Disposition
32I have decided that the claims assessor's decision refusing discretionary exemption is tainted by jurisdictional error, but that her refusal to disqualify herself is not.
33I accept the argument of the claimant that the supervisory jurisdiction should be attended by an appropriate, legal restraint. Quite obviously its exercise does not provide the occasion for anything in the nature of merits review: Attorney General (NSW) v Quin [1990] HCA 21; 170 CLR 1 at 35-6 per Brennan J.
34In the present case it is sufficient that I remind myself of the following exposition of principle by McHugh, Gummow and Hayne JJ in Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; 206 CLR 323 at 531[82]:
It is necessary, however, to understand what is meant by "jurisdictional error" under the general law and the consequences that follow from a decision-maker making such an error. As was said in Craig v South Australia [(1995) 184 CLR 163 at 179], if an administrative tribunal (like the Tribunal)
"falls into an error of law which causes it to identify a wrong issue, to ask itself a wrong question, to ignore relevant material, to rely on irrelevant material or, at least in some circumstances, to make an erroneous finding or to reach a mistaken conclusion, and the tribunal's exercise or purported exercise of power is thereby affected, it exceeds its authority or powers. Such an error of law is jurisdictional error which will invalidate any order or decision of the tribunal which reflects it."
"Jurisdictional error" can thus be seen to embrace a number of different kinds of error, the list of which, in the passage cited from Craig, is not exhaustive. Those different kinds of error may well overlap. The circumstances of a particular case may permit more than one characterisation of the error identified, for example, as the decision-maker both asking the wrong question and ignoring relevant material. What is important, however, is that identifying a wrong issue, asking a wrong question, ignoring relevant material or relying on irrelevant material in a way that affects the exercise of power is to make an error of law. Further, doing so results in the decision-maker exceeding the authority or powers given by the relevant statute. In other words, if an error of those types is made, the decision-maker did not have authority to make the decision that was made; he or she did not have jurisdiction to make it. Nothing in the Act suggests that the Tribunal is given authority to authoritatively determine questions of law or to make a decision otherwise than in accordance with the law.
35As explained by Rothman J in Tarabay at 550 [65] - [67], the claims assessor fell into jurisdictional error when she determined as a concluded fact that the claimant had not deliberately, or knowingly, made false or misleading statements as particularised by the insurer. As Rothman J explained in Tarabay at [65], "that was not an issue before the assessor. Far more fundamentally, it is not an issue that could be decided before a full hearing on the question of the 'fraud'". Rothman J continued:
[66] The only proceeding heard by the Assessor was an interlocutory proceeding in which the task of Allianz was not to prove the fraud alleged but to satisfy the Assessor, on the basis of an allegation, reasonably put, of fraud so that the matter was not one that should be heard in a CARS assessment.
[67] The Assessor asked herself the wrong question and answered it. In doing so she has reached a concluded view as to the substance of the matter alleged, without having heard the parties in full on the issue. In so doing, the Assessor has issued a decision vitiated by jurisdictional error and error of law on the face of the record: Craig v South Australia; Minister for Immigration and Multicultural Affairs v Yusuf (references to Craig and Yusuf omitted).
36This determination vitiates the conclusions expressed at [7], [9] and [13] of the claims assessor's reasons and in my judgment invalidates her whole decision. The same conclusion probably demonstrates that what was said at [14] was affected by jurisdictional error when the claims assessor found that the inconsistency in presentation demonstrated by the video surveillance "is not in my opinion the basis of an allegation of false and misleading statements".
37The 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.
38As 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.
39There 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.
40I would also observe in passing that the claims assessors' statement (at [12] of her decision) that "it is a matter for the medical assessor to accept or reject symptoms described by patients" is contrary to a series of decisions of this Court, and more significantly the Court of Appeal. A medical certificate is conclusive only of the matters certified (s.61(2)), which are limited to the "medical assessment matters" specified in s.58 of the Act: Allianz Australia Insurance Ltd v Girgis [2011] NSWSC 1424; 59 MVR 548; Rodger v De Gelder [2012] NSWCA 167; 61 MVR 140 at [9]; Brown v Lewis [2006] NSWCA 87, 65 NSWLR 587 at [23]; Motor Accidents Authority (NSW) v Mills [2010] NSWCA 82, 78 NSWLR 125; 55 MVR 243 at [57] - [69], [91] and [102]; Owen v Motor Accidents Authority (NSW) [2012] NSWSC 650; 61 MVR 245 [32] - [36]. As the claims assessors' decision was not impugned on this basis, I leave that consideration to one side.
