Insurance Australia Limited v Kong Lai Kai

Supreme Court of NSW|2018-06-20|Before: Adamson J

Introduction

By further amended summons filed in Court on 20 June 2018, Insurance Australia Limited (the plaintiff, or the insurer) seeks relief pursuant to ss 65 and 69 of the Supreme Court Act 1970 (NSW). The first defendant is Kong Lai Kai (the defendant, or the claimant). The second defendant, the State Insurance Regulatory Authority of New South Wales (the Authority), has filed a submitting appearance. The original summons was filed on 16 March 2018.
The plaintiff, a compulsory third-party insurer, has admitted liability to the claimant for injuries sustained by her as a result of a motor vehicle accident.
In essence, the insurer claims that it was entitled to have the medical dispute it referred to the Authority referred by the Authority for medical assessment. The insurer submitted that instead of referring the whole medical dispute for medical assessment, the Authority referred only part of it. The insurer contended that the Authority was obliged by the statutory duty imposed on it by s 60 of the Motor Accidents Compensation Act 1999 (NSW) (the Act) to refer the whole dispute and, having failed to discharge its statutory duty, ought be ordered to do so.
All references to legislation in these reasons are references to the Act, unless otherwise stated.

The relevant statutory provisions and authorities

The facts and their relevance to the issues in the proceedings

Although the insurer's claim for relief in this Court is no more complicated than set out above, it is necessary to give some context to the dispute by reciting relevant facts, which are summarised below.
It is common ground that the relevant form for a party which wishes to have a treatment dispute referred for assessment is MAS (Medical Assessment Service) Form 1A, which expressly refers to ss 60(1), 58(1)(a) and 58(1)(b) and indicates on its face that it has been approved by the Authority in accordance with clause 8.1 of the Guidelines.
On 26 May 2017 the insurer lodged a Form 1A (see the heading above Guideline 8.2 above) entitled "Application for Assessment of a Treatment Dispute by the Medical Assessment Service" (the First Application). The First Application included several pages headed "Dispute Information", some of which indicated that they related to past treatment and some of which indicated that they related to proposed future treatment. For example, one such page, which related to proposed future treatment indicated that the type of treatment in dispute is "psychological counselling". The details listed for that dispute are "0-6 sessions CBT [cognitive behavioural therapy] counselling". The insurer attached its submissions to the Form 1A. Under the heading "Dispute" the insurer said: "Dispute This application has been prepared on behalf of the insurer. The claimant's solicitor particularized the claim to be advanced under cover of their letter dated 27 March 2017 (A5). We await further and better particulars on any award for past and future treatment that the claimant may be replying upon. NRMA wrote to the claimant's solicitors on 15 May 2017 (A6) advising the claimant that past and future out of pocket and treatment expenses and domestic care expenses were disputed for all treatment after August 2016, on the basis that any Injury sustained in the accident had resolved and any further treatment was not causally related or reasonable and necessary. This dispute is based on the report of Dr Lim (A7). The Insurer sets out the dispute as follows: 2.1 Past domestic assistance (a) $26.87 per hour for Zero (0) to Eight (8) hours per week of gratuitous domestic care and assistance, to help with tasks such as vacuuming, cleaning bathroom and kitchen, cooking, some washing, some ironing and shopping for heavy groceries from 1 February 2016 to the date of the assessment. 2.2 Future domestic assistance (a) $45 per hour for Zero (0) to Six (6) hours per week of commercial domestic care and assistance, to help with tasks such as cooking, some washing, ironing, and cleaning, vacuuming and shopping for groceries, from the date of the assessment, ongoing and for the claimant1s life expectancy. 2.3 Past treatment (b) Consultations with GP, Dr Wang on 1 September 2016, 6 September and 6 October 2016 and any other consultation after August 2016; 2.4 Future treatment (c) Consultations with' GP, Dr Wang or other - as required from the date of the assessment and ongoing for the claimant's life expectancy; (d) Psychological counselling - 0 to 6 sessions CBT counselling. . . . 