Jubb v Insurance Australia Limited t/as NRMA Insurance

Judgment

1. HER HONOUR: This is an application for judicial review of two decisions, one of a Proper Officer of the Medical Assessment Service ("MAS") and the other of a MAS Medical Assessor.
2. By further amended summon filed 7 September 2015, the plaintiff seeks, firstly, a declaration that the decision of the third defendant, a Proper Officer of the Medical Assessment Service made on 28 November 2014, pursuant to s 62 of the Motor Accidents Compensation Act 1999 (NSW) ("the Act") is invalid; secondly an order setting aside the first decision and remitting the matter to the second defendant for decision according to law; thirdly, a declaration that the decision of the fourth defendant, a MAS Medical Assessor, made on 12 February 2015 to issue a certificate under Part 3.4 of the Act is invalid; fourthly, an order setting aside the second decision; and fifthly, an order in the nature of prohibition, or alternatively, an injunction preventing the second, third and fourth defendants or any of the second defendant's officers, servants or agents from acting on or taking any further step in reliance on the first or second decisions.
3. The plaintiff is David Jubb. The first defendant is Insurance Australia Limited t/as NRMA Insurance ("NRMA"). The second defendant is the Motor Accidents Authority of New South Wales ("MAA"). The third defendant is Jane Probert in her capacity as Proper Officer, Medical Assessment Service of the Motor Accidents Authority of New South Wales ("the Proper Officer"). The fourth defendant is Angelo Virgona in his capacity as a Medical Assessor from the Medical Assessment Service of the MAA ("MAS Assessor Virgona"). The second, third and fourth defendants have filed submitting appearances
4. The plaintiff relied upon the affidavit of his solicitor Michael Francis Coorey filed 8 May 2015.

Background facts

1. On 21 July 2011, while travelling with his family, the plaintiff was involved in a motor vehicle accident. NRMA admitted liability for the accident by notice given under s 81 of the Act.
2. The plaintiff was assessed separately by MAS Assessor John Baker for psychological injury and MAS Assessor David Johnson for physical injury. On 15 August 2013, MAS Assessor Johnson assessed the plaintiff's degree of permanent impairment and determined that he had whole person impairment ("WPI") of 5 percent arising from his physical injury (TB151). It should be noted that it is only the psychological injury that is the subject of this judicial review.

The first medical assessment - psychological injury

1. On 9 August 2013, the plaintiff was medically assessed pursuant to the procedures established under Part 3.4 of the Act by MAS Assessor Baker. MAS Assessor Baker recorded that prior to the motor accident, the plaintiff enjoyed the company of his partner and two children; and also had no difficulties with his concentration at work and was able to work long hours (about 45 hours per week) in the role of a Quality Management Systems Co-ordinator at Acer Computers without difficulty.
2. MAS Assessor Baker recorded that after the motor accident, the psychiatric symptoms that the plaintiff said he suffered were, inter alia, a depressed mood, loss of interest in playing with his children and recurrent depressive and intrusive thoughts. The plaintiff had recurrent difficulties attending work with multiple sick days prior to him no longer being able to perform the complex tasks of his role, and no longer being employed by Acer Computers. He had continued conflict with the mother of his children and they are now permanently separated.
3. MAS Assessor Baker found that the plaintiff was suffering from psychiatric injuries and assessed him as having 13 percent WPI.
4. On 17 July 2014, the plaintiff applied for general assessment by the Claims Assessment and Resolution Service ("CARS").
5. On 27 August 2014, NRMA lodged an application for a further assessment of WPI pursuant to s 62(1)(a) of the Act. As a result, the CARS assessment was deferred.
6. On 30 September 2014, the plaintiff replied to NRMA'S application for further assessment.
7. On 28 November 2014, the Proper Officer acceded to NRMA'S application and referred the matter for further assessment.
8. On 19 December 2014, the plaintiff commenced proceedings in this Court, seeking an order quashing the Proper Officer's decision to refer the matter for further assessment.
9. After the filing of that summons, on 22 January 2015 MAS Assessor Virgona undertook a further assessment of the plaintiff. On 12 February 2015, MAS Assessor Virgona issued a certificate declaring that the plaintiff's WPI was less than 10 percent. The plaintiff now seeks to quash this decision also.

Judicial review

1. The plaintiff relies on s 69 of the Supreme Court Act 1970 (NSW) which provides that this Court has jurisdiction to grant any relief or remedy in the nature of a writ of certiorari.
2. The grounds of review are that both the decision of the Proper Officer and the decision of MAS Assessor Virgona contain both jurisdictional errors/and or errors of law on the face of the record.

The Proper Officer's decision

1. The grounds of review of the Proper Officer's decision are that the Proper Officer: 1. Wrongly construed s 62 of the Act in determining that the clinical notes of Ms Ozturk were additional relevant information because they expressed opinions different to those of MAS Assessor Baker. 2. Wrongly construed s 62 of the Act in determining that the clinical notes of Ms Ozturk were additional relevant information when they concerned an issue already addressed by MAS Assessor Baker, namely that the plaintiff's relationship with his children and certain ideations; and 3. Wrongly construed s 62 of the Act in determining that the statement of David Rushworth was additional relevant information when it concerned an issue already addressed by MAS Assessor Baker, namely the plaintiff's work performance.

