Insurance Australia Limited trading as NRMA Insurance (000 016 722) v Motor Accidents Authority of New South Wales & 2 Ors; Kelly v Motor Accidents Authority of New South Wales & Anor

Court of Appeal (NSW)|2007-10-23|Before: Spigelman CJ, Beazley JA, Giles JA, Rothman J

CITATION: Insurance Australia Limited trading as NRMA Insurance (000 016 722) v Motor Accidents Authority of New South Wales & 2 Ors; Kelly v Motor Accidents Authority of New South Wales & Anor [2007] NSWCA 314

JUDGMENT OF: Spigelman CJ at 1; Beazley JA at 62; Giles JA at 63

DECISION: Each appeal should be dismissed with costs.

LEGISLATION CITED: Motor Accidents Compensation Act 1999, s5, s92(1)(b), s94(1)(a), s95, s117

Balog & Stait v Independent Commission Against Corruption (1990) 169 CLR 625 Centro Properties Limited v Hurstville City Council (2004) 135 LGERA 257 Evans v Marmont (1997) 42 NSWLR 70 Parramatta City Council v Hale (1982) 47 LGRA 319 CASES CITED: R v Hunt; Ex parte Sean Investments Pty Limited (1979) 180 CLR 322 The Queen v Toohey; Ex parte Meneling Station Pty Limited (1982) 158 CLR 327 Weal v Bathurst City Council (2000) 111 LGERA 181 Zhang v Canterbury City Council (2001) 51 NSWLR 589 Zurich Australian Insurance Limited v Motor Accidents Authority of New South Wales [2006] NSWSC 845

40049/07 Insurance Australia Limited t/as NRMA Insurance (000 016 722) (Appellant) Motor Accidents Authority of New South Wales (First Respondent) Mahmoud Khateib (Second Respondent) PARTIES: Gary Patterson (Third Respondent)

40050/07 Graham Kelly (Appellant) Motor Accidents Authority of New South Wales (First Respondent) Ulrike Hoerning (Second Respondent)

40049/07 J E Griffiths SC, M Allars (Appellant) K Rewell SC, J A Jobson (Respondent) COUNSEL: 40050/07 J E Griffiths SC, M Allars (Appellant) K Rewell SC, C D Jackson (Respondent)

40049/07 Hunt & Hunt (Appellant) Motor Accidents Authority of New South Wales (First Respondent) Milicevic, Solicitors (Second Respondent) SOLICITORS: Shaw MacDonald, Solicitors (Third Respondent)

40050/07 Sparke Helmore (Appellant) I V Knight, Crown Solicitor (First Respondent) Keddies Solicitors (Second Respondent)

LOWER COURT JURISDICTION: Supreme Court

LOWER COURT FILE NUMBER(S): 30090 of 2006 30065 of 2006

LOWER COURT DATE OF DECISION: 22 December 2006

30090 of 2006: Insurance Australia Limited t/as NRMA Insurance v Motor Accidents Authority of New South Wales and Mahmoud Khateib [2006] NSWSC 1448 LOWER COURT MEDIUM NEUTRAL CITATION: 30065 of 2006: Graham Kelly v Motor Accidents Authority of New South Wales & Anor [2006] NSWSC 1444