3.2 Reliability The insurer refers the Assessor to the report of Dr Michael Lim (A7 - page 9 and 10). Dr Lim was of the view that it was possible the claimant suffered a minor soft tissue injury which had resolved within a few weeks of the accident He noted: I am avoiding the use of more specific anatomical descriptions, such as cervical spine, thoracic spine and lumbar spine, because I came across no real evidence of spinal injury, it would be unlikely the subject accident could result in widespread spinal injuries. More than likely, the injuries were muscular strains. . . . The disabilities were not supported by objective clinical evaluation. We confirm that the claimant has a long history of pre*accident problems with her neck, shoulders and back. However, when she was examined in relation to her previous claim the assessors noted evidence of abnormal illness behaviour and Dr Lim noted no disability on objective clinical evaluation. The Insurer submits that the Assessor should have careful regard to the contemporaneous records of the claimant's alleged disability before and after the subject accident, particularly in circumstances where the claimant has obtained damages for $110,000 from QBE only one month prior to the subject accident. . . . 4 Injuries . . . The insurer disputes that any treatment or domestic care claimed from August 2016 to date and into the future is attributable to any injuries sustained in the motor vehicle accident of 25 October 2015. . . . The insurer submits that there should be a finding that no ongoing treatment or domestic assistance which is causally related to injury sustained in the subject accident and is not reasonable and necessary after August 2016."
Mr Robinson explained that the reason for the range of "0-6" being specified was that it ensured, not only that the assessor would have to decide whether the claimant reasonably required such sessions as a result of the accident but also that the assessor would be obliged to include the determination in the certificate, which would therefore be conclusive evidence. If the dispute was merely about whether 6 sessions were required, the certificate could merely state either that 6 were or were not required. Even if the assessor said in the reasons that 4 sessions were required, this would not be conclusive unless it was in the certificate: Pham v Shui at [96].
On 24 July 2017 the claimant filed a reply using the MAS Form 1R in which she set out and attached documents on which she relied, together with her submissions in response, in which she set out her claims for past and future treatment.
On 31 July 2017 the Authority wrote to the parties and said: "The Case Manager will review the dispute on or before 8 August 2017 to determine how the matter will proceed and will advise you of the outcome."
By letter dated 7 August 2017 the Proper Officer responded to the parties in part as follows: "I have read the material provided by the parties in this matter. I have determined that the treatment matter is not ready for assessment and will be deferred until further information Is received. On the information before me, there are insufficient details about a number of disputes for the matter to be assessed by a MAS Assessor. Accordingly, further clarification of the disputes is required, with the view to preparing this matter for assessment. In particular, I note that the parties have listed some treatment disputes as 'any other' 'after January 2016' in relation to the number of disputed sessions. This is not a specific medical dispute capable of assessment by a MAS Assessor. Accordingly, please specify the treatment sessions within the listed periods. Further information required Please provide the following information to MAS by 21 August 2017. For past GP consultations: - The precise number of consultations in dispute For future GP consultations: - The frequency of the proposed consultations (eg/weekly, monthly, annually etc) - How many consultations are proposed for each frequency - Letter or notes from the treating doctor supporting the proposed treatment Other disputes The following disputes are sufficiently defined and may be allocated at the next Allocation Review: - past domestic assistance - proposed domestic assistance - proposed counselling Further review If clarification of the disputes is not received by 21 August 2017, the matter may be allocated without referring the disputes which have not been clarified. I will review this matter after receipt of the information or after 21 August 2017.I will advise the parties of the outcome of the review on or before 28 August 2017."
By letter dated 17 August 2017 the insurer responded by confirming its position, based on Dr Lim's assessment, that any treatment and care beyond the first 12 weeks post-accident was not reasonable or necessary and was not causally related to the injury sustained in the accident.
