Insurance Australia Ltd t/as NRMA Insurance v Scott

Background

1. The circumstances of the accident were not in dispute and need not be further explored. Ms Scott lodged her claim for compensation on or about 28 June 2010. As noted above, liability was admitted by the insurer. That gave rise to certain statutory duties on the part of the insurer (see for example ss 83 and 85 of the Act) in relation to the making of payments to or on behalf of Ms Scott.
2. On 22 April 2013, Ms Scott's solicitors wrote to the insurer enclosing what were described as "the claimant's submissions being particulars of the claim pursuant to Section 85". In those submissions, which were forwarded under the name of senior counsel, it was contended that past domestic assistance had been very extensive and that it would be reasonable to allow $24,000 (40 hours per week at $25 per hour for 24 weeks) to the end of October 2010 and then $34,120 (10.5 hours per week for the following 2.5 years). It was further contended that there was a need for significant future domestic assistance at the rate of about 10 hours per week at $40 per hour for the balance of Ms Scott's life expectancy, namely $386,640. It was also submitted that allowance should be made for the past and future care of Ms Scott's daughter. Ms Scott signed a statement dated 16 April 2013 in which she outlined the care that had been provided by her family in the period after the accident and the impact of the accident on her physical and psychological health and her ability to work and care for her daughter. A statement from her sister was also provided.
3. The insurer responded by letter dated 30 April 2013, apparently treating the 22 April 2013 letter as a request for past and future domestic assistance and attendant care and seeking further particulars "of the type of care/list of duties" in respect of both past and future care. (Ms Scott cavils with the insurer's description of this as a "request" for the provision or payment of such services prior to any assessment of damages but ultimately nothing turns on this in my opinion. For completeness, I note that the primary judge was not persuaded that the provisions of ss 58 and 60 of the Act were limited to where a specific request for payment for treatment had been made ([84]).)
4. There was no immediate response to the insurer's request for further particulars. By letter of 15 May 2013 the insurer wrote again, referring to the 22 April 2013 letter and to reports that had apparently by then been served (one dated 1 February 2012 from Dr Conrad and one dated 14 July 2010 from Dr Roberts) outlining a recommendation for past and future domestic assistance and attendant care. The letter set out the insurer's understanding of the "request" that had been made and sought advice if this was "an inaccurate summation of the claim made" by Ms Scott.
5. Relevantly, the insurer's letter stated, among other things, that an agreement as to Ms Scott's entitlement to domestic assistance and attendant care had "still not been reached"; that her "request" for domestic assistance and attendant care "continues to be disputed" by the insurer; that the insurer declined to make any payment as to those matters; and that the insurer relied on an assessment of Ms Scott undertaken by Dr Michael Prior on 15 January 2013 which indicated that Ms Scott did not require personal or domestic assistance as a result of the accident "from the psychiatric perspective".
6. The letter set out the insurer's view as to the issue of domestic assistance and attendant care and then, under the heading "Scope of the Disagreement", stated that "the scope of the disagreement between the parties ranges from the amount claimed by your client, to the amount assessed by Dr Michael Prior for NRMA and every hour in between". The scope of the hours in dispute was set out in a table by reference to three periods: first, the period between the accident and 31 October 2010; second, the period from 1 November 2011 to the "date of assessment"; and, third, the period from the date of assessment through to the balance of Ms Scott's life expectancy.
7. The insurer advised its intention, if the disagreement was unable to be resolved, to lodge an "Application for an Assessment of a Treatment Dispute" with MAS, on the basis that "treatment" was defined under s 42 of the Act as including "the provision of attendant care services" and Pt 3.4 of the Act permitted a treatment disagreement between the insurer and the claimant to be referred to MAS for determination.
8. There does not appear to have been a response to that letter. The insurer then proceeded, by letter of 7 June 2013, to lodge with MAS the foreshadowed application for assessment of the said treatment dispute, stating that the matter was currently being heard before CARS and requesting expedition of the application.
9. The insurer's submissions in support of that application, dated 12 June 2013, were in summary that: the claim for past and future attendant care/domestic assistance was not reasonable and necessary nor related to the effects of the motor vehicle accident; and the attendant care services claimed were excessive given the nature of the motor accident injuries. The insurer's submissions referred to an attempt by the insurer on 30 April 2013 to resolve the claim (presumably this was a reference to its letter of that date - see [29] above , though it is difficult to see where in that letter the insurer had attempted any resolution of the claim - it simply noted its understanding of the "request" and sought further particulars). The submissions also stated that Ms Scott and the insurer had been "unsuccessful in negotiating an entitlement to domestic care/attendant care". Again, there was nothing in the evidence before this Court to suggest that any negotiation had taken place (let alone been attempted) at that stage.