18 - IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL 40049/07 40050/07

SPIGELMAN CJ BEAZLEY JA GILES JA

Thursday 8 November 2007 INSURANCE AUSTRALIA LIMITED t/as NRMA INSURANCE (000 016 722) v MOTOR ACCIDENTS AUTHORITY OF NEW SOUTH WALES & 2 ORS KELLY v MOTOR ACCIDENTS AUTHORITY OF NEW SOUTH WALES & ANOR Judgment 1 SPIGELMAN CJ: The Motor Accidents Compensation Act 1999 ("the Act") establishes a scheme for the assessment of damages in motor accident claims. Pursuant to the scheme, the Motor Accidents Authority administers a Claims Assessment Resolution Service in which a Principal Claims Assessor allocates particular matters for assessment to individual Assessors. 2 Each claimant was injured in a motor vehicle accident. In each case ("the Khateib proceedings" and "the Hoerning proceedings", referring to the respective claimants) the insurer accepted liability. The only issue was damages. 3 The legislative scheme also makes provision for the promulgation of guidelines. Such have been published and are known as the Claims Assessment Guidelines (the "Guidelines"). One of the matters for which the Guidelines makes provision, as set out hereafter, is the identification of circumstances in which a particular claim is "not suitable for assessment" by a Claims Assessor. The effect of such a determination is that a claim must be pursued in a court. 4 The Appellant in each case sought judicial review of the refusal by each Assessor to make a determination of unsuitability. Rothman J dismissed each proceeding for reasons that substantially overlapped. Each Appellant appeals to this Court from his Honour's judgment. 5 The directly relevant statutory power exercised by each Assessor is s92(1)(b) of the Act which provides: "92(1) A claim is exempt from assessment under this Part if: … (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." 6 The section implicitly confers a power on an Assessor to "determine" that a particular claim is "not suitable for assessment". Neither Appellant has ever contended that the Assessor did not make "a preliminary assessment" of each claim in accordance with the statutory requirement. 7 The Guidelines make express provision in Ch 7 for the exemption of claims from assessment, relevantly for s92(1)(b): "7.6 For the purpose of section 92(1)(b), an assessor may, in dealing with an application for general assessment and following a preliminary assessment of the claim, determine that the claim is not suitable for assessment. … 7.11 In determining whether a claim is not suitable for assessment an assessor and the PCA shall have regard to the circumstances of the claim as at the time of the preliminary determination including: … 7.11.3 whether the claim involves complex factual issues. 7.11.4 whether the claim involves complex issues of quantum or complex issues in the assessment of the amount of the claim … 7.11.10 whether the insurer makes an allegation that a person has made a false and misleading statement within the meaning of section 117." 8 In both proceedings issues have arisen as to the determination made by the Assessor with respect to the complexity of issues which would arise, being matters that the Assessor was obliged to "have regard to" under par 7.11.3 and 7.11.4 of the Guidelines. In the Khateib proceedings an issue also arises under cl 7.11.10 with respect to allegations that the claimant had made false and misleading statements within the meaning of s117 of the Act. 9 Section 117 relevantly provides: "117 A person who makes a statement knowing that it is false or misleading in a material particular: (a) in an accident notification form under Part 3.2, or (b) in a notice of a claim given to a person or an insurer under Part 4.2, or (c) in the course of the assessment of a claim under Part 4.4, or (d) when otherwise furnishing information to any person concerning a motor accident or any claim relating to a motor accident, is guilty of an offence."

