Insurance Australia Ltd t/as NRMA Insurance v O'Rourke

Supreme Court of NSW|2017-04-21|Before: Davies J

Solicitors: Hall & Wilcox (Plaintiff) Gerard Malouf & Partners (First Defendant) Crown Solicitors Office (Second & Third Defendants) File Number(s): 2016/261881

Judgment

The First Defendant was injured in a motor vehicle accident on 20 March 2011. She lodged a claim for compensation with the Plaintiff which was the CTP insurer of the vehicle at fault for the accident.
The Second Defendant was the CARS (Claims Assessment and Resolution Service) Assessor who assessed the First Defendant's claim arising from the injuries she suffered in the accident. The Claims Assessor assessed the claimant's claim at a General Assessment Conference held on 14 April 2016.

The accident

The First Defendant was travelling in the front seat as a passenger in a vehicle driven by her husband. They were driving along what was then known as the F3 freeway, now the M1, near Mount White RMS Inspection Station. It was raining heavily and water had pooled on the surface of the road causing the car to aquaplane out of control. A multivehicle accident occurred.
The First Defendant was extracted from the vehicle by the Rescue Squad which required cutting twisted metal that had trapped the First Defendant. She was transported by ambulance to Royal North Shore Hospital. The Assessor recorded that a letter from the hospital records said: No LOC [loss of consciousness], no head injury, no neck pain. PT complained of pain over her left clavicle, left hip and lower back.
At the time of the accident the First Defendant was working as an assistant aged care nurse. The First Defendant suffered from significant pre-accident health complaints having been morbidly obese from the age of five. She was terminated from her employment in September 2011.
From 2013 her parents came to live with her. She commenced to receive a carer's allowance in respect of her mother in July 2013 of $648 per fortnight.

The reasons of the Assessor

The Assessor noted at paragraph 8 of her Reasons three issues that arose, two of which are relevant to the present proceedings. They were: (1) Are the First Defendant's current disabilities causally related to injuries sustained in the motor vehicle accident? (2) Has the First Defendant a residual earning capacity? But for the accident, would she have retired from her employment to care for her mother?
The Assessor accepted that the First Defendant's injuries and ongoing disabilities including her right knee and low back problems were caused by the accident. There is no challenge to that finding in these proceedings.
The Assessor also held that the First Defendant had no residual earning capacity. The Assessor noted that the First Defendant said that she might be able to work part-time in an office but there were no employment opportunities in the area in which she lived. The Assessor noted that the Plaintiff relied on a vocational assessment by Mr Peter Defina. In his job match report he considered the most appropriate vocational choices open to the First Defendant including assistant in nursing, personal care assistant, general clerk, admissions clerk, receptionist or sales assistant. The Assessor noted that the First Defendant confirmed that there were very few job opportunities in her area, and the Assessor said that without evidence from Mr Defina focusing on job opportunities in the Warialda area, the Assessor preferred to rely on medical opinions.
The Assessor then considered the various medical opinions and said (at paragraphs 35 and 36) that she preferred the opinions of Drs Habib and Teoh both of whom considered that the First Defendant was not fit for any work.
The Assessor then dealt specifically with the carer's allowance and said this: 37. The second argument put forward by Mr Gillis was the proposition that Mrs O'Rourke would have left her employment to care for her mother. Mrs O'Rourke denied this and said the only reason she applied for the carer's allowance for her mother was because she was home, unable to work due to her accident. I accept her evidence. 38. Mr Gillis has provided to me applications and guidance material put out by Centrelink. He suggested at the Assessment Conference that unless Mrs O'Rouke provides in excess of 20 hours of physical support and care for her mother, she would not be entitled to a carer's pension or allowance. I have not identified in the Centrelink material any requirement that the care is only physical care. Therefore, I cannot accept Mr Giilis' argument. 39. There is no other evidence other than Mrs O'Rourke's evidence to the contrary, to support Mr Gillis's submissions.