10. Ms Scott's solicitors then lodged with MAS, by letter dated 18 June 2013, a formal reply to the insurer's application for referral of the matter for assessment of a treatment dispute, in which they opposed the insurer's application and submitted that the application should be dismissed. Among other things, the submissions asserted that: on the proper construction of the treatment dispute provisions, the procedure for referral did not apply to non-commercial disputes for non-specific forms of treatment and could not apply to a "general claim for damages for gratuitously provided services or commercially provided services where the claim is part of a general claim for damages"; and that the "procedural hurdles" for such a referral had not been satisfied by the insurer; that the application was an abuse of process. It is relevant to note that the submissions also included the statement that, if the matter were to be referred, Ms Scott would require a lengthy adjournment to enable "him" [sic] to collect and put before the MAS Assessor all the material that "he" [sic] would propose to put before a CARS Assessor addressing the need for care, apparently (having regard to the submissions in this Court) on the basis that an assessment of this material would be relevant to whether there was a genuine dispute as to the need for attendant care services and/or as to the "procedural hurdles" (including that the parties had first made some attempt to resolve the specific treatment dispute in question - as required by cl 8.3 of the MAS Medical Assessment Guidelines).
11. On 2 July 2013, a case manager within MAS notified the insurer's solicitors of its determination that the matter was ready to proceed to assessment. The letter stated that MAS was "satisfied" that a dispute in relation to past and future treatment existed in this claim and, pursuant to s 58(1) of the Act, accepted the application. The letter stated that MAS was also satisfied that the requirements of Ch 8 of the MAS Medical Assessment Guidelines had been met.
12. The letter identified the "treatment disputes" to be assessed as those contained in a series of 12 questions, those going first to the questions whether the physical and/or psychiatric injuries gave rise to a need for the domestic assistance in question in the three periods in question and as to whether that assistance was causally related to the injury sustained in the accident and, second, to whether the range of hours per week of domestic assistance specified for each of the respective periods was reasonable and necessary in relation to the injury (physical and/or psychiatric) sustained in the accident.
13. By letter dated 12 July 2013, MAS notified the insurer's solicitors of arrangements made for the following medical assessors to assess the dispute: Dr Harvey-Sutton and Dr Friend. In September 2013, a further assessor (Ms Wise, an occupational therapist) was appointed by MAS as a medical assessor in respect of the treatment dispute.
14. Each of those assessors in due course issued a certificate under Pt 3.4 of the Act. Pursuant to s 61(2) of the Act, a certificate as to a medical assessment matter is conclusive evidence as to the matters certified in any court proceedings or in any assessment by a claims assessor in respect of the claim concerned.
15. Dr Harvey-Sutton issued her certificate on 27 August 2013 in relation to the cervical, thoracic and lumbar spine injuries sustained by Ms Scott.
16. As to the question whether the treatment provided or to be provided related to the injury caused by the motor accident, Dr Harvey-Sutton certified that Ms Scott's injuries gave rise to a need for domestic assistance (for tasks including housework, home and garden maintenance, hanging washing, vacuuming, sweeping and making beds) from 15 May 2010 to 31 October 2010, being the first period that had been identified by the insurer, in its 15 May letter, as being in dispute (see [30] above), and that that need related to the injuries caused by the motor accident; but also that, for the subsequent two periods, the said need did not relate to the injuries caused by the motor accident.
17. As to whether the treatment provided or to be provided was reasonable and necessary in the circumstances, Dr Harvey-Sutton concluded in respect of the two later periods that the hours per week of domestic assistance arising from the said injuries caused by the motor vehicle accident (0-40 hours per week from 1 November 2010 to the date of the assessment and 0-10.5 hours per week from the date of that assessment and ongoing) were not reasonable and necessary in the circumstances.
18. Dr Friend issued his certificate on 2 September 2013 in relation to the chronic major depression (i.e., the psychiatric injury) suffered by Ms Scott.
19. As to the question whether the treatment provided or to be provided related to the injury caused by the motor accident, Dr Friend certified that Ms Scott's chronic major depression gave rise to a need for domestic assistance (for tasks including housework, home and garden maintenance, hanging washing, vacuuming, sweeping and making beds) from 15 May 2010 to 31 October 2010 and that need related to the injuries caused by the motor accident but, similarly, certified that for the subsequent periods the said need did not relate to the injuries caused by the motor accident.
20. As to whether the treatment provided or to be provided was reasonable and necessary in the circumstances, Dr Friend similarly concluded that the hours per week of domestic assistance arising from the psychological injury caused by the motor vehicle accident for the two later periods (0-10.5 hours per week from 1 November 2010 to the date of the assessment and 0-10 hours per week from the date of that assessment and ongoing) were not reasonable and necessary in the circumstances.
21. Ms Wise certified on 21 November 2013 that 0 hours per week of domestic assistance from 15 May 2010 to 31 October 2010 was reasonable and necessary and (correspondingly) that 1-40 hours of domestic assistance from 15 May 2010 to 31 October 2010 was not reasonable and necessary.
22. By her summons filed 20 November 2014, Ms Scott sought judicial review of those decisions (as well as the decision of the second respondent to refer the matter for assessment to the medical assessors in the first instance).

