Insurance Australia Limited trading as NRMA Insurance v Motor Accidents Authority of NSW & Ors

Supreme Court of NSW|2010-05-20|Before: Barr AJ

CITATION : Insurance Australia Limited trading as NRMA Insurance v Motor Accidents Authority of NSW & Ors [2010] NSWSC 478 This decision has been amended. Please see the end of the judgment for a list of the amendments.

DECISION : Dismiss the Summons. The plaintiff to pay the third defendant's costs of the Summons.

CATCHWORDS : Motor Accidents Compensation Act - assessment of claim under Part 4.4 - Guidelines - application for exemption from assessment under Part 4.4 - allegation of false and misleading statements - determination of claims assessor - no approval by Principal Claims Assessor - whether Principal Claims Assessor had regard to requirements of Guidelines.

LEGISLATION CITED : Motor Accidents Compensation Act 1999

Commissioner for Police for NSW v Industrial Relations Commission of NSW & Anor [2009] NSWCA 198 Craig v State of South Australia (1995) 184 CLR 163 Ex parte Hebburn Limited re Kearsley Shire Council (1947) 47 SR (NSW) 416 Insurance Australia Limited T/As NRMA Insurance v Motor Accidents Authority of NSW & Ors; Kelly v Motor Accidents Authority of NSW & Anor [2007] NSWCA 314 CASES CITED : Lafu v Minster for Immigration and Citizenship (2009) 112 ALD 1 Minister for Aboriginal Affairs v Peko Wallsend Limited (1986) 162 CLR 24 Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 Paice v Hill [2009] NSWCA 156 WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 75 ALD 633

Plaintiff-Insurance Australia Limted t/as NRMA Insurance PARTIES : First defendant- Motor Accidents Authority of NSW Second defendant- Principal Claims Assessor of the Motor Accidents Authority of NSW Third defendant-Joumana El-Hosni

Plaintiff- M. Robinson, J.W.Ryans COUNSEL : First and second defendant- submitting appearance Third defendant- E. Romaniuk

SOLICITORS : Plaintiff-Peter Hunt, Curwoods Lawyers Third defendant-John Williams, Keddies Lawyers

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

2009/327367 INSURANCE AUSTRALIA LIMITED T/AS NRMA INSURANCE v MOTOR ACCIDENTS AUTHORITY OF NSW & ORS

JUDGMENT 1 HIS HONOUR: By its Amended Summons filed on 10 February 2010 the plaintiff, Insurance Australia Limited T/As NRMA Insurance, seeks these orders- "1. An order in the nature of certiorari or, alternatively, a declaration quashing, setting aside or declaring invalid the determination of the Principal Claims Assessor ('PCA'), the second defendant, made on 26 November 2009 purportedly pursuant to section 92(1)(b) of the Motor Accidents Compensation Act 1999 (NSW)('MAC Act') to refuse the plaintiff's application for exemption from assessment under Part 4.4 of the Act ('Claims Assessment and Resolution')('the PCA decision'). 2. An order in the nature of prohibition or, alternatively, an injunction preventing the defendants or any of their officers, servants or agents from acting on or taking any further step in reliance on the PCA decision. 3. An order in the nature of mandamus remitting the plaintiff's exemption application to the Principal Claims Assessor for determination by her of the plaintiff's exemption application according to law. 4. Costs." 2 The first defendant is the Motor Accidents Authority of NSW ("MAA") and the second defendant is the Principal Claims Assessor ("PCA") of the MAA. Both have filed submitting appearances and have taken no active part in the proceedings. The third defendant is Joumana El-Hosni, who was injured in a motor vehicle accident on 4 August 2006. She made a claim for loss and damage resulting from her injuries. In order to do that she made an application under the Motor Accidents Compensation Act 1999 ("the Act"). Copies of her application and statements she furnished with it were served on the Insurer, the plaintiff. Such applications fall to be dealt with under the provisions of the Act. Part 4.4 of the Act deals with the assessment and resolution of such claims. The PCA is a lawyer appointed under s 99A. There are also claims assessors, persons whose designation is provided for in s 99. 3 The scheme of the legislation provides for the assessment and resolution of such claims extracurially unless they are exempted from that system under the provisions of the Act. One of the ways in which claims may be exempt from assessment is provided by s 92(1)(b) of the Act. Relevantly, the section is as follows- " 92 Claims exempt from assessment (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.