Grounds of Appeal

In the Summons under the heading "Grounds of Judicial Review" the Plaintiff asserted that the Assessor had made two errors when dealing with past and future economic loss. First, it was said that she applied the wrong legal test in that she had uncontested evidence that on and from July 2013 the First Defendant was earning the sum of $648 per fortnight as a full-time carer from the federal government for her care of her aged mother at the First Defendant's home. The Plaintiff asserted that the Claims Assessor failed or refused to take these earnings into account when calculating the damages for past and future economic loss and instead based her calculations only on the First Defendant's average weekly earnings from her former employment as an assistant aged-care nurse at the time of the motor vehicle accident. This failure was said to constitute an error of law on the face of the record or a denial of procedural fairness, alternatively a failure to take into account relevant considerations in circumstances where the Plaintiff submitted to the Assessor that the carer's pension should be regarded.
The Plaintiff asserted that the second error was that the Assessor wholly failed to take into account the uncontested evidence that the First Defendant was a full-time carer and was earning $648 per fortnight as a carer. This matter was said to be relevant and cogent evidence that the First Defendant had at least some residual earning capacity. The finding that she had no residual capacity was said not to be open to the Assessor and she fell into legal error. She also failed to have regard to relevant material.

Submissions

In written submissions the Plaintiff argued that the First Defendant's employment from July 2013 was her role as caretaker for her mother. That demonstrated the residual earning capacity the First Defendant had. In that way the Assessor erred in not taking into account the earnings she received for carrying out the carer's role.
The further material the Plaintiff provided to the Assessor demonstrated, it was submitted, that the carer's allowance was not paid for only emotional support. The Assessor was said to have wrongly found that there was nothing in the Centrelink material that dealt with physical care.
In substance, the Plaintiff's complaint in the written submissions was a single one, expressed in different ways, in which the Assessor failed in carrying out her task by not equating the entitlement to the carer's pension with residual economic capacity.
The approach taken to the matter during oral submissions placed a very different emphasis on what the Assessor did and failed to do. The emphasis at the hearing concerned the failure of the Assessor to have regard to what was sought in a letter from the Plaintiff's solicitors to the Assessor dated 3 May 2016. To enable that submission to be understood some procedural background is necessary.
The Assessment Conference took place on 14 April 2016. The Assessor noted at paragraph 6 of her Reasons that during the course of the assessment the Plaintiff's solicitor, Mr Gillis, referred to the requirements of applying for a carer's pension through Centrelink. She said: As I have no written evidence from Centrelink, Mr Gillis offered to provide me with this material. 7. To give both parties the opportunity to address this outstanding material, I adjourned the Assessment Conference for four weeks and made directions. I now have this material.
On 27 April 2016 the Assessor forwarded to the First Defendant's solicitors a letter enclosing a Report of First Assessment Conference and Further Directions. The report said this: This claim was listed for an assessment conference on 14 April 2016. Notwithstanding my directions the claimant's solicitor was not in a position to submit the schedule of past treatment expenses and disbursements. In addition Mr Gillis for the insurer asked for the opportunity to provide me and the claimant with Centrelink guidelines on a carer's pension. To enable these outstanding matters to occur I adjourned the assessment conference for 4 weeks and direct the claimant to submit her outstanding material to me and Mr Gillis within 14 days and a further 14 days for Mr Gillis to respond and provide further Centrelink documents if instructed to me and the claimant's solicitor.
On 3 May 2016 the Plaintiff's solicitor wrote this letter to the Assessor: We refer to your direction from the general assessment conducted before you on 14 April 2016. In accordance with your directions we enclose a copy of the following: 1. An Assessment for Carer Payment. 2. Information you need to know about your claim for a Carer Payment/Carer Allowance. 3. Carer Payment and/or Carer Allowance Medical Report. The insurer seeks a direction the claimant provides an authority to Centrelink to enable the claimant's assessment for Carer Payment and the Medical Report that was lodged with her application to Centrelink to be produced to assist you in making your determination. The insurer notes Section A of the carer payment identifies the day to day need cares and cognitive function of the care receiver. The Medical Report of the Care receiver identifies in paragraph 14 the physical needs of the care receiver in determining qualification for a Carers Payment. The insurer submits there is nowhere in the Medical Report or Assessment for Carer Payment for purely "emotional" support as explained at the General Assessment by the claimant. The insurer submits such evidence will allow a fair, independent and proper determination of the basis upon which the claimant is receiving the carer's payment and services provided by the claimant to the care receiver. The documents referred to in the numbered paragraphs of that letter were pro-forma Centrelink documents relating to applications for a carer's allowance.