Findings in the Hoerning Proceedings 10 The Assessor in the Hoerning proceedings set a detailed summons of the submissions before him, in the context of giving what he described as a "Preliminary Conference Report". This included reference to submissions by counsel for the insurer on the complexity of the legal issues involved in the assessment of economic loss and the factual complexity of the matters raised in the evidence including a conflict of medical evidence, particularly with respect to orthopaedic and psychological injury on the part of the claimant, and also a conflict in reports of forensic accountants. Reference was also made to what was described as a "significant credibility issue" arising from video surveillance evidence. 11 The Assessor concluded: "It appears to me that the significant issues relate to the extent to which the Claimant has suffered and continues to suffer psychological injury and the impact such has upon her earning capacity. I accept that any calculation of loss of earning capacity will not be straightforward, however I do have the benefit of two competing Forensic Accountant reports which clearly set out the material upon which such calculations have been made and the assumptions that have been made in making those calculations. From my observation of the medical reports this does not appear to be a case that is outside the realms of cases regularly undertaken by Assessors in this jurisdiction. It has also been asserted that this is a case that is likely to involve extensive cross examination of the Claimant and other witnesses over a period of 2 days. The proceedings at the Claims Advisory and Resolution Service are inquisitorial by nature and not adversarial as I disclosed to the parties at the Preliminary Conference. Chapter 13 of the Guidelines provides an Assessor with a discretion to determine the manner in which evidence is presented. Having made a preliminary assessment of the medical and Forensic Accounting evidence and being mindful of those matters contained within Chapter 7 of the Claims Assessment Guidelines, I am of the view that this matter remains suitable for assessment and ought be progressed to an Assessment Conference Hearing next week. I am aware from prior Preliminary Conferences in this matter that the deponents of all four Statements that have been prepared will be available for questioning." 12 In his judgment on this case, Rothman J set out the submissions made before him and also set out the above extract from the reasons of the Assessor. His Honour concluded: "[65] Similarly, it has to be borne in mind that which was to be determined by the Claims Assessor was the complexity of the current claim before him (not every claim) and whether that complexity convinces the Claims Assessor that the matter is not suitable for assessment by that process. [66] As a matter of fact, it cannot be suggested that the complexity of the matters to which reference has been made was not a factor considered, even fundamentally considered, by the Claims Assessor …" 13 His Honour then referred to the judgment of Hoeben J in Zurich Australian Insurance Limited v Motor Accidents Authority of NSW & Anor [2006] NSWSC 845 to which I will refer below. His Honour concluded: "[74] Lastly, I deal with the issue of the merit finding of complexity, even though I am disentitled from so doing. It seems, that the plaintiff's real complaint is that the Claims Assessor determined that the matter was not complex. The Claims Assessor did so on the basis that it was a matter not outside the realms of cases regularly undertaken. As early stated, the determination of a matter as being complex is an evaluative determination. Absent Wednesbury unreasonableness, a comparison between the case that is before the Assessor and cases that otherwise come before Assessors is an assessment of the range of cases usually dealt with and a not unreasonable basis upon which to determine whether a matter is complex and the complexity is such that it requires a reference to a court. [75] As Hoeben J points out, the vast majority of cases will be determined by Claims Assessors. This is the scheme envisaged by the legislature. Further, the parties' rights are reserved because, unless they accept the assessment, the matter must ultimately be dealt with by the courts. [76] The plaintiff's Summons is misconceived. It seeks to portray the Claims Assessor's 'reasons' as containing jurisdictional or legal error when in truth the plaintiff is attempting to have this Court embark upon a merit review of whether the matter is not suitable for assessment under Part 4.4 of the Act."