On 17 August 2017, the insurer lodged another Form 1A (the Second Application). It annexed various pages, as before, which identified past treatment or proposed treatment which was disputed. Once again, it expressed the dispute in terms of a range. For example, proposed future treatment of physiotherapy was expressed as "0-1 consultations per fortnight with physiotherapist from the date of the assessment, ongoing for the claimant's life expectancy." The insurer's submissions which accompanied the Second Application confirmed that, in light of further material from the claimant, it had amended its application and wanted the Second Application to be referred.
The following day the Authority wrote to the parties in the following terms: "The parties appear to have a number of preliminary disputes, including whether certain treatment relates to a workers compensation claim or the current motor accident claim. I also note that the insurer, in response to further particulars, has made substantial changes to the list of treatment disputes to be referred for assessment. The nature and scope of the disputes now seems to be contained in various documents and submissions. In order to assist in the appropriate allocation of the disputes, the following information is requested: The claimants' solicitor is requested to confirm, on or before 25 August 2017: • The complete list, to date, of past and future treatment requested by Kong Lai Kai In relation to the subject motor vehicle accident • The complete list, to date, of past and future treatment requested by Craig Cameron in relation to the subject motor vehicle accident • The specific details of the above requests for treatment (e.g. the number of sessions/consultations; dosage and frequency of medication; etc.) The Insurer is requested, by way of response, to clarify on or before 1 September 2017: • Which of the treatments listed by the claimants, in response to the above requests, the insurer disputes are causally related to the subject accident • Which of the treatments listed by the claimants, in response to the above requests, the insurer; disputes are reasonable and necessary • The scope of any such dispute (e.g. whether the insurer disputes the treatment entirely or a specific range/amount) I confirm that the above is for the purpose of clarifying the nature and scope of the treatment disputes. The parties are not required to provide medical evidence in support of the above. However, either party may lodge relevant additional material in support of the above information, by the corresponding dates above. I will review both matters after receipt of the above and will advise of the outcome of the review on or before 8 September 2017."
Mr Robinson contended that this facsimile dated 18 August 2017 was an impermissible attempt by the Authority to interrogate the parties and constituted a breach of the Authority's duty pursuant to s 60(2) of the Act to refer the medical dispute to a medical assessor or assessors. His submissions are set out in more detail below.
On 18 September 2017 the insurer wrote to the Authority and confirmed that it had paid for certain items but that it disputed the balance of the claim "in its entirety". It concluded the letter as follows: "It remains the insurer's position that treatment and care after January 2016 is not reasonable and necessary. On that basis we have re-drafted an amended Form 1A setting out the final dispute for allocation to an Assessor."
The insurer attached a further application (the Third Application), which, in substance, identified on separate pages (as above) the claims made by the claimant and expressed the "dispute" in terms of a range from zero to the amount (in terms of time, sessions or doses of medication) which the claimant claimed. The insurer confirmed that it relied on its submissions dated 17 August 2017, which accompanied the Second Application.
Of present relevance, the Third Application contained the following treatments in dispute: Type of treatment in dispute List all Details for this dispute Psychological counselling 0-12 CBT sessions counselling GP consultation 0-6 Consultations with GP, Dr Wang or other GP, per year, from the date of the assessment, ongoing for the claimant's life expectancy Physiotherapy 0-12 Consultations per year with physiotherapist from the date of the assessment, ongoing for the claimant's life expectancy Endep 25 mg - 2 tablets/day Movicol - 1-2 sachets/day Medication Mobic 7.5mg - 1-2 tabs/day Temazepam 10 mg 1 tab/day from the date of the assessment, ongoing for the claimant's life expectancy