That letter was sent by email to the Assessor with the email copied to the solicitor for the First Defendant at 9.31am. At 9.37am the Assessor emailed the Plaintiff's solicitor thanking him for the material enclosed with the letter of 3 May 2016. That email was copied to the First Defendant's solicitor.
The First Defendant's solicitor replied at 9.51am explaining why he had not been able to comply with her order about past medical costs. The email, copied to the Plaintiff's solicitor, then went on to say: In relation to the insurer's request for additional Centrelink material, we object to any orders being made granting the insurer access to any further documents particularly in circumstances where the claimant has given evidence. This is an old case and the insurer has had ample time to investigate these issues. To grant the insurer access now once the evidence has been given is totally unfair we submit and thus could result in the case having to be reopened and further evidence be given.
The Plaintiff's solicitor made no response to that email nor did he take any step to pursue further what he had sought in the letter of 3 May 2016. The result was that the next thing that happened was the Certificate and the Reasons for Decision of the Assessor dated 31 May 2016.
The Plaintiff's main complaint at the hearing of this Summons, from the above matters, was that there had been a constructive failure on the part of the Assessor to exercise her jurisdiction because she had failed to deal with the request for a direction that the claimant provide an authority to Centrelink. It was put in the alternative that this was a denial of procedural fairness to the Plaintiff. The matter was characterised as a failure to respond to a substantial argument put by the Plaintiff which was a constructive failure to exercise jurisdiction: AAMI Ltd v Ali [2012] NSWSC 969 at [48].
The Plaintiff said that the purpose of the authority was to obtain the documents from Centrelink so that it could be seen what the basis was for the First Defendant being approved for the carer's allowance. That would be a matter that went to her residual earning capacity by reason of demonstrating what she was physically capable of doing or what she indicated in the application that she was physically capable of doing. It was also said to be a matter that might go to the First Defendant's credit if the matters on the Centrelink documents differed from what appeared in the evidentiary statements of the First Defendant and her husband about what they actually did for the First Defendant's mother.
Senior Counsel for the Plaintiff drew attention to s 94 of the Motor Accidents Compensation Act and portions of the Claims Assessment Guidelines in chapter 16. He submitted that, in the light of clauses 16.2.3 and 16.5 it was not even necessary to resort to the common law to determine that the Assessor had failed in her responsibilities and in that way had not exercised the jurisdiction that she had.
The First Defendant submitted that the approach of the Plaintiff before the Claims Assessor differed from the approach being taken now. It was not argued before the Assessor that the periodic payment of $648 received by the First Defendant should be treated as reducing the First Defendant's damages liability in the manner discussed in Graham v Baker (1961) 106 CLR 340. Rather the Plaintiff's submission had been, the First Defendant submitted, that she as a matter of fact had the capacity to resume employment because of her receipt of the carer's pension. The First Defendant submitted that the Assessor made a contrary factual finding.
The First Defendant submitted that the approach of the Assessor was correct in any event because there was an obligation on the First Defendant to repay an amount to Centrelink and a preclusion period applied.
The First Defendant said that the Plaintiff's submission before the Assessor was that the First Defendant would have left her employment in any event to care for her mother but that was rejected as a matter of fact by the Assessor. The First Defendant said that the second point the Plaintiff made before the Assessor was that physical support and care was required and that was rejected by the Assessor as a matter of fact.
The First Defendant drew attention to ss 197 and 198 of the Social Security Act 1991 (Cth) and in particular to the definition of "care" which was defined as "includ[ing] attention and supervision".
The First Defendant submitted that the Plaintiff was challenging factual findings by the Assessor and seeking to characterise them as legal error.
The First Defendant submitted that there was no obligation on the Assessor as the decision maker in an adversarial process to embark on enquiries herself.