Findings in the Khateib Proceedings 14 In the Khateib proceedings the Assessor published what he described as reasons for declining to recommend exemption pursuant to s92(1)(b). Those reasons were brief. He noted that he was satisfied that the insurer had made a written allegation within the meaning of s117 of the Act. This finding brought into consideration Guideline 7.11.10 set out above. He referred to certain additional particulars of false or misleading claims, being a reference to a letter providing such particulars. He concluded that the allegations fell within s117 of the Act. He noted with respect to the substance of the allegations: "… it is only necessary for me to consider whether, having regard to the material that should be available to me, the claim is one that is suitable for assessment." 15 Under the subheading of Complexity the Assessor identified the insurer's submissions of complexity with respect to the existence of damages and its quantification. 16 The substantive part of the Assessor's reasons were as follows: "The material submitted by the insurer in support of the Exemption Application goes no further than establishing that the claimant has or had interests in various small businesses. The insurer's solicitor has been able to analyse those interests closely, as described in Annexure 'A' to the Exemption Application. The claimant's solicitor has made a detailed response in Annexure 'A; to her Reply. Ms Milicevic indicated at the Seventh Preliminary Conference that all relevant financial records will be provided to the insurer. Both parties will have the opportunity to obtain forensic accounting reports. There is nothing in the material before me to indicate that credit issues are likely to arise which cannot be addressed adequately at the Assessment Conference, especially having regard to the provisions of Chapter 14 of the Claims Assessment Guidelines, which provide that the way in which an Assessment is to proceed is a matter entirely within my discretion. For all of those reasons, I am not satisfied that the claim is not suitable for Assessment." 17 Rothman J set out in full the Assessor's statement of reasons. His Honour rejected a submission based on the failure to expressly refer to the Guidelines, a submission not pressed here. His Honour concluded: "[20] In this instance, the Claims Assessor has been addressed on the importance of the material and the allegation. The Claims Assessor has evaluated that claim and the material that is currently available and will, in the ordinary course, become available and has come to a conclusion that that material and that allegation are not such that the matter is not suitable for assessment. The reasoning of the Claims Assessor does not disclose relevant error or the failure to take account of a material consideration. Further there is no immaterial consideration that the Claims Assessor has considered and the result is neither unreasonable in the Wednesbury sense nor manifestly incorrect." 18 His Honour also referred to his Honour's analysis of the similar submissions made in the Hoerning proceedings, to which he referred as Kelly and said: "[22] All the other matters, as I have said, are matters identical with those raised in Kelly or so similar that the reasoning necessarily applies. I have come to the conclusion, as I did in Kelly, that the plaintiff's Summons seeks to portray error or merit (if any) as jurisdictional or legal error and raises no matter which warrants the making of orders in the nature of prerogative relief. Such relief should not issue." 19 I have set out his Honour's reasoning in Hoerning above.