In respect of each treatment dispute, the insurer identified as the reason for not paying the treatment: "not related to injuries caused by the accident" and "not reasonable and necessary". The insurer contended that none of these four items have, to date, been referred, in breach of the Authority's duty pursuant to s 60(2).
On 22 September 2017 the Authority wrote to the parties to inform them that the dispute was ready for assessment. The letter contained 48 questions which were said to be in dispute. There were, in effect, 24 pairs of questions, the first of which asked whether the treatment was reasonably necessary having regard to the injury sustained in the accident and the second of which asked whether the treatment was causally related to the injury sustained in the accident. For example, with respect to consultations with a psychiatrist, the Authority posed these questions: "43 Whether 12 proposed consultations with a psychologist is causally related to the injury sustained In the subject accident. 44 Whether 12 proposed consultations with a psychologist is reasonable and necessary in relation to the injury sustained In the subject accident."
On 5 October 2017 the Authority wrote to the parties and informed them that MAS would assess their dispute. It annexed copies of the letters of referral which it had written to the two assessors, Dr Cameron and Dr Parmegiani.
On 20 November 2017 the insurer wrote to the Authority and requested amendments to the questions which had been referred to include the ranges which had been in its applications referred to above "to ensure that the referral reflects the dispute between the parties and the production of a meaningful certificate." For example, it requested that instead of asking Dr Cameron whether 6 consultations with a GP were required, the Authority ask whether "1-6" consultations with a GP were required, as the insurer had indicated in its various applications.
On 21 November 2017 the Authority wrote to the claimant seeking her view on what the insurer had proposed, to which the claimant's solicitors responded that they would not consent. On 24 November 2017 the Authority wrote to the parties in the following terms: "I refer to the insurer's request to amend the referred disputes for the two above matters. I note that the claimants have indicated that they do not consent to the amendments. I have brought the matter to the Proper Officer and the Proper Officer has determined: - At the request of MAS, the claimants clearly identified the specific treatment requested; - The Insurer then responded to those specific requests; - The Claimant has not requested a range but a specific number (e.g 2 tablets, not 1-2; 12 consultations, not 1, 2, 3...etc); - Accordingly, the treatment dispute is as previously advised and as per the current referraI; - It is open for the MAS Assessor/s to comment on, in the body of the certificate/s, if any treatment or part thereof within the range is causally related or reasonable and necessary (e.g if the Assessor determines 2 tablets are not reasonable and necessary it is open for the Assessor to state whether 1 would be). Accordingly, the insurer's request for the amendment to the referral is denied and the matter will proceed as previously advised."
Mr Robinson submitted that the letter of 24 November 2017 indicated that the Authority was refusing to refer the medical dispute which the insurer had referred to it under s 60(1).
The insurer responded to the Authority on 24 November 2017 and said there was a dispute about whether treatment was required at all and, if so, how much. The insurer contended that the range (such as 0-6) ought be referred to the assessors. The claimant, who was invited to respond to the insurer's proposal, did not consent to the insurer's proposal.
On 28 November 2017 the Authority responded as follows: "I refer to below correspondence and confirm that the Proper Officer's decision stands. The treatment disputes, as referred, will not be amended in the absence of the claimant's consent. As stated by the claimant below, the claimant provided a complete list detailing the treatment claimed. The claimant identified the specific number of tablets/consultations for each requested past and future treatment (where applicable). The insurer has confirmed which claimed treatment it denies and confirmed those requests are denied entirely. Accordingly, the treatment disputes have been correctly referred as 'all or nothing'. That is, the claimant requests a specific amount of treatment and the insurer denies any level of that treatment is causally related to the accident and/or is reasonable and necessary, if the claimant makes a claim for a range of treatment, it is open for the claimant to specify this. In Instances where the claimant has provided a range (such as 1-2 Mobic tablets), the referral reflects this. While I note the insurer's submissions in respect of its preference for the referral, in the absence of consent from the claimant MAS does not propose to amend the referral to the Assessor. As previously advised, if the Assessor determines the referred amount is not reasonable and necessary, it is open for the MAS Assessor/s to state, in the body of the certificate, if any lesser amount of treatment would be."
Mr Robinson submitted, for reasons given in more detail below, that the approach taken by the Authority in the letter set out above was "entirely the wrong approach in law", which would warrant an order being made under s 65 or s 69 of the Supreme Court Act to require the Authority to refer the balance of the dispute.
On 8 December 2017 the insurer wrote to the Authority setting out its arguments in support of its contention that the Authority had failed to discharge its statutory duty. These largely mirror the submissions the insurer has made in support of its claim for relief in this Court. It is sufficient to set out the insurer's argument about the numerical range, as follows: "Where the claimant claims 12 consultations per year and ongoing for physiotherapy for the future, the insurer also disputes 11,10, 9 and 8 and so on. The dispute between the parties is there between 0 and 12 consultations per year and the represents the dispute. In the absence of any evidence from the claimant that she does not press any claim for fewer sessions than 12, the Proper Officer is failing to property 'refer the dispute' as required by the guidelines. The case law makes it clear that for the Proper Officer to 'refer a dispute' it is not a requirement that the claimant claim specific hours, ie claim '12,11,10,9 and 8 and so on' but only that It was 'open to SIRA [the Authority] to consider that there was a medical dispute, being a disagreement about a matter under Pt 3.4, SIRA was obliged under s 60(2) to refer it for medical assessment'. It is submitted that it is clearly open to the Proper Officer to consider that there is a dispute over all consultation between 0 and 12 and as a result SIRA is obliged to refer the 'range'."
On 18 December 2017 the Authority wrote to the parties confirming that the decision on the referral would not be changed.
Later that day, the insurer wrote to the Authority to seek a signed form of the decision on 18 December 2017 (which had been provided by facsimile) and contended that it was "infected by errors of law". The insurer specifically reserved its right to seek "rectification in the Administrative Division", which I take to be a reference to a claim for relief by way of judicial review in this Court.
Subsequently Drs Cameron and Parmegiani conducted an assessment of the matters referred to them by the Authority. They issued certificates on 27 and 30 January 2018 respectively. A further certificate was issued by Assessor Castle-Burton on 9 April 2018, which related to the assessment for domestic assistance. The insurer has sought review pursuant to s 63 of the Act of the certificates issued by Dr Parmegiani and Assessor Castle-Burton.