Preliminary matter

At the outset Senior Counsel for the First Defendant read an affidavit of a solicitor, Rita Furfaro, who was assisting the First Defendant's solicitor. That affidavit asserted that a copy of the letter of 3 May 2016 was never sent to the First Defendant's solicitors. She said they had searched their files and there was no indication it had ever been received. The affidavit also annexed a letter from the Commonwealth Department of Human Services dated 1 November 2016 which said that the sum of $58,269.68 was repayable to Centrelink by reason of the damages award made by the Assessor. The letter said also that the First Defendant had a preclusion period commencing 20 March 2011 and ending 23 February 2019 during which period she was not entitled to receive income support from Centrelink.
Senior Counsel for the Plaintiff then tendered copies of the emails referred to at [23] and [24] above. He also objected to the letter from the Department on the grounds of relevance on the basis that the matter identified in the letter was not before the Assessor and it did not go to a fact in issue. I provisionally admitted the letter and said that I would deal with its relevance in the final judgment. It will be dealt with later in the judgment.
The emails at [23] and [24] make clear that the First Defendant's solicitor did indeed receive the letter from the Plaintiff's solicitors to the Assessor dated 3 May 2016 and they responded to the Assessor about it. The complaint made by the First Defendant about not receiving that letter was misconceived.

Legislative provisions

Section 94 of the Act relevantly provides: 94 Assessment of claims (1) The claims assessor is, in respect of a claim referred to the assessor for assessment, 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 (being the amount of damages that a court would be likely to award). (2) Such an assessment is to be made having regard to such information as is conveniently available to the claims assessor, even if one or more of the parties to the assessment does not co-operate or ceases to co-operate. (3) The assessment is to specify an amount of damages. (4) The claims assessor must, as soon as practicable, after an assessment issue the insurer and claimant with a certificate as to the assessment. (5) The claims assessor is to attach a brief statement to the certificate, setting out the assessor's reasons for the assessment. (6) If the Principal Claims Assessor is satisfied that a certificate as to an assessment or a statement attached to the certificate contains an obvious error, the Principal Claims Assessor may issue, or approve of the claims assessor issuing, a replacement certificate or statement to correct the error.
The Motor Accidents Claims Assessment Guidelines, whilst not strictly delegated legislation, are made pursuant to s 69 of the Act. Under s 106 claims assessments are subject to the provisions of those Guidelines. Chapter 16 of the Guidelines relevantly provides: 16.1 In conducting an assessment the Assessor may determine the Assessor's own procedure and is not bound by the rules of evidence and may inquire into any matter in such manner as the Assessor thinks fit. 16.2 The Assessor is to take such measures as are reasonably practicable to: 16.2.1 ensure that the parties to the application understand the nature of the application, the issues to be considered and the role of the Assessor as an independent decision-maker: … 16.2.3 ensure that the parties have an opportunity to have their submissions considered: … 16.4 The Assessor is to take into account the objects of the Act and the objects of CARS at all times. 16.5 The Assessor is to ensure that relevant material is available so as to enable all of the relevant facts in issue to be determined.