The Issue of Characterisation 20 A number of grounds in both cases turn on the characterisation by Rothman J of the procedure under s92(1)(b) and the Guidelines as constituting a "non-binding arbitration". 21 The references of the character about which complaint is made were first made in his Honour's judgment in the Hoerning proceedings, which were adopted by his Honour in his judgment in the Khateib proceedings. 22 It was common ground on this appeal that the structure of the Act was such that where an insurer admits liability and makes no allegation of contributory negligence, which was the position in each of the cases presently under consideration, then an assessment of the claimant's damages by an Assessor is binding on the insurer if accepted by the claimant, but not binding on the claimant. In each case the Appellant contends that his Honour erred in characterising the nature of the process conducted before an Assessor as a "non-binding arbitration". 23 In the course of his judgment in the Hoerning proceedings his Honour said: "[30] Assuming, as is usually the case in a disputed claim, that there is an issue as to liability and the contributory negligence of the claimant, the Claims Assessor will make a non-binding assessment of the relative liability (i.e. the degree, if any, to which damages would be reduced on account of contributory negligence) and would assess damages. If the claimant accepts the level of damage assessed (being the level of damage after reduction for any contributory negligence) and the insurer accepts the apportionment of culpability associated with the assessment on contributory negligence, then the assessment of damage is binding on the insurer and the insurer must pay the claimant the amount of damages specified: see Lee v Yang [2006] NSWCA 214 at [25] and [26]. [31] If, on the other hand, the claimant does not accept the amount of damage, the certified amount of damage is not binding on the claimant. Further, if the insurer does not accept the liability assessed under s94 (including apportionment in any case in which contributory negligence is alleged) the matter must proceed to a court for determination. [32] In those circumstances the only time that a Claims Assessor's determination is binding on a party against that party's will is in circumstances where the insurer does not accept the amount of damages assessed by the Claims Assessor but accepts liability assessed under s94 and the claimant accepts the amount of damages in settlement of the claim. In those circumstances the insurer is, notwithstanding their non-acceptance of the assessment of damage, required to pay the amount of damage: see Lee v Yang, supra … … [35] It is clear from the provisions of the Act that, absent agreement between the parties either before or after the process embarked upon by the Claims Assessor, the parties are not precluded from having the claims assessed in court. If, at the end of the assessment, the insurer does not accept liability, either in whole or that part of the liability assessed, the insurer is entitled to have the matter assessed through proceedings conducted in a court of competent jurisdiction. Similarly, if the claimant (the injured person) does not accept the amount of damage (including any reduction on account of contributory negligence) the claimant is entitled to have the matter assessed in a court of competent jurisdiction. [36] A proper analysis of the scheme of the Act shows that the Claims Assessors' role is the determination of a form of compulsory non-binding (or partially binding) arbitration. The parties are free to accept the arbitration of the Claims Assessor, or they are free to reject it. If they reject it, the matter proceeds to court and is dealt with, subject to the Act, in the ordinary way. There are consequences to the rejection of the assessment process. Those consequences tell in costs and in other ways. The claims assessment process, however, does not preclude a hearing in court." 24 His Honour also made other references to his characterisation of the system as creating a form of "compulsory non-binding arbitration". 25 In the judgment in the Khateib proceedings his Honour referred to his analysis in the Hoerning proceedings and said: "[9] A number of these grounds were raised and have been dealt with in the judgment in Kelly , supra. I do not repeat that analysis or those determinations. I do however reiterate that the Claims Assessment process is a form of non-binding arbitration, the procedures for which are therefore not required to be the same procedures as might otherwise apply to a court or Tribunal …" 26 His Honour also said: "[21] The purpose of the assessment process is for the Assessor to come to a view based on material that is conveniently available so that an independent person assesses, as best as is possible in that setting, the liability and damages that such person considers is appropriate. The parties then have the capacity to accept that liability and/or damage or not. If, as is addressed in the reasons for judgment in Kelly, the insurer does not accept liability in the proportion assessed or at all, the matter will go to court. If the claimant does not accept the damage as assessed, the matter will go to court. In court, no doubt, subpoenas may be served on third parties, if material other than that which was available to the Claims Assessor is considered to be relevant, or will lead to a relevant line of inquiry. The insurer is not prejudiced in the ultimate determination of the matter except in the sense that the insurer has the option of accepting a result on liability and thereby, consistent with the objects of the Act, resolving the matter before the court." 