Whether summons was filed within time

Mr Robinson submitted that no extension of time was required as the summons was filed on 16 March 2018, which was within three months of the operative decision or act, being the decision or referral on 18 December 2017: Uniform Civil Procedure Rules 2005 (NSW) (UCPR), r 59.10(1). Part 59, "Judicial Review Proceedings" applies to proceedings under ss 65 and 69 of the Supreme Court Act: UCPR 59.1(1)(a).
Ms Allars contended that the operative decision was made on 22 September 2017 and, accordingly, an extension of time was required. She contended that the insurer had been guilty of considerable delay, not least because, at least by 18 December 2017, it had formulated the case it would bring in this Court, as appears from its letter of that date to the Authority. Ms Allars contended that the insurer had little, if anything, to gain from the proceedings since "it remained open to the medical assessors to deal with specific claims made by [the claimant] and also to indicate what was reasonable and necessary within the range below the specific amounts claimed." This contention does not take account of the important distinction between what is certified in the certificate (which is conclusive evidence) and the reasons which form part of the certificate (which, though evidence, are not conclusive).
Ms Allars also submitted that the claimant would be prejudiced if an extension were granted since, in the meantime, on 30 January 2018, Dr Parmegiani had issued a certificate which was favourable to the claimant in respect of the matters referred to him. Ms Allars contended that the insurer was guilty of "acquiescence" by refraining from commencing proceedings until after two of the medical assessors had issued certificates.
I am not persuaded that an extension of time is necessarily required. While the Authority indicated that it would refer certain matters for medical assessment prior to 18 December 2017, the matter was still the subject of correspondence between the parties and the Authority up until that time. It would, in my view, have been open to the Authority to consider the insurer's submissions and refer the whole of the insurer's medical dispute for assessment, had it been persuaded by the insurer's submissions. This Court ought not, by taking too pedantic a view of when a "decision" is made or action is taken, create an imperative to commence proceedings before the issue has been sufficiently ventilated with the Authority. If the insurer had commenced proceedings shortly after 22 September 2017, it might have been criticised for not attempting to resolve the matter otherwise than by an application for judicial review.
If an extension of time is required, I would grant such an extension for the reasons set out above. I am not persuaded that there is any prejudice to the claimant. The insurer does not seek to challenge, by judicial review, the certificates issued in respect of those parts of the medical dispute which have already been referred to assessors; it merely seeks to have the balance of the dispute referred. The insurer has persistently sought to have the whole of its dispute referred to a medical assessor. At no time has it indicated that it does not press for the balance of its medical dispute to be referred.
Further, there is a question whether what is at stake is a "decision" in any event, since the principal complaint made by the insurer is that the Authority failed to discharge its statutory duty. There is a degree of artificiality in construing any alleged failure to refer the whole of a medical dispute for assessment as amounting to a "decision", particularly where the existence of a medical dispute is not, as decided by Scott, a "jurisdictional fact". While the summons, in all its iterations, including the further amended summons, seeks relief under s 69 in the nature of certiorari, it became apparent in the course of oral argument, that the insurer's preferred basis for relief (which was also sought in the further amended summons) was mandamus, whether so-called "statutory mandamus" under s 65 or relief in the nature of mandamus, as claimed in prayer 5 of the further amended summons. Section 65 provides that the Court may order any person to fulfil any duty in the fulfilment of which the person seeking the order is personally interested. I consider the claim for an order in the nature of mandamus, whether under s 65 or s 69, to be a more appropriate remedy in the circumstances of this case. Section 65 does not require jurisdictional error (although I consider there to be one in the present case); the insurer is plainly "personally interested"; and s 60 imposes a duty on the Authority.