(2) If a claim is exempt from assessment under this Part, the Principal Claims Assessor must, as soon as practicable, issue the insurer and claimant with a certificate to that effect (enabling court proceedings to be commenced in respect of the claim concerned)." 4 By s 69 of the Act the MAA may issue guidelines about procedures for the assessment of claims under Part 4.4. By s 106 claims assessments under Part 4.4 are subject to relevant provisions of the guidelines. Guidelines have been published pursuant to s 69 entitled 'Claims Assessment Guidelines' ("the Guidelines"). They operate by force of law as if they were delegated legislation: Paice v Hill [2009] NSWCA 156. 5 The reference in the Guidelines to CARS is to the Motor Accidents Claims Assessment and Resolution Service of the Motor Accidents Authority. 6 The portions of the guidelines with which this Summons is concerned lie in Chapter 14, as follows- "Unsuitable for assessment under section 92(1)(b)

14.11 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.

14.12 An Assessor may make a preliminary determination that a claim is not suitable for assessment on their own initiative or upon application by the claimant, the insurer, or both, at any time during the course of an assessment, after providing the parties with the opportunity to make submissions on that issue and considering any such submissions. 14.13 If the Assessor determines that the claim is not suitable for assessment, the matter must be returned within 5 days of making such a determination to the PCA for approval with a brief statement of reasons. 14.14 If the PCA approves the preliminary determination under section 92(1)(b), the PCA shall issue a certificate of exemption and notification to the parties within 5 days of the return of the matter from the Assessor.

14.15 If the PCA does not approve the preliminary determination, an officer of CARS is to advise the parties within 5 days of the return of the matter from the Assessor, and forward the matter to a different Assessor for assessment within 10 days of the return of the matter from the original Assessor. 14.16 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, but not limited to: 14.16.1 whether the claim is exempt under section 92(1)(a) because the claim involves one or more of the circumstances set out in clause 8.11; 14.16.2 the heads of damage claimed by the claimant and the extent of any agreement by the insurer as to the entitlement to those heads of damage; 14.16.3 whether the claim involves complex legal issues; 14.16.4 whether the claim involves complex factual issues; 14.16.5 whether the claim involves complex issues of quantum or complex issues in the assessment of the amount of the claim including but not limited to major or catastrophic, spinal or brain injury claims; 14.16.6 whether the claimant has been medically assessed and is entitled to non economic loss pursuant to section 131 and the claim involves other issues of complexity;

14.16.7 whether the claim involves complex issues of causation in respect of the relationship between the accident, the injuries sustained and disabilities arising from it including but not limited to multiple accidents or preexisting injuries or medical conditions;

14.16.8 whether the insurer is deemed to have denied liability under section 81(3); 14.16.9 whether the claimant or a witness, considered by the Assessor to be a material witness, resides outside New South Wales; 14.16.10 whether the claimant or insurer seeks to proceed against one or more non-CTP parties; and/or 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."