27 His Honour appears to have focused on the operation of the Act when an Assessor determines both liability and damages. This is implicit in his Honour's reference to "a disputed claim" in the opening clause of [30]; in his reference to a "Claims Assessors' determination" in the first sentence of [32] and in his reference to the "Claims Assessors' role" in the first sentence of [36] in the Hoerning proceedings as set out above. Such a perspective is also implicit in his Honour's reference to the "Claims Assessment process" in the third sentence of [9] and "the assessment process" in the first sentence of [21] in the Khateib judgment. However, neither case before his Honour concerned a situation in which an Assessor has embarked upon the task of determining liability. In each case liability had been accepted by the insurer. In such a situation it is inaccurate to characterise the situation, from the point of view of the insurer, as being a "non-binding arbitration". Once the process of arbitration is embarked upon after an acceptance of liability, an insurer is bound by the assessment of damages. 28 The obligation upon an Assessor to make an assessment is expressly excluded in a case where the insurer has accepted liability, by force of s94(1)(a) of the Act, which provides: "94(1) The claims assessor is … to make an assessment of: (a) the issue of liability for the claim ( unless the insurer has accepted liability ), and (b) the amount of damages for that liability." [Emphasis added] 29 The status of the two kinds of assessment is expressly set out in s95 which provides: 95(1) An assessment under this Part of the issue of liability for a claim is not binding on any party to the assessment. (2) An assessment under this Part of the amount of damages for liability under a claim is binding on the insurer …" 30 There are passages in his Honour's judgment in which he acknowledges the situation where there has been an admission of liability by the insurer prior to a reference to an Assessor. This appears to be implicit in his Honour's reference in the Hoerning judgment to "a disputed claim" in [30], in the reference to "absent agreement between the parties … before … the process embarked upon by the Claims Assessor" in [35] and in the reference to "partially binding" in Para [36]. Nevertheless, it is not possible to treat his Honour's detailed characterisation of the situation as it exists after an Assessor has resolved a disputed question of liability as immaterial. 31 In my opinion, his Honour did fail to analyse the legislative scheme from the perspective of the particular situation that arose in each case, namely, where the insurer had accepted liability for the original accident and did not allege any form of contributory negligence. In such circumstances it was inaccurate to describe the process as a form of "non-binding arbitration". Any assessment of damages in the relevant circumstances would be binding upon the insurer. 32 Although it appears that his Honour did err in failing to concentrate on the statutory analysis pertinent to the situation before him, in my opinion, this error did not determine his Honour's disposition of the proceedings. Inevitably, his Honour's judgments did either inferentially, and on at least one occasion, expressly link his analysis to the conclusion. However, considering his Honour's judgments as a whole, this error made no difference. 33 One passage to which the Appellants directed the Court's attention which clearly linked the concept of a "non-binding arbitration" to his Honour's analysis was that found in par [9] in the judgment of Khateib which I have set out at par [25] above. His Honour's reference to "non-binding arbitration" was immediately succeeded by the following: "the procedures for which are therefore not required to be the same procedures as might otherwise apply to a court or tribunal". 34 Setting aside the difference between procedures in a court and in a tribunal, it does not appear to me that that conclusion turns on the characterisation of the process as a "non-binding arbitration". Procedures for an Assessment under the Act could not be said on any basis to be "the same procedures" as those for a court, or even for a tribunal. This is not least because the Guidelines contain detailed express conditions for those procedures of a character which would not apply to a court or tribunal. Accordingly, his Honour's conclusion was correct, even if it was based on an incorrect premise. 35 A second passage from the Hoerning judgment upon which the Appellant relied was: "[46] The determination by a Claims Assessor that a claim involves complex legal or factual issues is an evaluative determination, which must necessarily involve a determination of the relative complexity of the legal or factual issues (or any other issue to which the term complex is related) as compared with the norm. As the Claims Assessor arrives at each such evaluation, bearing in mind the ultimate purpose of determining whether the claim is not suitable for assessment, the Claims Assessor is entitled to take into account that, ultimately, any assessment by the Authority need not be accepted by the parties." 36 This passage is erroneous in a case where an insurer has admitted liability. However, there was never any suggestion, either before Rothman J or in this Court, that the Assessor had taken into account the erroneous proposition that the insurer may "ultimately" not accept the assessment. The error in his Honour's reasons was immaterial. 37 The Appellants have identified an error. However, the error was immaterial to the disposition of the proceedings. Grounds 1, 2 and 3 in the Hoerning proceedings and Grounds 1 and 3 in the Khateib proceedings should be rejected.

