Consideration
30The assertion that the claims assessor did not have regard to the submissions of the plaintiff before arriving at his decision must be rejected. The submission made in support of the application was that Ms McCosker had made false and misleading statements. The assessor specifically had regard to that.
31NRMA also invited the assessor to take into account the prior submissions. I am not prepared to accept that the assessor determined this application in a vacuum, ignoring the previous applications and the issues posed and submissions made in relation to them. The assessor simply felt it unnecessary to give those submissions any reconsideration. Such an approach was well open for the assessor to adopt.
32The correctness of the assessor's determination of the first and second applications was called into question. It was submitted for this reason it was not open for him to take the view that reconsideration of those applications was unnecessary (T15). I do not believe that the correctness of the previous determinations is open to be considered in these proceedings. But, in any event, the manner in which those determinations were erroneous was never explained beyond a claim that the assessor had "not dealt with the matters that he was required to deal with under the statute" (T3; similarly at T18). If the contention was that the assessor failed to have regard to the submissions made on behalf of NRMA when determining those applications, it must be rejected because it is contrary to the express statement of the assessor on both occasions that the submissions had been considered.
33The assertion that the assessor failed to have regard to each of the matters set out in cl 14.16 must also be rejected. The submission for NRMA in this Court is not to be taken literally. It was conceded that there was no requirement for the assessor to have regard to matters that were self-evidently irrelevant (for example, 14.16.9 - whether some relevant person lived outside the State). The assessor had already had regard to those matters that were suggested to be relevant and to the submissions made in support of the claim for exemption. There was no requirement for the assessor to do what he had already done. The only requirement was for him to consider whether the asserted "fresh evidence" was such as to warrant a reconsideration of a conclusion he had twice before reached, whether the claim was not suitable for assessment under the Act. He decided that it was not. No more was required.
34The false and misleading statements issue went to the accuracy of the medical assessment of Ms McCosker's condition insofar as it was a result of the motor accident. One thing that cannot escape observation is that the Act provides a remedy if a party has a concern about a medical assessment. If additional relevant information becomes available about an injury, a further medical assessment can be carried out: s 62. Here, NRMA would have it that there is such additional relevant information, being that the history provided by Ms McCosker was incorrect or incomplete so that the extent of injury and the level of impairment as a result of the motor accident have been overestimated. However, there is a constraint upon referral for further medical assessment - the additional information must be such as to be capable of having a material effect on the outcome of the previous assessment. NRMA has not sought a further medical assessment.
35Another observation that should be made is that the report of the chiropractor, Mr Schwager, which accompanied the third application, added very little to what NRMA had invited the claims assessor to consider in the second application. The second application included that "the records produced by the chiropractor, Mr Schwager, show there were many visits to him over a period of nearly 15 years, at which visits Mr Schwager recorded low back pain and neck pain". The report of 15 March 2013 recounted in summary form Mr Schwager's treatment of Ms McCosker since she first consulted him in 1988. It included reference to her complaining, amongst other things, of pain to the neck and/or lower back on some occasions.
36The submissions for NRMA, both written and oral, were to the effect that even if no submissions were made about particular matters, an assessor was required nonetheless to consider and discuss in his or her reasons each and every guideline and issue pertaining to a claim. It was submitted that the assessor "has to consider the totality of the evidence and apply the guidelines" (T19). It was submitted that the letter from the chiropractor that accompanied the third application was "a vital piece of information ... [that] goes to the very core of the case". But it was not submitted to the assessor that the effect of the report was that dramatic.
37I do not accept NRMA's contention that there is no responsibility on a party who is seeking exemption to point out and explain with some particularity the basis for it. In this respect I adopt the reasons given by Hoeben J (as his Honour then was) in Zurich Australian Insurance Ltd v MAA [2006] NSWSC 845 at [57]-[63].
38I accept the submission that a decision-maker exercising a statutory power that requires regard to particular facts and matters must not only take those facts and matters into account but must also give them weight as fundamental and focal elements in the decision-making process. Spigelman CJ referred to a line of authority supporting this proposition in Insurance Australia Ltd t/a NRMA Insurance v Motor Accidents Authority of New South Wales at [40]. But there is no authority to which I was referred for a proposition that a decision-maker must repeat this exercise every time the same question is posed.
39The "wrong issue" and "wrong question" submission relates to the assessor having said that "he expressly considered the issue of whether there was anything in the chiropractor's letter that clearly establishes the proposition for which the Insurer contended". It was submitted that the correct question for determination was whether the claim was not suitable for assessment.
40This submission must be rejected. It relies upon a single sentence taken out of context in reasons that are expressed somewhat informally in an email. The assessor was obviously aware that there was an issue between the parties on the false and misleading statements issue. He said that it was a matter that could be "tested by the Insurer at the Assessment Conference". But he also indicated awareness of the correct issue for determination by his statement:
However, that is not a matter presently in issue. The only question for me to consider is whether or not I should recommend to the PCA that this matter be exempted. In making that determination, I have to consider whether or not I am satisfied that this matter is not suitable for assessment.
41This case is factually distinguishable from a case to which counsel for NRMA referred: Allianz Australia Insurance Ltd v Tarabay [2013] NSWSC 141. There the assessor purported to determine for herself an issue of alleged fraud on the part of a claimant. That is not what happened here.
42The submissions in support of the second, or alternative, error asserted (unreasonableness) bordered upon an invitation to this Court to engage in a review of the merits of the claim by NRMA for exemption. That, of course, is impermissible. The correct approach, as suggested in submissions which I accept, was set out in the judgment of Hayne, Kiefel and Bell JJ in Minister for Immigration and Citizenship v Li [2013] HCA 18; (2013) 297 ALR 225 at [64]-[76].
43The question for the assessor was a relatively straightforward one. Was the claim not suitable for assessment under the Act? The question had to be considered in the context of all matters relevant to the claim, particularly the issues between the parties and the appropriateness and efficacy of assessment as opposed to court determination. The exercise of the assessor's discretionary judgment was confined by the subject matter considered in conjunction with the scope and purpose of the Act. The assessor was specifically required by s 6(2) to exercise the discretion in a manner that best promoted the objects of the Act (set out in s 5) and the object of s 92. The discretion was also confined by the requirement to have regard to certain facts and matters as set out in the Guidelines.
44It is clear that there are aspects of the claim by Ms McCosker which complicate its resolution. These were set out at some length in the written outline of the argument for NRMA and developed further in oral submissions. I accept the force of the contention that court determination offers a number of advantages for resolution of these matters. But that does not mean that no reasonable assessor could decide that the matter was not suitable for assessment under the Act. Simply because a claim has some complexity does not mean that exemption follows: Insurance Australia Ltd t/a NRMA Insurance v Motor Accidents Authority of New South Wales at [39].
45In my view the decision of the assessor was not attended by patent error. Nor was it one that could be characterised as lacking an evident and intelligible justification, or is manifestly unreasonable, plainly unjust or any of the other descriptions used in authorities concerned with unreasonableness in a judicial review context.