by Counsel for the NRMA, Mr Fitzsimmons. First, Mr Fitzsimmons submitted that it was neither incumbent upon nor unreasonable for the NRMA to adopt the position that it did and that it could not and should not have been required to identify which of statement or set of statements of Mr Milton were false.
Mr Fitzsimmons submitted that it was sufficient for his client to contend that at least some of them were false. He also submitted that their materiality was borne out by the observation of Campbell J in Banos at [37] as follows:
"The matters relied upon by the insurer to found its application for discretionary exemption are the very type of thing inherently capable of founding a successful cross-examination as to the credit of a claimant. By credit I am referring to the claimant's reliability and honesty as an accurate medical historian. In personal injuries litigation this question will often be fundamental to the determination by the court or tribunal of the nature and extent of the injuries and disabilities caused by the negligence of the defendant."
In his submissions, Senior Counsel for Mr Milton, Mr Rewell SC, contended that the NRMA's refusal to specify which statement or set of statements that it identified were false was a forensic tactic that it employed because it sought to both preserve the argument that Mr Milton had exaggerated his disabilities to increase his damages but also sought to leave open the possibility of asserting that he deliberately understated them to extricate himself from the LCS scheme.
At this point of the analysis, however, the relevant issue is not whether the NRMA acted unreasonably or not. Instead, the only relevant issue is whether the Assessor posited and applied the correct test. It is to be remembered that there is no challenge to the decision of the Assessor on the basis of unreasonableness.
The Assessor clearly was entitled to ascertain the "general nature of the allegations" of false and misleading statements under clause 17.13 of the Guidelines, including by making an inquiry of the NRMA as to what respect or respects the various statements were false or misleading. Having received no answer to that question, the Assessor determined in this case that she could not conclude that the matter was unsuitable for assessment. The Assessor so reasoned because all she was advised by the NRMA was that there were inconsistent statements but no more, and she addressed the suitability of the CARS assessment process to deal with those statements at paragraphs 74 to 77 of her reasons. Otherwise, nothing in those paragraphs suggest that the Assessor was not cognizant of the observation of Campbell J in Banos at [37] as to the materiality of matters affecting the reliability of Mr Milton. As I have said, there is no challenge to the Assessor's determination on grounds of unreasonableness. No error has been demonstrated in the Assessor's approach in terms of her positing or applying the correct test.
Second, in the course of his submissions, Mr Fitzsimmons contended that the Assessor's reasons revealed that by the end of [72] of her reasons she had rejected and, he contended, effectively ignored the suggestion that the matter should be exempted because of the making of an allegation of a false and misleading statement by Mr Milton. He submitted that what the Assessor said in the balance of her reasons does not relate to that topic, but instead, was solely concerned with the question of the general suitability of the matter for assessment.
The reasons of the administrative decision-maker are not to be "scrutinised upon" in "overzealous judicial review" (Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; [1996] 185 CLR 259 at 272). In this case, that means that when one scrutinises the Assessor's reasons for rejecting the NRMA's application that the matter should be exempted, one does not construe them as though the matters addressed by the Assessor in paragraphs 75 to 77 only jumped into the Assessor's mind at some point after she recorded the conclusion in paragraph 72. Instead, the reasons are to be considered as a whole such that, when the Assessor determined that the claim that a false and misleading statement was made did not render the matter unsuitable for assessment, she did so cognizant of the fact that NRMA's suggestion that Mr Milton had made a number, perhaps numerous, inconsistent statements was a matter that could be dealt with in a CARS process for the reasons explained at paragraphs 75 to 77.
Third, in his submissions, Mr Fitzsimmons deployed the following passage from the judgment of Campbell J in Banos at [43] as illustrative of what was required by the Assessor in this case:
"When deciding the statutory question in a case that turns upon whether a person has made a false and misleading statement, the following considerations are likely to be relevant. I do not mean to be exhaustive:
(a) the Act contemplates that the great majority of disputes will be resolved by the assessment process, and not in court;
(b) however, the consideration that s.92 provides for both mandatory exemptions and discretionary exemptions provides a clear legislative guidepost that appropriate cases should be "redirected" to the court system at an early time by way of preliminary determination;
(c) a primary question will be, having regard to the nature of the issue raised, whether both parties can be afforded a hearing (assessment conference) which is in a practical sense fair having regard to the nature of the allegation raised;
(d) a related question will be which mode of hearing will resolve the dispute more efficiently and effectively, bearing in mind the comparative limitations and advantages of an assessment conference on the one hand, and a court hearing on the other. Advantages of the latter may include a better opportunity for proper and fair cross-examination of witnesses whose credit is to be impugned and the greater availability of cross-examination of medical experts on the material which may call a claimant's reliability into question;
(e) as it is clear the claimant's credit will be called into question, a consideration of whether it is in the public interest that such an examination occur in open court;
(f) Finally, but by no means least, the consideration that it is not mandatory, whenever a credit issue is raised, to decide that the claim is not suitable for assessment under Part 4.4."