Relevant legislative provisions

1. Section 60 of the Act provides that: 60 Medical assessment procedures (1) A medical dispute may be referred to the Authority for assessment under this Part by either party to the dispute or by a court or claims assessor. (2) The Authority is to arrange for the dispute to be referred to one or more medical assessors. (my emphasis)
2. Section 57 of the Act defines "medical dispute" as a disagreement or issue to which Pt 3.4 of the Act applies.
3. Section 58 of the Act, contained in that part of the Act, provides that: 58 Application (1) This Part applies to a disagreement between a claimant and an insurer about any of the following matters (referred to in this Part as medical assessment matters): (a) whether the treatment provided or to be provided to the injured person was or is reasonable and necessary in the circumstances, (b) whether any such treatment relates to the injury caused by the motor accident, (c) (Repealed) (d) whether the degree of permanent impairment of the injured person as a result of the injury caused by the motor accident is greater than 10%. (e) (Repealed) (2) This Part also applies to any issue arising about such a matter in proceedings before a court or in connection with the assessment of a claim by a claims assessor.
4. Section 42 provides that, in Ch 3 of the Act, "treatment" means: (a) medical treatment, or (b) dental treatment, or (c) the provision of rehabilitation services, or (d) the provision of attendant care services, or (e) the provision, replacement or repair of artificial members, eyes or teeth, crutches or other aids or spectacle glasses, whether or not at a hospital.
5. The term "attendant care services" is defined in s 3 of the Act as meaning: ... services that aim to provide assistance to people with everyday tasks, and includes (for example) personal assistance, nursing, home maintenance and domestic services.
6. Also relevant to note in this context is s 141B of the Act, which provides that: 141B Maximum amount of damages for provision of certain attendant care services (cf s 72 MAA) (1) Compensation, included in an award of damages, for the value of attendant care services: (a) which have been or are to be provided by another person to the person in whose favour the award is made, and (b) for which the person in whose favour the award is made has not paid and is not liable to pay, must not exceed the amount determined in accordance with this section. (2) No compensation is to be awarded if the services would have been provided to the person even if the person had not been injured by the motor accident. …