and in Chapter 17.13, as follows- "17.13 If during the course of an assessment by an Assessor, or the determination by the PCA 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." 7 Chapter 15 deals with Assessment Conferences and includes this- "15.4 The Assessor shall determine the manner in which evidence is presented at an Assessment Conference, ensuring that: 15.4.1 each party is to be given an opportunity to address the Assessor on any issue in dispute and to put to the Assessor any questions that the party seeks that the Assessor ask or any areas that the party wants the Assessor to explore; 15.4.2 the examination of parties and witnesses is usually by the Assessor and questions to other parties or witnesses may only be put as directed by the Assessor; 15.4.3 the Assessor may, at the request of a party allow the questioning of a witness or a party, by either party's legal representative or agent, subject to any limitations as determined by the Assessor; 15.4.4 the Assessor may question any party or witness to such extent as the Assessor thinks proper in order to elicit information relevant to the claim; and 15.4.5 the Assessor cannot compel any party or witness to answer any question, but may have regard to the failure of a party or witness to answer a question in the determination of the assessment, unless the party has a reasonable excuse for that failure to answer." 8 Chapter 16 deals with the assessment procedure and includes this- "16.3 The Assessor is to act with as little formality as the circumstances of the matter permit and according to equity, good conscience and the substantial merits of the matter without regard to technicalities and legal forms." 9 The Act requires Insurers to take all reasonable steps to deter and prevent the making of fraudulent claims: s 116. 10 The plaintiff considered the documents served on it consequent upon the third defendant's application. It formed the view that she had made false or misleading statements in material particulars in relation to her injuries, loss or damage. It made a formal response, alleging that the third defendant had made false and misleading statements. Particulars were given. It asked for the matter to be exempted from assessment under Part 4.4. 11 By making those allegations the plaintiff enlivened the discretion under s 92(1)(b) and the Claims Assessor was required to deal with the matter. At a preliminary conference she required to be provided with evidence that false or misleading statements had been made. The plaintiff made available surveillance material, video evidence and witness' statements. The Assessor considered that material and compared it with statements in the documents provided by the third defendant in the application. The Claims Assessor made a written decision on 20 November 2010. Omitting formal parts, the document is as follows- " Suitability for Assessment

The Insurer has applied for an exemption from assessment at CARS on the basis that the claim is unsuitable for assessment pursuant to Chapter 14.16.11 and s 92 (1)(b) of the Act. The initial application contained only a bare assertion by the insurer that the Claimant had made false and misleading statements. I was not persuaded on the basis of the assertions that the matter was indeed unsuitable, there being insufficient information for me to be comfortably satisfied of that fact. I invited the insurer to provide documentation to support the assertion that the Claimant had made a number of statements which were false or misleading in a material particular in relation to the injuries, loss or damage. Whilst the Insurer through its Counsel, Mr Fitzsimmons, offered to make supporting material available to me on condition that it not be made available to the Claimant or her legal advisors, I considered that such an approach was inappropriate. I invited the Insurer to make available to me such material as it wished in support of the application but only on condition that that material also be made available to the Claimant's legal advisors. In due course, I was provided with surveillance material, video evidence and witness statements. I have considered that material in detail and compared it with the documentation lodged with the Application for General Assessment. I agree that the material supplied does have the potential to contradict the Claimant's statement that she has not worked and is unable to seek employment due to her injuries and disabilities. It may also impact upon the claim for domestic assistance and future medical treatment. Although there have been many cases where a CARS Assessor has made adverse credit findings against a Claimant in circumstances not dissimilar to theses, it is my view that this is a case which would be better handled in a formal court setting where the Claimant's evidence can be given on oath or affirmation and where the Insurer will have an unfettered right of cross-examination. I note that the impugned statements have been repeated on a number of occasions, as recently as August 2009, and that they encompass much of the Claimant's claim for damages. It is my recommendation to the Principal Claims Assessor that she issue a Certificate of Exemption. She will communicate her decision direct to the parties. The file will now be returned to the Registry. " 12 By Chapter 14.13 of the Guidelines it fell to the PCA to approve or not approve the Assessor's preliminary determination. Accordingly, the second defendant considered the matter. In a written decision made on 26 November 2009 she declined to approve the Claims Assessor's recommendation. Omitting formal parts, the reasons are as follows- " I refer to the Additional Preliminary Conference Report from Assessor Holz dated 20 November 2009. I note Assessor Holz has recommended this claim be exempt from assessment by inference because she would have appeared to have formed a view the claim is not suitable for assessment. Her reasons are given as follows: Although there have been many cases where a CARS Assessor has made adverse credit findings against a Claimant in circumstances not dissimilar to these, it is my view that [this] is a case which would be better handled in a formal court setting where the Claimant's evidence can be given on oath or affirmation and where the Insurer will have an unfettered right of cross-examination. I note Clause 16.3 provides that an Assessor shall act with as 'little formality as the circumstances of the matter permit' and thus in cases where the reliability of the claimant's evidence is in issue more formality that (sic) [than?] less would be appropriate. I also note that Clause 15.4.3 provides that an Assessor may permit the questioning of a witness or party to the assessment-thus whilst not called cross-examination, the insurer would in this case have the opportunity at an Assessment Conference to question the claimant and test the reliability of her evidence. Whilst oaths or affirmations are not administered at CARS, witnesses are required to tell the truth. A claimant can be truthful or not at CARS or in Court or in the claims process and outside either. The reasons given by Assessor Holz do not indicate what the benefit of an oath or affirmation would give to the resolution of this claim. In the circumstances and particularly bearing in mind Assessor [Holz's] view that claims not dissimilar to Ms El-Hosni's have proceeded to assessment at CARS I am not satisfied that this claim is unsuitable for assessment and therefore I do not accept the recommendation that it be exempted. " 13 The grounds on which the plaintiff seeks orders are these- "1. The second defendant, the Principal Claims Assessor, fell into jurisdictional error or made an error of law on the face of the record and/or constructively failed to exercise her jurisdiction in relation to the plaintiff's application that the third defendant's claim for assessment of damages lodged before the first and second defendant was 'exempt from assessment' under Part 4.4 of the MAC Act within the meaning of that expression in section 92(1)(b) of the MAC Act in that she:

(a) Failed to take relevant considerations into account that she was required to take into account, namely, she failed to take into account: (i) clause 14.16.11 of the Claims Assessment Guidelines dated 1 October 2008, being Guidelines made pursuant to section 69(1) of the MAC Act ('the Guidelines') in that she failed to appreciate that the said Guidelines were intended to make the ability of a party to fully test the credit of a claimant in a court setting a relevant factor in the granting and/or approving the grant of an exemption; and/or (ii) clause 17.13 of the Guidelines providing for exemptions based on particularised allegations of false or misleading statements; (b) Failed to apply clause 14.16.11 and/or clause 17.13 of the Claims Assessment Guidelines as she was required to; (c) Alternatively, she failed to 'have regard to' clause 14.16.11 as required by clause 14.16 of the Guidelines; (d) She asked herself the wrong questions when she considered that: (i) witnesses are simply 'required to tell the truth'; and (ii) a claimant can be truthful ; at both CARS assessment conferences and under an oath or an affirmation in court proceedings and she thereby misdirected herself in her purported performance of her duty pursuant to section 92(1)(b) of the MAC Act. The correct questions should have been what are the factors going to whether a witness whose credit is in doubt, can be compelled or feel compelled to answer questions truthfully or at all in an oral examination. She failed to direct herself to the significant differences between a court assessment of the credit of a witness and a CARS assessment conference which include, for example, that claims assessors do not have to be lawyers; a court is much better equipped in law, experience and in practice to deal with an oral examination of a witness whose credit is in doubt; the penalties for the offence perjury or making false statement under oath in court proceedings are significantly higher than any penalty or detriment a witness might face by reason of questioning in an assessment conference, see, for example, section 327 of the Crimes Act 1900 (NSW) which provides for imprisonment for 10 years (false statement on oath is perjury). 2. By reason of the above, the second defendant failed to understand the nature of the task she was to perform and she failed to perform it or she constructively failed to perform it. 3. Accordingly, the PCA decision is invalid and it should be set aside." 14 It was submitted for the plaintiff that "one would have expected the entire claimant's file to be before the Principal Claims Assessor when she undertook her important statutory task pursuant to s 92(1)(b)….However, there is no evidence that the file was before her since the only document she refers to her in her reasons for her decision is the claims assessor's decision dated 20 November 2009". It was pointed out that the PCA had referred to only one paragraph of the claims assessor's reasons and submitted that the PCA "seriously misquotes" the Claims Assessor by asserting that her reasons were as in that passage. That passage, it was submitted, was only one aspect of the Claims Assessor's reasons. 15 It was observed that the Claims Assessor had examined the third defendant's claim and had compared her documents with the material provided by the plaintiff and had said- " I note that the impugned statements have been repeated on a number of occasions, as recently as August 2009, and that they encompass much of the Claimant's claim for damages." 16 It was submitted that the PCA had thereby misquoted the Claims Assessor's reasons and should therefore be taken to have misunderstood them. So these matters, coupled with the lack of mention of the provisions of Ch 14.16.11 and 17.13 of the Guidelines, should lead the Court to the conclusion that the PCA had not taken them into account. Reference was made to authorities showing that failure to take into account a consideration that a statutory decision maker is required to take into account is a vitiating error, for example, Minister for Aboriginal Affairs v Peko Wallsend Limited (1986) 162 CLR 24. 17 Reference was made also to cases dealing with the ability of the Court to infer from a decision maker's not mentioning such matters that they were not taken into account: WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 75 ALD 633; Lafu v Minster for Immigration and Citizenship (2009) 112 ALD 1. 18 It was submitted that the PCA was required by the Guidelines to apply Ch 14.16.11 and Ch 17.13 or, alternatively, to "have regard to" Ch 14.16.11 as required by 14.16. It was submitted that a statutory requirement that a decision maker "have regard to" matters is a serious one. Reference was made to the judgment of Spigelman CJ in Commissioner for Police for NSW v Industrial Relations Commission of NSW & Anor [2009] NSWCA 198 at [73]- "A statutory requirement to "have regard to" a specific matter, requires the court to give the matter weight as a fundamental element in the decision-making process. ( R v Hunt; Ex parte Sean Investments Pty Ltd (1979) 180 CLR 322 at 329; R v Toohey; Ex parte Meneling Station Pty Ltd (1982) 158 CLR 327 at 333 and 337-338; Zhang v Canterbury City Council [2001] NSWCA 167; (2001) 51 NSWLR 589 at [71]-[73]). An equivalent formulation is that the matter so identified must be the focal point of the decision-making process. (See Evans v Marmont (1997) 42 NSWLR 70 at 79-80; Zhang above at [73].)" 19 Then it was submitted that the PCA had asked herself the wrong questions when she considered the exemption application. Reference was made to the consequences of applying a wrong legal test: Craig v State of South Australia (1995) 184 CLR 163; Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323. It was submitted that the "core reasoning" of the PCA included the contentions that (a) witnesses are simply "required to tell the truth" and that (b) a claimant can be truthful at both claims assessment conferences and under an oath or affirmation in court proceedings, whereas she should have asked herself what the factors were going to whether a witness whose credit is in doubt can be compelled or feel compelled to answer questions truthfully or at all in an oral examination. So, it was submitted, the PCA failed to direct herself about the numerous and significant differences between a court assessment of the credit of a witness and an assessment in a claims assessment conference. Such factors were listed and expanded on. I shall summarise them thus-