I do not understand his Honour's observations to amount to some form of prescription of the process the Assessor must adopt or the factors an Assessor must address in considering an application for exemption under s 92(1)(b). In any event, in his submissions, Mr Rewell SC submitted that the Assessor's approach was consistent with these observations. I accept that submission. Specifically, there is nothing to suggest that the Assessor approached the matter in anything other than conformity with the statements made by his Honour in Banos at [43(a)], [43(b)] and [43(f)]. Further, in paragraphs 75 to 77 of her reasons, the Assessor addressed the matters adverted to in Banos at [43(c)] to [43(e)] of this extract. In that regard, and as Mr Rewell SC noted, there was no suggestion before the Assessor that there was some relevant witness who was not willing to attend and thus could not be subpoenaed to attend the CARS assessment hearing.
Finally, it is necessary to return to the pleaded grounds of review. The Assessor did not fail to take into account a relevant consideration, namely, the allegation that Mr Milton had made a false and misleading statement. To the contrary, assuming that was a relevant consideration in the strict sense, the Assessor did take it into account but determined that, in the absence of further detail, she was not satisfied that it rendered the matter unsuitable for assessment. Otherwise, for the reasons already stated, it has not been shown that the Assessor failed to apply the correct test.
It follows that the pleaded ground fails and the Amended Summons must be dismissed.
This conclusion renders it unnecessary to address the various discretionary bases which Mr Rewell SC submitted would otherwise warrant the refusal of relief.
[4]
Direction Under Section 100
On 6 October 2016 the NRMA filed a Notice of Motion in which prayer 1 sought relief in respect of certain directions made by the assessor under s 100 of the MAC Act. This part of the Notice of Motion was stood over to today's hearing. In argument, Mr Fitzsimmons confirmed that no separate submission was put in support of that part of the Notice of Motion separate to the attack upon the Assessor's decision of 25 August 2016. I otherwise note that no suggestion was raised before me that there was any outstanding non-compliance with the NRMA of any such direction. It follows that the Notice of Motion will have to be dismissed.
[5]
Orders
Accordingly, the Court orders:
(1) The Amended Summons filed 20 October 2016 be dismissed.
(2) The plaintiff's Notice of Motion filed 6 October 2016 be otherwise dismissed;
(3) The plaintiff pay the first defendant's costs.
[6]
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: 31 October 2016
Parties
Applicant/Plaintiff:
Insurance Australia Limited t/as NRMA Insurance Limited
Part 4.4 of the MAC Act deals with claims assessment and resolution. Division 1A of Part 4.4 provides a scheme for the exchange of settlement offers prior to referral for assessment. If this process is unsuccessful s 90 of the MAC Act enables a claim to be referred by the Motor Accidents Authority for a CARS assessment. If a claim proceeds to assessment then, in a case such as the present where the insurer accepts liability, the Assessor must assess the amount of damages being the amount a court would be likely to award for the claim (s 94(1)(b)).
To reflect the assessment the Assessor is required to issue a certificate (MAC Act; s 94(4)). Section 95(2) provides that an assessment of damages is binding upon the insurer and must be paid if the insurer accepts liability, which in this case it does, and if the claimant, that is, Mr Milton, accepts the assessment. Section 95(2A) requires that the relevant amount must be paid within the period prescribed by the regulations made under the MAC Act. It is a condition of an insurer's licence to provide compulsory third party insurance that it complies with that obligation to pay (MAC Act; s 95(3)).
Three matters in particular should be noted about the scheme. First, the assessment of damages under s 94(1)(b) must be undertaken having regard to the various provisions regulating awards of damages found in Chapter 5 of the MAC Act. One of those provisions is s 141A of the MAC Act which refers to the Motor Accidents (Lifetime Care and Support) Act 2006 (NSW) (the "LCS Act"). Section 141A provides:
"141A No damages relating to treatment and care needs for Lifetime Care and Support Scheme participants
(1) No damages may be awarded to a person who is a participant in the Scheme under the Motor Accidents (Lifetime Care and Support) Act 2006 in respect of any of the treatment and care needs of the participant, or any excluded treatment and care needs, that relate to the motor accident injury in respect of which the person is a participant in the Scheme and that arise during the period in which the person is a participant in the Scheme.
(2) This section applies:
(a) whether or not the treatment and care needs are assessed treatment and care needs under the Motor Accidents (Lifetime Care and Support) Act 2006, and
(b) whether or not the Lifetime Care and Support Authority is required to make a payment in respect of the treatment and care needs concerned, and
(c) whether or not the treatment, care, support or service (provided in connection with treatment and care needs) is provided on a gratuitous basis.