Consideration

Mr Robinson SC for the Plaintiff characterised the matter as being a failure by the Assessor to take into account a substantial argument, being what he described as a Rodger v De Gelder point (Rodger v De Gelder [2015] NSWCA 211 at [93]). The result was a denial of procedural fairness or a constructive failure to exercise jurisdiction or both: Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26; (2003) 77 ALJR 1088 at [24]; Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323; [2001] HCA 30 at [81].
In AAMI Ltd v Ali Beech-Jones J said at [48]: There is considerable overlap between this form of error [jurisdictional error] and a breach of natural justice or a constructive failure to exercise jurisdiction. This is so because aspects of those grounds can import a limited "obligation" to consider at least some of the evidentiary material placed before a decision maker (Cervantes at [19] to [22], per Basten JA). Thus, in Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26; 77 ALJR 1088, Gummow and Callinan JJ stated (at [24]) that "[t]o fail to respond to a substantial, clearly articulated argument relying upon established facts was at least to fail to accord Mr Dranichnikov natural justice." In Re Minister for Immigration and Multicultural Affairs; Ex parte Miah [2001] HCA 22; 206 CLR 57, Gaudron J at [81] stated that a failure in that case to address the substance of a person's claim for refugee status was "a clear case of constructive failure to exercise jurisdiction". Hence, and only by way of example, a failure to consider a critically relevant piece of evidence may have happened "in a way that affects the exercise of the power" (Yusuf) because it may reveal that an applicant's case was not addressed or was misunderstood.
In Mitrovic v Motor Accidents Authority of New South Wales [2012] NSWSC 1231 Harrison AsJ set out that passage from the judgment of Beech-Jones J and went on to say: [62] Furthermore a constructive failure to exercise jurisdiction might be disclosed by taking an irrelevant consideration into account or by a failure to take a relevant matter into account: Devic v NRMA Insurance Ltd [2011] NSWSC 1099. …
Earlier, Harrison AsJ set out passages from two important decisions in relation to a constructive failure to exercise jurisdiction. The first was Ex parte Hebburn Ltd; Re Kearsley Shire Council (1947) 47 SR (NSW) 416 where Jordan CJ said (at 420): I quite agree that the mere fact that a tribunal has made a mistake of law, even as to the proper construction of a statute, does not necessarily constitute a constructive failure to exercise jurisdiction ... But there are mistakes and mistakes; and if a mistake of law as to the proper construction of a statute investing a tribunal with jurisdiction leads it to misunderstand the nature of the jurisdiction which it is to exercise, and to apply a "wrong and inadmissible test": ... or to "misconceive its duty", or "not to apply itself to the question which the law prescribes": The King v War Pensions Entitlement Appeal Tribunal; or "to misunderstand the nature of the opinion which it is to form": The King v Connell (1944) 69 CLR 407 at 432, in giving a decision in exercise of its jurisdiction or authority, a decision so given will be regarded as given in a purported and not a real exercise of jurisdiction, leaving the jurisdiction in law constructively unexercised, and the tribunal liable to the issue of a prerogative writ of mandamus to hear and determine the matter according to law ...
Associate Justice Harrison then went on to say: [59] This passage has been adopted in this court (see for example Galluzzo T/As Riverwood Chemworld Chemist v Dianne Little (No 2) [2012] NSWSC 324 at [19]) and by the High Court. In Re Minister for Immigration and Multicultural Affairs; Ex parte Miah [2001] HCA 22; (2001) 206 CLR 57, Gaudron J said at [80]: The classic statement as to what constitutes constructive failure to exercise jurisdiction is that of Jordan CJ in Ex parte Hebburn Ltd; Re Kearsley Shire Council. That statement, which has been approved by this Court on numerous occasions identifies a constructive failure to exercise jurisdiction as occurring when a decision-maker 'misunderstand[s] the nature of the jurisdiction which [he or she] is to exercise, and ... appl[ies] "a wrong and inadmissible test"... or ... "misconceive[s his or her] duty," ... or "[fails] to apply [himself or herself] to the question which the law prescribes"... or "... misunderstand[s] the nature of the opinion which [he or she] is to form"'." (citations omitted)
In the present case, I do not think that the Assessor misconceived her duty, nor did she misunderstand the nature of the jurisdiction she sought to exercise. As I have noted, the Plaintiff sought to characterise what the Assessor did as a failure to respond to a substantial argument being the need for the further material that could only be produced by the obtaining of an authority from the First Defendant. Two things tell against that submission.
The first relates to the matters of procedure that I have set out. The Assessment Conference took place on 14 April. The Assessor had evidentiary statements from the First Defendant and her husband which included evidence about what each of them did for the First Defendant's mother as carers for her. Each was cross-examined about that evidence. Submissions were made, relevantly, about the First Defendant's motivation in ceasing work (it was submitted that she would have retired from her employment to care for her mother from the beginning of 2013 irrespective of the accident) and about her residual earning capacity related, in particular, to the fact that she had a carer's allowance with what that implied for her residual earning capacity.
The Plaintiff sought, in effect, that the Assessor not give her final decision so that further material relating to the carer's allowance could be obtained and forwarded to the Assessor. That material was what was contained in the letter of 3 May 2016. When the material was sent further submissions were made on the basis of that material with the second, third and fourth last paragraphs of the letter making specific reference to those documents. The letter then concluded by saying: The insurer submits such evidence would allow a fair, independent and proper determination of the basis upon which the claimant is receiving the carer's payment and services provided by the claimant to the care receiver.