Proceedings at an assessment conference are private but those in court open to the public.

Claims Assessors are not necessarily lawyers. Those who represent parties in Court are legally qualified.

A court is better equipped in law, experience and in practice to deal with the oral examination of a witness whose credit is in doubt.

A court carries with it authority which commands respect and obedience. It exercises judicial power. It can require answers to be given under oath or affirmation and can compel answers against the wishes of witnesses. It can manage and regulate its own proceedings and some of its powers are punitive. The court can deal formally with contempts of court and abuses of process. It is a "most serious matter" to lie before a judge on oath or affirmation. These things were obviously what the Claims Assessor was referring to when she expressed the opinion that the case would be "better handled" in a place where evidence could be given on oath or affirmation. The penalty is for perjury or making false statements on oath is higher than any penalty or detriment a witness might face for lying at an Assessment Conference.

A witness in court could be cross-examined extensively and to some extent as of right, whereas a person being questioned at an Assessment Conference could be cross-examined only in the discretion of a claims assessor. Such a claims assessor might have to consider countervailing considerations, for example requirements to resolve the matter in hand as quickly as possible and to act with as little formality as the circumstances permit and without regard to technicalities and legal forms: see Ch 16.7, 16.3. 20 Reference was made to Ch 15.4 of the Guidelines, which I have set out above. It was submitted that though there was power in an assessor to permit cross-examination, parties are occasionally denied that ability. Examples were given. 21 It was submitted that for all these reasons the PCA's decision was invalid because her decision was given in error. Alternatively she failed to perform her statutory task and constructively failed to exercise jurisdiction: Ex parte Hebburn Limited re Kearsley Shire Council (1947) 47 SR (NSW) 416 at 420.