Primary judgment

1. Having summarised (at [32]-[34]) the arguments put by the respective parties as to the construction of s 58 of the Act, the primary judge characterised the relevant question ([40]) as being whether a dispute about Griffiths v Kerkemeyer [1977] HCA 45; (1977) 139 CLR 161 damages (i.e., damages to compensate for the "need" for voluntary domestic assistance) was a disagreement about treatment of the types referred to in subss 58(1)(a) and (b) of the Act.
2. The primary judge accepted the broad basis on which Ms Scott had contended that a claim for an allowance for Griffiths v Kerkemeyer damages was not "treatment" within the meaning of s 58 of the Act, namely that in s 58 the word "treatment", understood in its statutory context, was restricted to professional services for which the claimant will or may incur a fee (or financial loss); i.e., services that would traditionally have been the subject of special rather than general damages at common law ([55]). His Honour did not regard the loss of Ms Scott's capacity to render to herself the services she would have otherwise performed for herself in her uninjured state as falling within the ordinary or natural meaning of the word "treatment" ([48]).
3. The primary judge considered that an important part of the historical context of the Act was the continued operation of the enacted law and the common law relating to the assessment of damages, referring to s 5(2)(a) in that regard ([40]). His Honour emphasised that s 141B provides the measure of damages payable for a loss which is not financial in nature but rather is represented by the accident-created need ([48]).
4. His Honour considered that the emphasis in s 58(1)(a) was upon the assessment of the appropriateness of the provision of the particular services, not on any medical assessment of Ms Scott's loss; and, similarly, that the question under s 58(1)(b), when amplified by reference to the statutory definition of "treatment", was upon whether the services related to the injury, not whether the loss of capacity related to the injury ([50]-[51]).
5. His Honour considered it significant that s 141B(2) prescribed a different nexus between injury and compensation from that in either s 58(1)(a) or (b); i.e., that the test in s 141B(2) is not one dependent on the treatment being reasonable and necessary in the circumstances and not one dependent on a causal relationship between the treatment and the injury caused by the motor accident ([53]).

Appeal

1. By notice of appeal filed 29 September 2015, the insurer raises the following four grounds of appeal: 1. In Scott v Insurance Australia Limited [2015] NSWSC 1249, his Honour dealt with the interpretation of section 58 of the Motor Accidents Compensation Act 1999 (NSW) ("the Act"). His Honour erred (reasons at [49], [52] and [55]) in wrongly holding that the definition of the expression "attendant care services" in section 3 of the Act meant something different where it also appears in section 42 of the Act. 2. His Honour erred in finding (at [55]) that section 58(1)(a) of the Act, particularly the words "whether the treatment provided or to be provided", only applied to treatment that was paid for or to be paid for (or "professionally provided") when in fact the words in that section should have been given their ordinary and natural meaning, in that services can be provided without paying for them. 3. His Honour erred in finding (reasons at [65]) that the applicant's construction of the expression "attendant care services" in the Act was unreasonable and lead to the legislative purpose of the Act being defeated. 4. His Honour erred in finding (reasons at [87]) that there was no genuine dispute between the parties concerning section 141B of the Act (gratuitous care) that could found an application for a medical assessment pursuant to section 58 of the Act.
2. In her submissions in this Court, Ms Scott sought leave to rely upon a notice of contention, seeking to uphold the primary judge's decision on the following ground not relied upon by the primary judge: that the number of hours of attendant care services is not a "medical assessment" matter and not a legally permissible subject for referral for assessment under s 58 of the Act.

Grounds 1-3

1. The first three grounds of appeal relate in essence to the construction of s 58 of the Act and may be dealt with together.

Submissions

1. The insurer contends that the definition of the term "attendant care services" in s 3 must be applied wherever that term appears in the Act and hence argues that the word "treatment" in s 58, having regard to the definition of "treatment" in s 42 as including the provision of attendant care services, must be construed as including the provision of attendant care services.
2. The insurer emphasises that the definition of "attendant care services" in s 3 is not in terms limited to services that are gratuitous or otherwise, nor is the word "treatment" limited to treatment that is professionally provided. The insurer notes that the term "attendant care services" is used in s 141B in the sense of the provision of gratuitous care whereas elsewhere (s 83) the same term is used in relation to an obligation of the insurer to pay in certain circumstances. It argues that the ordinary and natural meaning of "attendant care services" is not one confined to the provision of professional services or services for which payment is required.
3. It is submitted by the insurer that the primary judge's approach to the construction of s 58 in this regard is inconsistent with Daly v Thiering [2013] HCA 45; (2013) 249 CLR 381. There, what was in issue was the construction of s 130 of the Act and s 6 of the Motor Accidents (Lifetime Care and Support) Act 2006 (NSW) (the Lifetime Care and Support Act), as then appearing in the relevant legislation.
4. Section 130 of the Act, as it then was, referred in terms to "treatment and care needs [within the meaning of the Lifetime Care and Support Act] … that are provided for or are to be provided for …". Section 6 of the Lifetime Care and Support Act included, in the definition of "treatment and care needs", among other things, attendant care services. The High Court in Daly rejected an argument that the words "are provided for or are to be provided for" in s 130 were to be read as meaning "are paid for or are to be paid for" and concluded (at [36]) that the words "provided for" should be given their ordinary and natural meaning. The High Court considered it readily apparent that one might provide for services without paying for them.
5. In the present case, the insurer argues that the words "provided for or to be provided" in s 58, though under a different scheme from that considered in Daly, are relevantly indistinguishable from the same words considered in Daly and hence that the primary judge erred in finding (at [65]) that the construction for which the insurer contended was unreasonable and led to the legislative purpose of the Act being defeated.