Inserted into the middle of that letter was a request for a direction from the Assessor that the claimant provide an authority to Centrelink so that the documents she lodged with Centrelink could "be produced to assist you in making your determination". There is no evidence to suggest that that application had earlier been foreshadowed. The Assessment Conference was simply adjourned to enable the material forwarded with the letter of 3 May to be given to the Assessor.
The solicitor for the First Defendant immediately made it clear that any direction for the First Defendant to provide such an authority would be opposed for the reasons set out in the First Defendant's solicitor's email. On the face of it, those reasons had some validity and were not simply an indication of a lack of co-operation from the First Defendant. Quite obviously, the material sought to be obtained from Centrelink was very likely to mean that the whole of the Assessment Conference would need to be reopened as the email asserted. That this was likely was emphasised by the submissions made before me that it was partly intended to use the material to go to the First Defendant's credit but was, in any event, to be used to identify the basis upon which the First Defendant sought the carer's allowance in terms of the physical support that the First Defendant would be providing for her mother.
The purpose of the adjournment was not to enable this further application to be made by the Plaintiff. If the Assessor had, in her Reasons of 31 May, refused the application for reasons, perhaps, similar to what I have articulated in this judgment, it is difficult to see how there could have been any proper challenge to the refusal. It was unfortunate that the Assessor failed to mention this matter in her Reasons. However, that failure does not necessarily result in the sort of error that means the decision should be quashed either because there has been a failure of procedural fairness or a constructive failure to exercise her jurisdiction.
It was not reasonable for the Plaintiff to assume in the circumstances that a fresh, unforeshadowed application for which no leave had been given and that was immediately opposed by the First Defendant would be dealt with in the absence of the Plaintiff pursuing that matter further. It would have inevitably resulted in the whole Assessment Conference needing to be re-opened. It would have at least been necessary, when the First Defendant immediately opposed it, for the Plaintiff to have put forward a substantial argument to justify why such an irregular course should be adopted when the Assessment Conference was all but complete except for the documents sent under cover of that letter. This leads to the second matter.
What Gummow and Callinan JJ said in Dranichnikov at [24] was that a failure to respond "to a substantial, clearly articulated argument relying upon established facts was" a failure to accord natural justice. In Re Minister for Immigration and Multicultural Affairs; Ex parte Miah (2001) 206 CLR 57; [2001] HCA 22 Gaudron J said at [81] that a failure to address the substance of a person's claim was a clear case of constructive failure to exercise jurisdiction.
The failure mentioned by Gaudron J did not occur here because the substance of the Plaintiff's claim was addressed in determining whether the First Defendant had residual capacity, and in that regard the requirements under the carer's allowance were taken into account by the Assessor. The Assessor said that she had not identified in the Centrelink material any requirement that care was only physical care.
Support for that finding can be found in the definition of "care" in s 197(1) of the Social Security Act 1991 (Cth) which defines "care" as including attention and supervision. Similarly, in the documents provided with the letter of 3 May 2016 in section A of the first document (Assessment for carer payment) "help" was defined as meaning "any physical assistance, guidance or supervision". The Plaintiff did not contend that the word "physical" was distributive over "guidance" and "supervision". Again, in the document described as the Carer Allowance Medical report there is reference to the Adult Disability Assessment Tool (ADAT). The document says of ADAT: The ADAT measured the amount of help required to undertake activities of daily living such as mobility, communication, hygiene, eating and a range of cognitive and behavioural areas. This may include supervising and prompting the care receiver to undertake these daily activities. Moreover, there was medical evidence, which the Assessor accepted, that the First Defendant had no residual earning capacity.
There can be no error of law in a finding of fact where there is some evidence to support the finding: Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 355-356; R L & D Investments Pty Limited v Bisby [2002] NSWSC 1082 at [13]. I reject the Plaintiff's characterisation of the Assessor's conclusion in paragraph 38 of her reasons as "completely irrational", as "truly irrelevant issues that she did not understand" or as sidestepping the issue. The material identified in [52] above tends to show that the Centrelink material did not contain "any requirement that the care is not only physical care".
The Plaintiff's solicitor had submitted that physical care was necessary, perhaps up to 20 hours a week. Mr Robinson, in answer to a specific question that I asked, eschewed any suggestion that the Assessor misrepresented the submission of Mr Gillis that she recorded in that paragraph. The Assessor responded to that submission by examining the Centrelink material and reaching a different conclusion. When there was evidence to support that view no error of law is demonstrated. Further, the ultimate question was whether the First Defendant had any residual earning capacity. The Assessor determined that she did not, having considered the medical reports and the Centrelink material bearing in mind that the Plaintiff's submission was that if she had qualified for a carer's allowance she must have some residual capacity. There was no failure to deal with the issue or the submissions made by the Plaintiff.