Whether the basis for the claim for relief has been made out

Ms Allars contended that the ambit of the medical dispute which was required to be referred under s 60(2) was a factual matter (although not a matter of jurisdictional fact) for the Authority to determine. She submitted that as long as the determination as to what ought be referred was conducted in good faith, there was no basis to challenge it, except if it involved a "decision". She submitted that any such decision could only be challenged by reference to the principles set out in Minister for Immigration and Citizenship v Li (2013) 249 CLR 332; [2013] HCA 18 at [76] (Hayne, Kiefel and Bell JJ). Ms Allars accused the plaintiff of trying to "dress up" what was essentially a factual matter for the Authority to determine, whether there was a medical dispute and what its limits were, under the guise of an alleged statutory duty. She submitted that it was not for a party unilaterally to determine what the medical dispute to be referred was, since that was, pre-eminently, a matter for the Authority. I am not persuaded that this is the appropriate analysis.
In my view, the insurer was entitled, under s 60 of the Act, to have the medical dispute which it referred to the Authority referred to the assessors and not merely an expurgated version of it which had been filleted and edited by the Authority in consultation with the claimant. The reference in s 60(2) to "the medical dispute", is a reference to the medical dispute which a party (or court or a claims assessor) has referred to the Authority. I regard it as of importance that the same provision applies to the referral of a dispute by a party or a court or a claims assessor. It could hardly have been the intention of Parliament to confer a power on the Authority to redraft the terms of a medical dispute referred by a court of claims assessor, as opposed to ascertaining that it corresponded with the definition of "medical dispute" in the Act (cf. Motor Accidents Authority v Mills, where the purported excision of the causation question from the dispute about permanent impairment brought it outside the definition in s 58(1)(d)).
I accept Mr Robinson's submissions that "this micromanaging and dictation of the nature and scope of a medical dispute is impermissible." The approach taken by the Authority has deprived the insurer of having its medical dispute result in a certificate which provided conclusive evidence as to what, if any, treatment was required within the range which included at the high end, what the claimant was claiming and, at the low end, what the insurer contended to be appropriate (zero). The Authority's disregard of the express terms of s 60(2) has permitted the Authority (with the assistance of the claimant) to create a situation whereby the medical assessors are entitled to certify, for example, either zero consultations, or ten consultations, but nothing in between and any reference to any other number in the assessors' reasons can effectively be disregarded because, although it is evidence, it is not conclusive evidence. Such tactics ought not be permitted to compromise the right of a party to have its medical dispute referred to a medical assessor.
The insurer's medical dispute comprehended the questions whether, for example, any consultations of a particular variety were required and, if so, how many between the number claimed by the claimant and zero. The claimant's version of the dispute (which the Authority adopted) was whether she was entitled to the number of consultations she claimed or zero. Plainly the insurer's dispute was wider than the claimant's dispute. By referring only the claimant's version (in the example above), the Authority refused to refer part of the insurer's medical dispute. What Ward JA said of the dispute in Scott, that "the debate as to whether there was in fact a dispute as to the claim . . . bordered on the farcical", could be said of the contention that the matters comprehended in the insurer's medical dispute did not correspond to the "medical dispute" which the Authority was obliged to refer to a medical assessor.
Despite the insurer's dispute (which was plainly a medical dispute) being referred to the Authority, and the parameters of the dispute being clearly defined, the Authority erroneously considered itself to be entitled to frame the dispute which it referred to a medical assessor by reference to the claimant's particularisation of it.
The Authority does not have a discretion whether to refer a medical dispute, it has a duty to do so. While it is, as Basten JA said in Scott, for the Authority to determine whether what has been referred to it is a "medical dispute", it has no discretion, once the general character of the dispute has been identified, to refuse to refer whole, or part, of it. Nor, as Ward JA said in Scott is it for the Authority to determine whether the dispute is "genuine" or otherwise. The ambit of the medical dispute to be referred is determined by the ambit of the dispute referred to the Authority under s 60(1). There is no need for the other party to agree to the ambit, which is determined by the referring party. I am satisfied that the Authority, in failing to refer the whole of the insurer's medical dispute, has committed a jurisdictional error in that it has, in misconceiving its statutory duty, failed to discharge it: Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323; [2001] HCA 30 at [41] (Gaudron J).
One consequence of the Authority's failure to refer the insurer's medical dispute was that the insurer is subject to the prospect that, if the assessor considers a lesser number of consultations to be required than the number claimed by the applicant, the insurer will, at best, have a finding to that effect in the reasons. Thus, the insurer will be deprived of conclusive evidence of the number reasonably required, such would have been provided by certification, had its medical dispute been referred. I am satisfied that the Authority has failed to discharge the duty imposed on it by s 60(2) of the Act in that it has not referred the whole medical dispute which the insurer referred to it in its Third Application.
I note for completeness that compliance with the Guidelines does not absolve the Authority of non-compliance with the Act. It is not necessary to express a view on whether adherence to the Guidelines has resulted in non-compliance with the Act in the present case.