Consideration 22 The scheme of the Act is that claims are to be dealt with by assessment under the regime in Part 4.4 unless exempt. Exemption may arise by force of the Guidelines or the Regulations: subs (1)(a). When subs (1)(a) applies, the PCA is required by Ch 8.11 of the Guidelines to issue a certificate of exemption. A number of circumstances are provided for, including, for example, where an insurer alleges that a claim is fraudulent "in terms of the circumstances of the accident giving rise to the claim": Ch 8.11.6. This is not such a case. 23 The plaintiff's allegations as Insurer created a requirement for a Claims Assessor to make a preliminary assessment and determine whether the case was not suitable for assessment. If that should happen, the PCA was required to approve that determination. Both those things needed to happen to take the case out of the assessment regime under Part 4.4. It is not the case, as some of the plaintiff's submissions went close to asserting, that when an insurer alleges that a claimant has made a statement that is false and misleading in a material particular that the appropriate forum for assessment is a court. For example, this submission appeared in para 48 of the plaintiff's written submissions- " The combination of the two clauses [namely, Ch 14.16.11 and 17.13] makes a very powerful inference that such matters should be exempt from the claims assessment and resolution process that is set out in Part 4.4 of the Act…" 24 I think that that submission overstates the position. An allegation is only ever an allegation and the Guidelines do not give it any higher status. 25 In Insurance Australia Limited T/As NRMA Insurance v Motor Accidents Authority of NSW & Ors; Kelly v Motor Accidents Authority of NSW & Anor [2007] NSWCA 314 the appellant made a submission rather like this plaintiff's, namely that under s 92(1)(b) Parliament intended that where complex issues arise, [as to which see Ch 14.6.3 and 4], a claim should be determined by a court and not by an assessor. Spigelman CJ, with whom the other members of the Court agreed, rejected that submission at [39], observing that there was no textual support for the proposition. His Honour said that an unconfined power was conferred by s 92, subject to the Guidelines, and that there was no basis for confining the power in the way suggested. 26 In that Appeal, the issues raised before the Motor Accidents Authority and this Court concerned allegedly false statements, giving rise to issues of credit. Spigelman CJ said this at [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]. " 27 The duty of this Court, therefore, is to decide whether in declining to approve the preliminary determination of the Claims Assessor, the PCA took relevant matters into account and gave them weight as a fundamental and focal element in the decision-making process. By Ch 14.16.11 the PCA had to have regard to the circumstances of the claim at the time of the preliminary determination including but not limited to the circumstance that the plaintiff had alleged that the third defendant had made false or misleading statements in material particulars in relation to her injuries, loss or damage. That would include any written particulars of the general nature of the plaintiff's allegations as contemplated by Ch 17.13. 28 Counsel for the plaintiff submitted that the PCA's report showed that she had failed to look at "the file", since she did not record that she had looked at it. I acknowledge the ability of the Court to draw inferences from omissions, but I do not regard the absence of such a statement from the PCA's report as implying that she read nothing but the claims assessor's recommendation. 29 I do not accept the submission that the PCA "seriously misquoted" the claims assessor by quoting only part of her reasons and describing them as her reasons. That was not misquotation. The passage extracted contained the claims assessor's reasons. It did not contain all her reasons, but the PCA did not say that it did. What the extracted passage plainly did, however, was cover the nub of the problem. The references to the "adverse credit findings" and to "circumstances similar to these" could only have referred, and could only have been intended by the PCA to refer, to the plaintiff's allegations about false or misleading statements and to the resolution of the problem of the third defendant's credit thereby arising. 