Determination

1. Essentially, for the reasons advanced by the insurer, I consider that the primary judge erred in construing the word "treatment" in s 58 of the Act as confined to treatment that was to be professionally provided (and paid for). The definition of "attendant care services" in s 3 of the Act is not so confined and I do not read the itemisation of the particular types of treatment included in the definition of "treatment" in s 42 as drawing any distinction between paid/gratuitous or professional/voluntary services.
2. The reasoning in Daly points to the contrary conclusion namely that a disagreement (of the kind falling within s 58(1)(a) or (b) of the Act) in relation to the provision of voluntary services of the kind compensable at common law in accordance with Griffiths v Kerkemeyer is within the definition of "medical dispute" and capable of referral for assessment under the procedure established by Ch 3 of the Act.
3. I do not find the house painting example to be of any great assistance. An appropriately qualified medical assessor would surely be in a position to assess whether the nature of injuries suffered as a result of a car accident would disable the injured person from attending to tasks of that kind and the extent of that disability. Hence such an assessor would be qualified to express an opinion as to whether claimed attendant care services were reasonable and necessary in the circumstances and whether they were causally related to the injury. The fact, if it be the case, that the need for some attendant care services (such as house painting) might not be as immediate as those for which, in accordance with the objects of the Act, it is expected there will be an early assessment does not mean that the legislative purpose of the scheme will be defeated if such matters may be referred to MAS for assessment prior to any trial.
4. I consider therefore that grounds 1-3 are made good.

Notice of Contention

1. Before addressing ground 4, it is convenient to deal with the sole issue now sought to be raised by Ms Scott's notice of contention, namely that a "medical assessment matter" within the meaning of s 58 of the Act does not include a determination of the number of hours required for the provision of attendant care services within the meaning of ss 3 and 42 of the Act, as distinct from the causal relationship between the attendant care services to the injury and the reasonable necessity for such attendant care services (see notice of contention ground 2).
2. The argument raised by Ms Scott is that ss 3, 42 and 58 only make "medical assessment matters" capable of referral (i.e., whether treatment provided or to be provided was reasonable or necessary and whether it relates to the injury). Ms Scott argues that the "value" of the need for the attendant care services, for the purposes of the assessment of damages, is something to be determined in accordance with the CARS assessment process.
3. In particular Ms Scott points out that, pursuant to s 141B of the Act, compensation for attendant care services cannot be awarded if the service would have been provided to the injured person in any event and that the services need to be provided for at least 6 hours per week and for at least 6 months. It is submitted that a medical assessor would not be in a position to know that services would have been provided to a person even if that person had not been injured and would not know how long those services took to be provided before the person was injured.
4. The insurer contends that there is no basis for Ms Scott's contention that a dispute as to the number of hours of attendant care services required was not a medical assessment matter under the Act. It is submitted that a determination by the medical assessor of the numbers of hours required for attendant care services will often, though not necessarily always, be a necessary part of the determination of a dispute between the parties as to those services for the purposes of ss 58(1)(a) and (b) of the Act. The insurer further submits that medical assessors are independent expert medical practitioners and are well placed to determine the number of hours required for attendant care services in a dispute between the parties on such an issue.

Determination

1. At a practical level, the certification by the respective medical assessors as to the number of hours of attendant care services that were, or would be, reasonable and necessary as a result of the injuries caused by Ms Scott's accident seems to have been a function of the way in which the medical dispute was identified by MAS. What the assessors were asked to determine was whether the range of hours that had been included in the particulars to Ms Scott's claim for the respective periods was reasonable and necessary. However, and without intending any criticism of the medical assessors, the somewhat formulaic determination of the identified disputes in this regard masks the fact that what each was in effect certifying was that, from 1 November 2010 onwards, no domestic assistance was reasonable and necessary in the circumstances.
2. Understood in that way, I do not accept ground 2 of Ms Scott's proposed notice of contention. The certification was in substance as to whether for particular periods, the claimed attendant care services were both reasonable and necessary, and causally related to the injuries caused by the accident. It is not necessary, therefore, to consider whether, had the disagreement between the parties been as to whether, say, 5 hours per week (as opposed to 10.5 hours per week) of domestic assistance was reasonable and necessary having regard to the injuries caused by the car accident, this would be a medical dispute capable of referral to MAS for determination.