Whether relief ought be granted and the nature of any such relief

Not every failure to comply with a statutory duty will warrant the grant of relief. Whether it is appropriate to grant relief will depend in part on the consequences for the aggrieved party of the failure. The question was considered in Dominice v Allianz Australia Insurance Ltd [2017] NSWCA 171; (2017) 81 MVR 249 where a claimant failed in an application to challenge the decision of the Proper Officer to refer an assessment for review pursuant to s 63. Basten JA emphasised that the question was to be determined by reference to the effect on the legal rights of the party of the decision or action. His Honour said at [7]: "Where the proper officer refuses to grant a review on the basis of a legal misunderstanding as to the scope of his or her powers, there may well be grounds for judicial review of that decision. Its effect may be to deny a claimant an opportunity to obtain damages for non-economic loss. However, when the error is said to have resulted in the failure of the proper officer to refuse a referral, the legal consequences are quite different. If the basis of her suspicion had been misconceived, one would expect that misconception to be identified by the review panel, which would dismiss the application and confirm the original certificate of assessment. A judge faced with a judicial review application in such circumstances, at least where the bona fides of the proper officer was not in question, would have strong reasons for rejecting the application on discretionary grounds." [Footnotes omitted; emphasis added.]
Another relevant factor in deciding whether relief ought be granted is whether the duty is amenable to mandamus, or an order of that kind. In some cases a statutory duty is expressed in such broad language that it is not appropriate to order that it be exercised: see, for example, Weaven v Department of Justice [2012] VSC 582 at [6]-[12] (Macaulay J). In the present case the Authority (through its Proper Officer) has, on the basis of a legal misunderstanding as to the scope of its powers, refused to refer the whole of a medical dispute. The effect of that refusal has been to deprive the insurer of the right to have its medical dispute, that is, the dispute defined in accordance with its Third Application, determined. Although the Authority has referred part of that medical dispute for assessment under s 60(2), there remains another part which has not yet been referred and which the Authority has refused, despite detailed submissions from the insurer, to refer. This is no mere procedural matter. It is not to the point that there is no allegation of bad faith on the part of the Proper Officer or the Authority itself. Although it might be possible to construe the Proper Officer's failure as a decision, which is legally unreasonable as it is based on a misapprehension of the content of a statutory duty, this is not, as I have said above, my preferred analysis.
I am satisfied that, in these circumstances, it is appropriate to grant relief to the insurer, who is plainly an applicant of sufficient standing who has, in my view, proved that the Authority has failed to perform a duty of a public nature, being the statutory duty in s 60(2) of the Act. As the correspondence set out above indicates, the Authority has refused to comply with the insurer's specific demand that the duty be performed.
I have considered whether it is necessary or appropriate to grant relief in the nature of certiorari in addition to declaratory relief and relief in the nature of mandamus. For reasons given above, I do not consider it to be necessary to grant such relief since I do not propose to quash any part of the referral that was actually made by the Authority, which has resulted in assessments, the validity of which is not challenged on judicial review. Nor am I satisfied that the Authority's conduct, which amounts to a refusal, ought properly be construed as a "decision" which would be amenable to relief in the nature of certiorari. In these circumstances, it is unnecessary to identify what constitutes "the record" for the purposes of determining whether there is an error of law on the face of the record within the meaning of s 69(3) of the Supreme Court Act.
The Authority's conduct amounts to a refusal or failure to exercise jurisdiction, or power, which the Act requires it to exercise by referring the insurer's medical dispute to a medical assessor, or assessors and thus does not require an order for certiorari: Public Service Association of South Australia Incorporated v Industrial Relations Commission of South Australia (2012) 249 CLR 398; [2012] HCA 25 at [57] (Gummow, Hayne, Crennan, Kiefel and Bell JJ).