Nor can it be said that what was put forward in the letter of 3 May 2016 was a "substantial, clearly articulated argument relying upon established facts" except insofar as it was a submission on the documents that were forwarded with that letter. At the hearing of the present summons it was submitted that what was contained in the final paragraph of the letter made it clear that the evidence in respect of which the direction was sought was what was being referred to and that, by the Assessor's ignoring the application for a direction, she had failed to respond to a substantial, clearly articulated argument in that regard.
In my opinion, a fair reading of the final paragraph of the letter of 3 May 2016 shows that it is directed to the submissions in the three preceding paragraphs relating to the material enclosed with the letter of 3 May 2016. Nowhere is an argument put, as was put at the present hearing, that the material that Centrelink would provide in response to the direction might be able to be used in relation to the First Defendant's credit or to analyse what she was in effect undertaking to do in terms of providing physical care in exchange for receiving the carer's allowance. If that was what the last paragraph intended to do it did not say that or it did not say it clearly.
There were not yet established facts in the absence of the material from Centrelink, and what was said in that paragraph did not amount to a substantial, clearly articulated argument about anything but, to the extent that a submission was being made, it related to whether the First Defendant had a residual capacity for work. That argument was responded to by the Assessor in paragraphs 35 to 39 of her Reasons.
In those circumstances it is difficult to see how what the Assessor did amounted to a denial of procedural fairness nor a constructive failure to exercise her jurisdiction: Dranichnikov at [24]; Rodger v De Gelder [2015] NSWCA 211 at [93].
If the Plaintiff wished to make out a case in the way that was argued at the hearing of the present summons the material ought to have been available at the Assessment Conference so appropriate cross-examination could have taken place and appropriate submissions made. The material did not form the basis of the adjournment of the Assessment Conference sought but appears to have been an afterthought at the time the letter of 3 May 2016 was written. That is a relevant matter when what is put forward is a denial of procedural fairness to the Plaintiff concerning the material sought in that letter to be obtained from Centrelink. The issue was squarely raised in the statements served by the First Defendant dated 22 September 2015 (see paragraphs 72 to 81) and her husband dated 22 September 2015 (see paragraphs 26 to 30). As the First Defendant's solicitor said in his email of 3 May 2016, the case was an old one and the insurer had had ample time to investigate the issues and, he might have added, by applying for a direction at an earlier Assessment Conference the question of whether such material should have been adduced could have been determined.
The Plaintiff relied heavily on the decision of El-Helou v Smith [2009] NSWSC 741. That was a case where a defendant sought an order that the plaintiff provide the defendant with an authority to Centrelink to enable the Defendant to see what information the plaintiff had provided to Centrelink when she applied for a carer's allowance. Apart, however, from the similar factual situation with the present case it is not easy to see the relevance of that case for the issues to be determined here.
That case did not concern a CARS assessor and whether or not the assessor ought to have made a direction to a plaintiff to provide an authority to Centrelink. It was a dispute between a plaintiff and defendant about whether such an authority had to be provided. Secondly, the application was made to the Court in that case, and in a timely manner before the trial, because the plaintiff would not provide such an authority. In the present case, there was no evidence that the First Defendant had ever been asked for an authority; indeed, Senior Counsel for the Plaintiff said he did not recall seeing such a request. Further, the Assessment Conference was complete subject to the provision of the material supplied under cover of the letter of 3 May 2016. As Mr Robinson explained, the Assessment Conference is the final hearing.
In my opinion, for the purpose of the present case, the only point to be drawn from El-Helou is that the information that Centrelink might have provided in answer to an authority may have been relevant to what the Assessor had to decide but it was far from being determinative. However, that was not the only consideration.
Under clause 16.4 of the Guidelines the Assessor is required to take into account the objects of the Act and the objects of CARS. The second object in s 5(1) of the Act is this: (b) to provide compensation for compensable injuries sustained in motor accidents, and to encourage the early resolution of compensation claims. CARS object 1.14.2 says this: to assess claims and disputes fairly and according to the substantial merits of the application with as little formality and technicality as is practicable and minimising the cost to the parties. That object might be thought to be the CARS equivalent of s 56 of the Civil Procedure Act 2005 (NSW).
Obtaining this material at the late time it was sought would inevitably have caused delay and any use to which it was ultimately put would, as noted earlier, have resulted in a re-opening of the Assessment Conference with a need to cross-examine further the First Defendant and her husband with resultant further submissions on both sides.
In the circumstances of when the Plaintiff's application was made and in the absence of reasons or submissions concerning its purpose, no error of law is demonstrated nor is there a denial of procedural fairness or any constructive failure to exercise jurisdiction.