Ground 4

1. This ground of appeal challenges the primary judge's finding (at [87]) that there was no genuine dispute between the parties concerning s 141B of the Act.
2. The insurer submits that it had plainly put in issue both the claimed entitlement to damages for gratuitous care and the amount of that entitlement; and hence that there was a disagreement within the meaning of s 58(1) of the Act.
3. For Ms Scott it is argued that not only was there no "dispute" for the purposes of establishing the jurisdictional fact she argues was necessary for the proper officer to refer the matter for assessment, but also there was no genuine dispute at all. She emphasises that all that had occurred in this matter at the relevant time was the service of "particulars" of her claim and that there was no request for "treatment"; only a request for compensation.
4. At one level, the debate as to whether there was in fact a dispute as to the claim for attendant care services bordered on the farcical.
5. Ms Scott argues that there has never been a "request" that the insurer provide (attendant) care hence no treatment dispute (T 5.35). The fact that a "request" for payment had not been made was not to the point. Ms Scott claimed compensation for such services. The insurer did not accept (or agree with) the claim for attendant care services as particularised. If there were not a dispute as to the claimed attendant care services (be it some or any part of that claim) it would be difficult to see how this matter could properly have ended up in this Court, having regard to the mandatory provisions in ss 56-60 of the Civil Procedure Act 2005 (NSW).
6. The distinction sought to be drawn by Ms Scott is between a claim for Griffiths v Kerkemeyer damages and a claim that the services be provided (T 7.46). In essence, she says the medical dispute provisions were not intended to cover the quantification of damages rather than the provision of the medical treatment prior to the assessment (T 7.50 - 8.2).
7. Ms Scott, however, submits that the insurer's own medical practitioners did not support the asserted s 58 matters, that there was no evidence to support a conclusion that there was no such need (see T 17.3) and that, at best, there was an argument that on psychiatric grounds there was not a need for attendant care services (but no dispute that on physical grounds there was such a need). It is thus submitted that there was no disagreement about whether treatment to be provided was reasonable and necessary or related to the motor vehicle accident and hence there was nothing to refer for assessment. (Ms Scott accepts that there may have been a disagreement about the number of hours for which attendant care services were required; but says that was not a medical assessment matter, and thus was not a matter about which any dispute could be referred for assessment under s 58.)