(3) In this section, 'treatment and care needs' and 'excluded treatment and care needs' have the same meanings as they have in the Motor Accidents (Lifetime Care and Support) Act 2006.
The significance of this provision to this matter is that, as I will explain, the background to the application for the exemption was that the NRMA had applied to make Mr Milton a participant in the scheme created by the LCS Act (the "LCS Scheme") but was unsuccessful. At this point it suffices to note that the use of the present tense in s 141A(1) is significant when a Claims Assessor makes a determination under s 94(1)(b) of the MAC Act. In that circumstance the only issue relevant to s141A for the Assessor is whether at that point in time the injured person "is" a participant in the LCS Scheme. Under a CARS Assessment, damages are "awarded" when an Assessor issues a certificate under s 94. If subsequent to that a claimant enters the LCS Scheme it will not affect the certificate.
More significantly, in cases such as this where a Review Panel acting under the LCS Act has determined the question of whether a person such as Mr Milton is eligible for acceptance into the LCS Scheme, then an Assessor acting under the MAC Act is bound by that outcome because of s 16 of the LCS Act. Section 16 provides:
"The determination of an Assessment Panel (or of a Review Panel on the review of an Assessment Panel's determination) as to whether a motor accident injury satisfies criteria specified in the LTCS Guidelines for eligibility for participation in the Scheme is final and binding for the purposes of this Act and any proceedings under this Act".
Second, Division 3 of Part 4.4 of the MAC Act deals with the powers available to Claims Assessors in making assessments and the procedures for making such assessments. Section 101 empowers an Assessor to give a direction in writing to a party to an assessment to, inter alia, produce documents and furnish specified information. Section 100(2) provides that a party who fails without reasonable excuse to comply with such a direction is guilty of an offence. As I will explain, one matter referred to by the Assessor in her reasons for refusing the NRMA's exemption application concerned its failure to comply with such directions.
Further, in its written submissions the NRMA referred to various features of the CARS assessment process that it contended rendered it unsuitable to deal with Mr Milton's claim or at least unsuitable when compared with the procedures adopted by a court.
Section 104 of the MAC Act confers various rights of representation on parties in proceedings before a CARS assessor.
Leaving that aside, the proceedings before an Assessor are generally regulated by the Motor Accidents Authority Claims Assessment Guidelines made under s 69(1) of the MAC Act (the "Guidelines"). Those parts of the Guidelines concerning the procedures for CARS assessments make provision for a less formal procedure than that adopted by a court and vests control in the conduct of the proceedings in the Assessor in a manner more akin to inquisitorial proceedings than adversarial proceedings. Nevertheless, clause 15.4.3 of the Guidelines enables the Assessor to allow a party's legal representative to examine (and thus cross-examine) a witness or a party.
That said, in its written submissions the NRMA noted that there was no power available to an Assessor to subpoena individuals to attend a CARS assessment other than a summons compelling a party to attend; there was no power to compel medical experts to attend to give evidence; there was no power to administer an oath to a witness to tell the truth; and, the proceedings before a CARS Assessor, that is, the hearings, are not recorded and therefore there is no transcript.
These matters can be accepted although in this case it should be noted that there was no suggestion made to the Assessor that any relevant witness in the matter was not prepared to attend the CARS assessment. It is also not suggested that the Assessor was otherwise ignorant of the relevant differences between the CARS assessment process and a court process.
Third, of particular relevance to this application is the power of an Assessor to exempt a matter from the claims assessment process.
Section 92(1) of the MAC Act provides:
"A claim is exempt from assessment under this Part if:
(a) the claim is of a kind that is exempted under Motor Accidents Claims Assessment Guidelines or the regulations, or
(b) a claims assessor has made a preliminary assessment of the claim and has determined (with the approval of the Principal Claims Assessor) that it is not suitable for assessment under this Part".
Clause 8.11 of the Guidelines specifies the types of claims that are exempt for the purposes of s 92(1)(a). One of the types of those claims is where:
"[T]he insurer alleges that the claim is a fraudulent claim in terms of the circumstances of the accident giving rise to the claim."
Clauses 14.11 to 14.16 deal with assessments made by Assessors under s 92(1)(b). Clause 14.12 enables an Assessor to make a preliminary determination that a claim is not suitable for assessment on their own initiative or upon application by the claimant or the insurer or both at any time during the course of the assessment. In this case the application for exemption came from the insurer.