The Guidelines Grounds 38 In both cases the Appellants submitted that his Honour erred in the approach he adopted to the challenge based on the way in which each Assessor had approached the Guidelines. The complexity Guidelines arose in each case. The fraudulent claim Guideline arose only in the Khateib proceedings. However, the submissions were similar in each respect. 39 The Appellant submitted that Parliament intended that where complex issues arise, a claim should be determined by a court, not by an assessor. There is no textual support for this proposition. An unconfined power was conferred by s92, subject to the Guidelines. There is no basis for confining the power in the way suggested. 40 The Appellant relied on a number of authorities which indicate the approach that ought to be adopted by a decision-maker exercising a statutory power which requires that decision-maker to have regard to particular facts and matters. The Guidelines in the present case were so expressed. This line of authority establishes that a reference of this character requires a decision-maker not only to take the relevant matters into account but to give them weight as a fundamental and focal element in the decision-making process. The authorities relied upon in this regard were The Queen v Toohey; Ex parte Meneling Station Pty Limited (1982) 158 CLR 327 at 333 and 338; R v Hunt; Ex parte Sean Investments Pty Limited (1979) 180 CLR 322 at 329; Parramatta City Council v Hale (1982) 47 LGRA 319 at 338, 339, 340 and 342; Centro Properties Limited v Hurstville City Council (2004) 135 LGERA 257 at 266-267; Weal v Bathurst City Council (2000) 111 LGERA 181 at [82]; Zhang v Canterbury City Council (2001) 51 NSWLR 589 at 602, [71] - [73]. 41 The formulation of a "fundamental element" is based on the line of authority commencing with Sean Investments supra. As I have pointed out in Zhang supra at [73], the formulation of a "focal point" finds its origin in the judgment of Gleeson CJ and McLelland CJ in Eq in Evans v Marmont (1997) 42 NSWLR 70 at 79-80. 42 I have set out the reasons given by the Assessor in each case. In my opinion, although the reasons in Khateib are only adequate, those reasons make it plain that the issue of complexity in each, and of falsity in Khateib, were the focal point of the analyses in each case and these considerations were treated by each decision-maker as fundamental in accordance with these authorities. The reasons in each case are clearly directed to the pertinent matters. 43 The Appellant relied on the reference in the Assessor's reasons in Hoerning to the fact that the process would "not be straight forward". The submission that this acknowledgment should have led to a different result should be rejected. Furthermore, the Appellant's submission in the Khateib proceedings that the Assessor had to set out and assess the whole scheme of the Act for dealing with fraudulent claims should be rejected. What was required was to treat that matter as fundamental in the evaluative task, which was done. 44 In my opinion, Rothman J was correct to say that the Appellants in each case sought, in substance, to review the decision of the Assessor on the merits. This is impermissible given the restraints on the jurisdiction exercised by the Supreme Court in judicial review proceedings. 45 The Appellant identified significant differences between the adversarial system for taking evidence and the inquisitorial system for which the Guidelines provide. In particular, reference was made to the fact that in an assessment under the Act, evidence is not given on oath, subpoenas are unavailable and full cross examination is not permitted. The complexity of the issues raised in the two cases and significant issues of credit which will arise - especially in the Khateib case where an issue of falsity arises - were said to be entitled to significant weight. Whether that be so or not, such matters are not entitled to determinative weight. They raise questions of fact and degree capable of evaluation by the Assessor who is the depository of the statutory power. There is no reason to believe these differences were not given appropriate consideration. 46 Ground 4 in the Hoerning proceedings and Ground 4 in the Khateib proceedings should be rejected.