Determination

1. As articulated by the High Court in Gedeon v Commissioner of the New South Wales Crime Commission [2008] HCA 43; (2008) 236 CLR 120 at [43], the expression "jurisdictional fact" is used to identify a criterion the satisfaction of which enlivens the exercise of the statutory power or discretion in question, such that if the criterion be not satisfied then the decision purportedly made in exercise of the power or discretion will have been made without the necessary statutory authority required of the decision maker.
2. In QBE Insurance (Australia) Pty Ltd v Miller [2013] NSWCA 442 at [17], Basten JA identified two species of jurisdictional fact. It is the first of those species that Ms Scott argues is here to be found on the proper construction of s 60 of the Act: namely, the determination of the existence of an objective fact in the strict sense. If Ms Scott's contention is right, then it is for this Court to determine for itself, on the evidence before it, whether the precondition is satisfied (City of Enfield v Development Assessment Commission [2000] HCA 5; (2000) 199 CLR 135 at [48] per Gleeson CJ, Gummow, Kirby and Hayne JJ); i.e., that the fact existed at the relevant time (QBE at [17]; Timbarra Protection Coalition Inc v Ross Mining NL [1999] NSWCA 8; (1999) 46 NSWLR 55 at 64 per Spigelman CJ; D'Amore v Independent Commission Against Corruption [2013] NSWCA 187; (2013) 303 ALR 242 at [241] per Basten JA). Therefore, it would not be sufficient to determine that, on the material before the proper officer, the conclusion that there was a medical dispute was reasonably open.
3. It has been said that the principles applicable to the determination of whether something amounts to a jurisdictional fact are "settled, but necessarily imprecise" (Leeming JA writing extra-judicially, Authority to Decide: The Law of Jurisdiction in Australia, 1st ed, 2012, The Federation Press, at 65). Whether a fact is jurisdictional is purely a question of statutory interpretation (Timbarra at [37]) involving the weighing up of the text, structure and purpose of the legislation (Woolworths Ltd v Pallas Newco Pty Ltd [2004] NSWCA 422; (2004) 61 NSWLR 707 at [61]; Australian Heritage Commission v Mt Isa Mines Ltd (1995) 60 FCR 456 at 466B-468B). What is required (as explained by Spigelman CJ in Pallas Newco at [6]) is a careful analysis of the statute conferring the jurisdiction. Dixon J (as his Honour then was) said in Parisienne Basket Shoes Pty Ltd v Whyte [1938] HCA 7; (1938) 59 CLR 369 at 391, with respect to a matter going to the jurisdiction of a magistrate (referred to with approval in this Court in Trives v Hornsby Shire Council [2015] NSWCA 158 at [12] per Basten JA): It cannot be denied that, if the legislature see fit to do it, any event or fact or circumstance whatever may be made a condition upon the occurrence or existence of which the jurisdiction of a court shall depend. But, if the legislature does make the jurisdiction of a court contingent upon the actual existence of a state of facts, as distinguished from the court's opinion or determination that the facts do exist, then the validity of the proceedings and orders must always remain an outstanding question until some other court or tribunal, possessing power to determine that question, decides that the requisite state of facts in truth existed and the proceedings of the court were valid. Conceding the abstract possibility of the legislature adopting such a course, nevertheless it produces so inconvenient a result that no enactment dealing with proceedings in any of the ordinary courts of justice should receive such an interpretation unless the intention is clearly expressed.

Conclusion

1. For the reasons above, I am of the view that the appeal should be allowed and the relief sought by the insurer should be granted. In passing, I note that the basis for the order made by the primary judge prohibiting MAS from taking any further steps in the matter was not clear. In particular, it would appear to have precluded MAS from dealing with any further application that might have been made in the matter. I would have been inclined to set that order aside even had the appeal not been allowed.
2. As it is, I propose the following orders: 1. Appeal allowed with costs. 2. Set aside the judgment and orders made by Campbell J on 1 September 2015 and, in lieu thereof, dismiss with costs the plaintiff's summons seeking judicial review. 3. Grant the first respondent a certificate under the Suitors' Fund Act 1951 (NSW).
3. GLEESON JA: I agree with Ward JA. I also agree with the additional observations of Basten JA with one additional point of emphasis in relation to the matter referred to by his Honour at [15]. In my view, a medical assessment dispute as referred to in s 58 of the Motor Accidents Compensation Act 1999 (NSW) does not extend to a claim covered by s 15B(2) of the Civil Liability Act 2002 (NSW) for loss of the claimant's capacity "to provide gratuitous domestic services to the claimant's dependants". Section 15B applies to motor accidents: s 3B(2)(a1) and White v Benjamin [2015] NSWCA 75 at [3], [6] (Beazley ACJ) and [69] (Basten JA, Meagher JA agreeing). So much is made clear by the description of medical assessment matters in s 58(1)(a) as involving "the treatment provided or to be provided to the injured person …" [emphasis added], where "treatment" is relevantly defined to include "the provision of attendant care services": s 42.

Endnotes

1. MAC Act, s 60(1).
2. MAC Act, s 60(2).
3. MAC Act, s 57, medical dispute.
4. The terms of the section are set out below at [51].
5. MAC Act, s 58(1)(a).
6. MAC Act, s 58(1)(b).
7. MAC Act, s 42, treatment.
8. MAC Act, s 3, attendant care services.
9. MAC Act, s 122(3).

Amendments 11 April 2017 - Coverhseet and par 26 - CDJ v VAJ - deleted (No 2) and amended '[1998] HCA 76' to '[1998] HCA 67' Par 36 - deletion of the word 'whether' in the 18th line. 21 April 2017 - Par 2 - the word 'their' deleted and replaced with 'that' in the 2nd line. Par 5 - the word 'more' added between the words 'or' and 'medical' Par 7 - the word 'not' deleted in the 6th line Par 9 - footnote 4 - [49] amended to [51] 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: 21 April 2017