30 The PCA was not bound to repeat all the claims assessor's reasons and I would not infer from her omission to do so that she was unaware of all of them. I think that the PCA must have considered all her reasons. 31 Coming to the Guidelines to which the PCA had to have regard, she expressly referred to the issue of the reliability of the claimant's evidence. In context, that could only have meant the issue of the third defendant's credit arising from the plaintiff's allegations. The PCA referred to the alternatives available to enable the resolution of that issue. She decided which alternative she preferred and decided not to exempt this case. It seems to me that the PCA had regard to the Guidelines, including Ch 14.16.11 and 17.13. 32 It seems to me that the remainder of the plaintiff's submissions came close to propounding a test on the merits, a matter with which this Court is not concerned. Assertions that the PCA asked herself the wrong questions, failed to direct herself about the differences between assessment under Part 4.4 and proceedings in court and the characterisation of the PCA's "core reasoning" do not raise things that the PCA was bound to do in order to be seen to have regard to the matters essential to the decision-making process. In Insurance Australia Limited T/As NRMA Insurance v Motor Accidents Authority of NSW & Ors; Kelly v Motor Accidents Authority of NSW & Anor, cited above, Spigelman CJ said at [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." 33 In my opinion a fair reading of the PCA's decision shows that the matters referred to were given consideration. 34 Counsel for the plaintiff prepared written submissions in reply to those made on behalf of the third defendant. They included these submissions, which ought to have been put in chief- "3. In the present case, the principal claims assessor's decision is ultra vires the MAC Act because: a. She failed to have regard to (as a focal point or at all) the mandatory requirements of clause 14.16 and clause 14.16.11 and clause 17.13 of the guidelines; b. Her reasoning does not allow or make room for a claim to be exempt under the MAC Act or the guidelines in circumstances where there is a credible allegation that a claimant made false or misleading statements in a material particular; c. Her decision effective writes those provisions out of the guidelines entirely. The logic being, if a claim involves a witness whose credibility requires testing and an exemption is applied for, it will never be granted (or approved) because the principal claims assessor considers that there is no relevant distinction or difference between assessment at an assessment conference by any claims assessor and cross examination in Court in the presence of a judge. d. Her decision bespeaks of a policy of the MAA to the effect that no matter can ever be approved to go to the District Court or the Supreme Court by reason of a credible allegation as to the credit of a claimant in connection with material false or misleading statements. e. Accordingly, the principal claims assessor misconstrued or misunderstood the nature of her approval discretion in section 92(1)(b) for the above reasons." 35 Counsel referred in oral submissions to the matters thus raised and submitted that- "It bespeaks of a policy of the MAA or of the principal claims assessor to …just keep everything indoors and not let these things go to the District Court." 36 I do not accept these submissions. A further reading of the whole of the PCA's report shows that it was intended to deal only with this case. The remark at the end of the third-last paragraph about the assessor's lack of reasons to indicate "what the benefit of an oath or affirmation would give to the resolution of this claim" shows that it was this claim alone that the PCA was considering. The PCA made no policy statement. 37 I am satisfied that the PCA considered and applied the matters she was required to consider and apply. I make the following orders- 1. the Summons is dismissed; 2. the plaintiff is to pay the third defendant's costs of Summons.

21/05/2010 - typographical error - Paragraph(s) 11, fifth paragraph in quotation, 'repealed' replaced with 'repeated'.

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(2004) 135 LGERA 257

(2000) 111 LGERA 181

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