41As clause 14.16 of the claims assessment guidelines suggest, a claim may not be suitable for assessment for a variety of reasons. Clause 14.16 provides eleven examples of considerations that may be taken to be relevant to the claims assessor's decision. Clearly it is not incumbent upon the claims assessor to consider each one of those matters in every case in which s.92(1)(b) is invoked. Rather, the function of the claims assessor requires him or her to bear firmly in mind at all times the statutory question, which, I reiterate, is whether the claim is not suitable for assessment under Part 4.4 of the Act. Naturally, in deciding the matter he or she is required to weigh and assess such of the clause 14.6 grounds, if any (and the question is not limited to those considerations), as the parties may invoke.
42In a case like the present, where only clause 14.16.11 is invoked, the claims assessor will fall into jurisdictional error if he or she purports to decide whether the claimant, or some other person, has in fact made a false or misleading statement in a material particular in relation to the injuries, loss or damage sustained by the claimant; at least except in the rarest of cases where it is so clear that a person has not made such a false or misleading statement as to be beyond argument. As Rothman J pointed out, a determination that a person has in fact made a false or misleading statement may only properly be made after what I will refer to as a full hearing on the merits during which the person whose statements are impugned has been given a fair opportunity to meet the allegations in accordance with the requirements of the rule in Browne v Dunn (1893) 6 R 67, or its administrative law equivalent where applicable cf Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S154/2002 [2003] HCA 60; 77 ALJR 1909 at [56] - [57].
43When 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.
44I would wish to add that one should not overlook that the Principal Claims Assessor is required to approve a claims assessor's decision to exempt a claim as not suitable. One would not envisage that approval would be too readily withheld. It is not necessary to consider the scope of this power or factors relevant to its exercise here but principle suggests that mere difference of opinion would be an insufficient basis for the refusal of approval. But the requirement of approval may be an important check on discretionary exemptions themselves being too readily granted. As I have said claims assessors have a duty to assess claims allocated to them.
45For these reasons I am of the view that the insurer is entitled to the relief sought.
46It is not strictly necessary for me to consider the bias argument to resolve the case. But as the point has been argued and I have formed a view, adverse to the insurer as it happens, it is appropriate that I express my reasons for this conclusion, albeit briefly.
47The only ground of objection advanced in this Court was the ground of apprehended bias. But as I have said, that objection was not taken before the assessor. As it was put by Gleeson CJ, Heydon and Crennan JJ in Smits v Roach [2006] HCA 36, 227 CLR 423 at 439 [43]:
It has been held in this Court, on a number of occasions, that an objection to the constitution of a court or tribunal on the ground of apprehended bias may be waived, and that, if a litigant who is aware of the circumstances constituting a ground for such objection fails to object, then waiver will result. [Emphasis added].
48In the present case, the insurer's solicitors knew that the claims assessor had assessed the prior claim and were in possession of a copy of the decision in which, on any fair reading of it, the claims assessor made a finding favourable to the claimant of her reliability as a witness in relation to the nature and extent of her injuries and disabilities. Notwithstanding these considerations, the solicitors expressly disavowed any reliance upon any aspect of prejudgment. Rather, because there is typically no recording or transcript of assessment conferences, the insurer, through its solicitors, said it would be at a disadvantage because the assessor might have acquired relevant knowledge unavailable to the insurer, which may come to the assessor's mind because of a previous familiarity with the case during the assessment conference for the current claim. In my judgment, the insurer waived any objection which may have been available on the ground of bias.
49If I am wrong about waiver, there are two matters which tell against the insurer's argument. First, as Rothman J observed in Abraham, the consideration that the assessor may have been favourably impressed with a claimant in the prior assessment conference falls into a category different from a previous adverse finding as to credit: Australian National Industries Ltd v Spedley Securities Ltd (1992) 26 NSWLR 411 and Livesey v NSW Bar Association [1983] HCA 17, 151 CLR 288. An adverse impression, once formed, may be difficult to shake; a favourable impression may always be shifted by the production of compelling, contrary proofs.
50Secondly, because no assessment conference has yet been undertaken, I would on discretionary grounds not make an order in the nature of prohibition in respect of a point not expressly raised before the tribunal.
51It is not appropriate in the circumstances for me to consider whether the reformulation of the apprehended bias test for inquisitorial tribunals suggested in Ex parte H applies to CARS.
52An argument based upon an infringement of the "hearing rule" aspect of the rules of natural justice was not maintained in this Court. Nor do I think it could have been. It was always the practice of the former Workers' Compensation Commission of New South Wales and its successor, the Compensation Court, when an existing award fell to be reviewed, reconsidered or terminated to assign the matter to the judicial officer who made the original award if he or she remained available. This practice obviously involved certain efficiencies, but considerations of efficiency cannot trump fundamental principle. But so far as I recall, it was never suggested that the procedure involved an infringement of the rules of natural justice. I accept that the present case is somewhat different in that the insurer was not a party to the prior assessment. But there is no rule per se disentitling a judge or tribunal member from considering a second case involving the same litigant.