Two other matters should be mentioned. The first was a submission by the First Defendant that there was no obligation on the Assessor's part to seek out the further material. The First Defendant seems to have misconstrued the Plaintiff's argument. The Plaintiff was not suggesting that the Assessor had some freestanding independent duty to seek out information for herself to decide the disputed issues. The Plaintiff did not suggest that the Assessor had any duty to enquire of Centrelink herself - such an enquiry would, by reason of the legislation, have proved fruitless. The Plaintiff's case was only that the Assessor was bound to respond to the Plaintiff's application for a direction to the First Defendant so that the Plaintiff could pursue the enquiry. For the reasons I have given, no error is demonstrated on the part of the Assessor in that regard.
The second matter concerns the obligation of the First Defendant to repay money to Centrelink and to be subject to a preclusion period consequent on receiving the award of damages. The First Defendant submitted that implicit in any procedural fairness argument is the notion of suffering some practical injustice. The First Defendant submitted that in the present case there was no practical injustice because, in effect, the result would have been the same by reason of the obligation on the part of the First Defendant to repay the money and suffer a preclusion period.
Section 1160 of the Social Security Act 1991 (Cth) provides: 1160(1) [Operation of Part] This Part operates in certain specified circumstances to do one or more of the following: (a) reduce a person's compensation affected payment; (b) render a person's compensation affected payment not payable; (c) require the repayment of some or all of a person's compensation affected payment; because of the receipt of compensation by the person or the person's partner. 1160(2) [Application of Part] This Part applies whether or not there is any connection between the circumstances that give rise to the person's qualification for the compensation affected payment and the circumstances that give rise to the receipt of compensation by the person or the person's partner.
The issue in Redding v Lee (1983) 151 CLR 117 was whether an invalid pension that a plaintiff had received would reduce the amount of the claimant's financial loss and had to be taken into account in the assessment of damages. Gibbs CJ made reference to what had been said by Dixon CJ and Windeyer J in National Insurance Co. of New Zealand Ltd v Espagne (1961) 105 CLR 569; [1961] HCA 15 and went on to say (at 124): [7] Although the remarks made by Dixon C.J. before the statement of principle which I have cited suggest that the statement was intended to be limited to the question whether the pension under the Social Services Act should be taken into account, the principle which he enunciated was broad enough to cover other cases (such as the receipt of the proceeds of an insurance policy or of a private benefaction) in which advantages received by the plaintiff are disregarded. The statement of Windeyer J expressly covers such cases. The test suggested is a general one, and it requires the court to consider the nature of the benefit which the defendant seeks to set off against the damages, and to inquire whether the person or body supplying the benefit intended that the plaintiff should enjoy it in addition to whatever damage he might recover from the defendant. In the case of a benefit provided under statutory authority, the intention of the legislature, in providing the benefit, must be gleaned from the statute itself as a matter of interpretation. If the statute expressly provides (as some statutes relating to workers' compensation have done) that a plaintiff who has recovered damages shall repay the amount of the benefit it will be clear that the receipt of the benefit must be disregarded in the assessment. In many cases, however, the statute under which the benefit is provided will give no assistance of this kind. Then it will be necessary to consider closely the nature of the benefit itself. The conclusion that the benefit is intended for the plaintiff personally and not in reduction of the damages may more readily be drawn when it is seen that the receipt of the benefit is not dependent on the loss of wages or earning capacity (I shall refer again to the distinction) for which the plaintiff claims damages (cf. Parry v. Cleaver (1970) AC, at p 42, per Lord Wilberforce) and is not intended to replace the lost wages or remedy the loss of earning capacity. (at p125)
It is clear in the present case that the legislature has provided for the repayment of the allowance received. On the basis of what was said by Gibbs CJ in Redding v Lee the amount of the carer's allowance in the present case was rightly disregarded by the Assessor although not for the reasons she expressed. Senior Counsel for the Plaintiff said that the repayment of the money is not relevant to the issue in the present case which is simply that the receipt by the First Defendant of the carer's allowance demonstrated that she had residual earning capacity.
It would, nevertheless, have been open to the Assessor to find that the First Defendant had some residual earning capacity but to have awarded damages for economic loss in the same amount because the amount of the carer's allowance was properly to be disregarded by a combination of s 1160 of the Social Security Act and what was said in Redding v Lee. In that way, the Plaintiff suffers no practical injustice in the way the Assessor went about her task.
I do not base the decision I have reached on the argument of an absence of practical injustice but that result tends to support the view I have reached that there was no constructive failure to exercise her jurisdiction nor was procedural fairness denied to the Plaintiff.

Conclusion

Accordingly, I make the following orders: (1) Summons dismissed. (2) The Plaintiff is to pay the First Defendant's costs.

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: 05 May 2017

At a glance

Court

Decision date

Before

Catchwords

Source

Catchwords

Judgment (11 paragraphs)

Parties

Legislation Cited (3)

Cases Cited (19)

Cited By (1)