Clauses 14.13 to 14.15 deal with the interaction between determinations by an Assessor and approvals of those determinations by the Principal Claims Assessor. Of particular relevance to this matter is clause 14.16 which relevantly provides:
"In determining whether a claim is not suitable for assessment, an Assessor and the [Principal Claims Assessor] shall have regard to the circumstances of the claim as at the time of consideration of the claim. This may include, but is not limited to:
…
14.16.11 whether the insurer makes an allegation that a person has made a false or misleading statement in a material particular in relation to the injuries, loss or damage sustained by the claimant in the accident giving rise to the claim.
(Note: If an insurer makes an allegation of 'fraud' in terms of the circumstances of the accident, the matter will be exempt under section 92 (1) (a) and clause 8.11.6. If an insurer makes an allegation that a person has made a false or misleading statement in a material particular in relation to the injuries, loss or damage sustained by the claimant in the accident, the insurer may be required to provide particulars in writing of the general nature of any such allegation under clause 17.13, and an Assessor may then consider whether a matter is not suitable for assessment under clause 14.11 to 14.16, particularly in light of clause 14.16.11.)
The reference in the notation at the end of clause 14.16 to clause 17.13 of the Guidelines is to the following provision:
"If during the course of an assessment by an Assessor, or the determination by the [Principal Claims Assessor] of an application for exemption, a party makes an allegation that a person has made a false or misleading statement in a material particular in relation to the injuries, loss or damage sustained by the claimant in the accident giving rise to the claim, the Assessor may require that party to give to the other party and the Assessor particulars in writing of the general nature of any such allegation (but not necessarily the evidence or proof of same) sufficient to enable the Assessor to determine whether or not the claim is suitable for assessment in accordance with the provisions in clauses 14.11 to 14.16."
The written submissions of the parties referred to two decisions of this Court addressing complaints of error on the part of an Assessor considering an application for exemption under s 92(1)(b) of the MAC Act by reference to the issue raised by clause 14.16.11, namely, Allianz Australia Limited v Tarabay [2013] NSWSC 141; 62 MVR 537 ("Tarabay") and Insurance Australia Limited t/as NRMA Insurance v Banos [2013] NSWSC 1519 ("Banos").
Each of Tarabay and Banos are authority for the proposition that it is "erroneous", presumably in the sense of amounting to jurisdictional error, for an Assessor considering an exemption application to make a determination as a matter of fact that a particular claimant has or has not made a false or misleading statement and whether, if made, it was deliberate or otherwise (see Tarabay at [65] to [67]; Banos at [35] and [38]). In particular, in Banos at [38] to [39] Campbell J stated:
"38 As Rothman J pointed out in Tarabay it is erroneous for a claims assessor, called upon to determine the question raised by s.92(1)(b) - that is whether the claim "is not suitable for assessment under" Part 4.4 - to decide for himself or herself in the context of that preliminary assessment whether the impugned statements are in fact false or misleading; whether the histories proffered are accurate; whether the claimant's presentation to doctors, and on other occasions, is consistent with the alleged injuries; whether apparent discrepancies are likely to have an innocent explanation; and whether or not the claimant's account of her injuries and disabilities should be believed.
39 There may be cases, difficult to conjure in the abstract, where a claims assessor making a preliminary assessment to determine, inter alia, whether the claim is not suitable for assessment could find as a matter of law that a proffered statement or alleged inconsistency was not capable of calling into question the reliability of the claimant's account. But such cases must necessarily be very rare. The present case, in my judgment, certainly did not fall into that category. As I have said, the matters raised by the insurer were the very type of matters which are commonly afforded significant weight in the process of assessing the nature and extent of a claimant's injuries and disabilities, particularly when, as they appear to be here, they are soft tissue in nature and not wholly susceptible to entirely independent and objective evaluation."
The proposition stated in [38] of Banos which conforms with Tarabay can be accepted. However, that does not mean, and s 92(1) itself does not support any suggestion, that the Assessor should not undertake some evaluation of the allegation of the making of a false and misleading statement in order to determine if the allegation is such that overall the claim is not suitable for a CARS assessment.
Ultimately, the test to be applied is that stated in s 92(1)(b) of the MAC Act. Nothing in s 92(1)(b) or the Guidelines suggest that the mere making of an allegation by an insurer of the making of a false and misleading statement, even one that is fully particularised, necessarily leads to a conclusion the claim is not suitable for assessment. To the contrary, the notation to clause 14.16.11 suggests that the Assessor is able to, and perhaps should, obtain particulars of the allegation as part of an evaluation of whether the making of the allegation warrants the conclusion that the matter is or is not suitable for assessment.
In this regard I do not understand the statement in Banos at [39] to suggest that, unless an Assessor came to a conclusion "as a matter of law" that an alleged mis-statement did not call into question a claimant's reliability, the Assessor had to determine that the matter was not suitable for assessment. In fact, the contrary is suggested in the statement by Campbell J in Banos at [43] to which I will return.