Other Grounds 47 As noted above, Justice Rothman referred to and relied upon the observations of Justice Hoeben in Zurich Australia Insurance. The Appellant submitted that Hoeben J was in error when he identified exemptions as being in the minority of cases and that the scheme envisages "the vast majority of cases will be determined by Claims Assessors". In my opinion, Hoeben J was correct to conclude that such would be the practical effect of the scheme. One of the important objectives of the Act set out in s5(i)(d) and (e) is "to keep premiums affordable". One of the mechanisms for achieving that objective is to minimise the costs of the dispute resolution process. 48 In any event, this particular reference did not play any substantive role in the disposition of the proceedings by Rothman J in either case. 49 Ground 5 in the Hoerning proceedings and Ground 2 in the Khateib proceedings should be rejected. 50 Ground 6 in the Hoerning proceedings was based on the statement in the last paragraph of the reasons of the Assessor which I have extracted at [11] above, namely that the "matter remains suitable for assessment". It was submitted that the relevant question was whether the claim was "not suitable for assessment". This is, as Rothman J concluded, a distinction without a difference. Not only is it a trivial focus on a minor slip of expression, if it was to be given any weight at all it would mean that the Assessor applied a test that was more favourable to the interests of the insurer than was justified. 51 Ground 6 in the Hoerning proceedings should be rejected. 52 In the Khateib proceedings the Appellant referred to his Honour's characterisation of cl 7.11.10 of the Guidelines as constituting an error. That was based on the opening sentence of par [19] of his Honour's judgment where he said: "[19] The plaintiff refers to the criterion in clause 7.11.10 and submits, as I understand the Submission, that this criterion is even more important than the 'central elements' otherwise contained in clause 7.11. It has this status because it was previously a criterion by which the provisions of s92(1)(a) were invoked." 53 The Appellant submitted that it had not been its case before Rothman J that this criterion "assumed more importance than any other". If his Honour did in fact misunderstand the submission, this matter was of no account in even the most minor respect in the disposition of the proceedings. 54 Ground 5 in the Khateib proceedings should be rejected. 55 Finally, the Appellant in the Khateib proceedings relied on Wednesbury unreasonableness. In this regard the Appellant relied in large measure on the cumulative effect of the errors which it alleged had been made by the Assessor in the course of making his valuation. Specifically, in written submissions to this Court the Appellant submitted that a conclusion of unreasonableness in the requisite sense should be derived from the following factors: "(i) failed to take relevant matters properly into account and give weight to them as fundamental and focal elements in the decision making process; (ii) failed to have any, or any proper, regard to the provisions of Chapter 7 of the Guidelines; (iii) failed to address the correct question as required by s 92(1)(b) of the Act, namely the question of whether or not the claim was not suitable for assessment; (iv) failed to address and evaluate the significance and effect of relevant provisions in the Act dealing with fraud, and the rights and responsibilities of an insurer in such a case; and (v) … had regard to irrelevant considerations, such as the provisions of Chapter 14 of the Guidelines." 56 Sub-paragraph (i) has already been dealt with. The Assessor clearly had regard to the relevant Guidelines as fundamental and focal elements. Similarly, the provisions of Ch 7 of the Guidelines referred to in (ii) were matters clearly in the Assessor's mind. The so-called failure in (iii) is trivial and irrelevant for the reasons I have outlined above. With respect to (iv) the submissions did not elaborate on this matter beyond the bare assertion. The Assessor was not obliged to give reasons. It is not clear to me what weight he ought to have given to the provisions of the Act dealing with fraud. His function was to determine whether, matters of that character having been raised, the claim was "not suitable for assessment". There was no suggestion to Justice Rothman or to this Court as to how this particular matter should have been given substantial, let alone determinative, weight in the course of formulating the judgment which the statute required the Assessor to make. 57 Finally, taking into account irrelevant considerations, such as the provisions of Ch 14 of the Guidelines, could have constituted a separate ground of appeal. It is not clear to me how it leads to a Wednesbury unreasonableness ground in any way. It may be that this refers to the ground argued before Rothman J, but not pressed in this Court, that the Assessor referred to evidence that would in the normal course of hearing of an assessment be available to the Assessor. 58 Chapter 14 is on the subject of "Assessment Procedure" and outlines the steps that are normally taken in an assessment; the principles by which an assessment ought to be conducted in the course of the assessment conference and the circumstances in which such a conference may not be required. I do not understand how these matters can be regarded as an irrelevant consideration in determining whether a particular claim is or is not "suitable for assessment". In my opinion, the procedure normally conducted, and the evidence likely to be available in the course of applying that procedure, is a matter that ought be taken into account in determining the statutory issue. Indeed, no ground was pressed in this Court that this was not a relevant consideration. 59 No basis of any character has been established for concluding that the high test of Wednesbury unreasonableness has been satisfied in this case. 60 In a written submission, the Appellant in the Khateib proceedings relied on Balog & Stait v Independent Commission Against Corruption (1990) 169 CLR 625 for the proposition that an Assessor did not have statutory authority to determine any issue of criminal liability or to make findings of corrupt, fraudulent or improper conduct. This submission does not arise on any ground of appeal, nor was it put to Rothman J. It appears to me to be fundamentally inconsistent with the scope and purpose of the legislative scheme, but that need not be determined.

Conclusion 61 In my opinion, each appeal should be dismissed with costs. 62 BEAZLEY JA: I agree with Spigelman CJ. 63 GILES JA: I agree with Spigelman CJ. **********

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(2004) 135 LGERA 257

(2000) 111 LGERA 181

At a glance

Court

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Judgment (25 paragraphs)

Cases Cited (11)

Cited By (6)