The form of the relief in the nature of mandamus

In addition to making a declaration, I am disposed to make an order which has the effect of requiring the Authority to perform its statutory duty under s 60(2) in respect of the part of the medical dispute contained in the insurer's Third Application that has not already been referred. The form of the order is a matter of some difficulty. Although I have the power to order that an undischarged statutory duty be discharged, I am not entitled to prescribe how the duty ought be discharged. As Hargrave J said in White v Lacey [2012] VSC 175 at [13]: "[t]he appropriate relief is to order a re-exercise of the public duty; not to compel the manner of performance of that duty." Thus, while I can make an order to the effect set out above, I could not specify, for example, that any particular part of the medical dispute be referred to any particular medical assessor, such a matter being a matter within the purview of the administrative responsibilities of the Authority.
The insurer has provided a bundle of documents, which were marked for identification MFI1. It contended that these documents contain the parts of the Third Application which were not referred. The benefit of crafting an order by reference to MFI1 is that the Authority will be appraised of precisely what it must refer for medical assessment and could simply refer pages 1-5 of MFI1 to the appropriately qualified medical assessors. This would accord with the course which appears to have been adopted by the Authority in Scott where the terms of the dispute from the referring party's (the insurer's) application for referral were adopted in terms by the Authority when it made the referral.
Both Mr Robinson and Ms Allars confirmed their readiness to make submissions on draft orders or to assist with the crafting of orders to give effect to these reasons. In these circumstances I propose to make a declaration at the conclusion of these reasons but merely to indicate, in broad form, what I have in mind by way of a mandatory order so that any submissions from the parties can be directed to the draft. However, I remain open to persuasion that the proposed order should be crafted in a different way. In my view, the proposed order could be made under either s 65 or s 69, although s 65 might be a wider power in the context of a case such as the present: see Dickinson v Perrignon [1973] 1 NSWLR 72 at 83 (Street CJ in Eq).

Proposed orders

Having considered the draft orders proposed in the further amended summons, I am not presently persuaded that the orders sought in prayers 1, 2, 3 or 4 are appropriate since they require setting aside, or quashing, certain "decisions" of the Authority or are premised on a "decision" being the relevant juridical act. I consider prayer 5, which seeks statutory mandamus, to be more appropriate although I am not presently persuaded that an order ought be made in precisely those terms.
For the purpose of providing the parties with an opportunity to be heard on the form of orders to give effect to these reasons, I propose, by way of indication only, the following order, the power for which derives from s 65 of the Supreme Court Act: 1. Order the Authority to arrange for the medical dispute in pages 1-5 of MFI1, which was referred to it by the plaintiff in its application dated 18 September 2017, to be referred to one or more medical assessors in accordance with s 60(2) of the Motor Accidents Compensation Act 1999 (NSW).

Costs

As neither party contended that costs ought not follow the event, I propose to order the first defendant to pay the plaintiff's costs of the proceedings.

Orders

For the reasons set out above, I make the following orders: 1. To the extent necessary, pursuant to Uniform Civil Procedure Rules 2005 (NSW), r 59.10, extend the time within which the plaintiff is entitled to commence these proceedings to 16 March 2018. 2. Declare that the second defendant has, by referring only a portion of the medical dispute referred to it by the plaintiff in its application dated 18 September 2017, failed to comply with the statutory duty imposed on it by s 60(2) of the Motor Accidents Compensation Act 1999 (NSW) to refer the plaintiff's medical dispute to one or more medical assessors. 3. Order the first defendant to pay the plaintiff's costs of the proceedings. 4. Direct the parties to exchange written submissions on the draft order proposed in paragraph [81] of these reasons within 7 days and any replies within a further 7 days, such submissions to be provided by email to my Associate. 5. Grant liberty to the parties to re-list the matter for argument on the form of the draft order referred to in (3) above, if thought necessary, by contacting my Associate. 6. Grant liberty to apply on 3 days' notice.

Amendments 22 June 2018 - [82] corrected to read "... I propose to order the first defendant to pay the plaintiff's costs of the proceedings." pursuant to r 36.17 of the Uniform Civil Procedure Rules 2005 ("the slip rule"). [83] amended to include additional order "Order the first defendant to pay the plaintiff's costs of the proceedings." 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: 22 June 2018

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Judgment (12 paragraphs)

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Legislation Cited (3)

Cases Cited (25)