The application for further assessment

1. When making her decision about NRMA's application for further assessment, the Proper Officer was provided with additional material filed by NRMA; as well as evidence and submissions in reply from the plaintiff.
2. NRMA'S application for further assessment relied on the following material: two reports from G4S including surveillance film, the report of Dr Mangipudi dated 28 September 2012 and the statement of David Rushworth (the supervisor of the plaintiff in his employment with Acer) dated 27 March 2014. The clinical notes of psychologist Derya Ozturk, the plaintiff's treating psychologist, were also relied on by NRMA but were not provided until 11 November 2014.
3. The plaintiff's evidence in reply comprised a statement from the plaintiff addressing issues raised in the statement of Mr Rushworth and a copy of the plaintiff's resume.
4. On 28 November 2014, the Proper Officer in her written reasons stated: "I have considered the application for further assessment, the reply and all supporting documentation submitted in this matter including the further submissions provided by the parties. The application is based on additional relevant information about the Injury. I am satisfied that the additional relevant information about the Injury is such as to be capable of having a material effect on the outcome of the previous assessment as required by section 62(1A) of the Motor Accidents Compensation Act 1999. The claimant was previously assessed by Assessor Baker on 19 July 2013 in relation to the claimant's psychological injury, in Assessor Baker's certificate dated 9 August 2014, he diagnosed the claimant with an adjustment disorder with mixed anxiety and depressed mood, DSM IV TR Code No. 309.28. He assessed whole person impairment at 13%. I have reviewed the following documents in support of the application 1. G4S Report dated 30 May 2013 and surveillance film 2. G4S Report dated 6 June 2013 and surveillance film 3. Report of Dr Anup Mangipudi dated 28 September 2012 4. Statement of David Rushworth dated 27 March 2014 5. Resume of David Jubb 6. Clinical notes from Dr Derya Ozturk In Singh v Motor Accidents of NSW (No 2) [2010] NSWSC 1443 ('Singh'), Rothman J defined additional relevant information as information that Is additional to the party relying on it as a ground for further assessment It is clear from the further submissions provided by the parties that the clinical records of Dr Derya Ozturk became available to the applicant following the assessment with Assessor Baker. The records were forwarded to the Insurer by the claimant's solicitor by way of letter dated 31 July 2014, which was subsequent to the assessment with Assessor Baker. It is therefore additional to the party relying upon them. Singh also defined additional relevant information as containing an opinion of a different kind to that previously before the Assessor. I note the clinical records from Dr Ozturk, indicate that he was the claimant's treating psychologist since April 2013. Dr Ozturk recorded on 16 June 2013 that 'things were going well and that the claimant seemed 'cheerful and looked forward to seeing his children'. On his last consultation on 29 June 2013, the claimant reported that he was finding therapy useful and that there was no wish to self harm. The certificate of Assessor Baker differs as he previously recorded that he struggled to enjoy his children playing since the accident and that he had suicidal fleeting ideation with no plan but prevents It by thinking of his children. I am satisfied that the clinical notes of Dr Ozturk constitute as additional relevant Information as they contain opinions of a different kind to that of Assessor Baker and this is sufficient to meet the first test at section 62(1A). The statement made by David Rushworth dated 27 March 2014 may also be considered as additional relevant information as it post dates the original assessment. Although the statement Is not a medical opinion, I note the submissions provided in relation to the statement indicate that there are inconsistencies in relation to claimant's reported reasons why his employment became redundant and this may change the category for concentration, persistence and pace. Whether this is accepted at assessment or whether it is indicative of inconsistencies is a matter for an Assessor. The reports prepared by G4S, the surveillance films and the report of Dr Mangipudi appear to have In the possession of the applicant at the time of the original assessment, I have therefore not considered them in making my determination, however given that the clinical notes of Dr Ozturk and the statement made by Mr Rushworth are accepted as additional relevant information, the application and reply in Its entirety will be forwarded to the Assessor, what weight, if any is given to these reports will be considered as part of the assessment. Materiality The claimant is currently assessed at 13% whole person impairment In relation to his psychological condition. I am satisfied that if the clinical notes of Dr Ozturk and the statement of Mr Rushworth were accepted and the categories for 'social & recreational activity' and 'concentration, persistence and pace' were reduced to a lower category, then the claimant may be assessed under the threshold. I am therefore satisfied that the additional relevant Information about the injuries is such as to be capable of having a material effect on the outcome of the previous assessment, satisfying the second test at section 62(1A) of the Act. In accordance with clause 14.12 of the Medical Assessment Guidelines the further assessment will involve consideration of all aspects of the original Assessor's assessment afresh and will include all injuries assessed by the original Assessor and any additional injuries listed in the application or reply. Injuries considered by other Assessor's will not be reassessed if there is no additional relevant information about them or if deterioration is not addressed in the application. The following injuries will be assessed in the further assessment: 1. Psychological - anxiety, adjustment disorder, depression stress reaction, adjustment disorder with mixed anxiety and depressed mood, DSM IV TR Code No 309.28."

The legislation

1. The Act establishes a scheme of compulsory third party insurance and the payment of compensation relating, inter alia, to the injury to persons as a consequence of motor accidents. Its objects include the provision of compensation for compensable injuries sustained in motor vehicle accidents and the encouragement of early resolution of compensation claims: s 5. Chapter 3 relates to motor accident injuries caused by motor accidents occurring after the commencement of the Act: s 43.
2. Section 44 provides that the MAA may issue medical guidelines with respect to the assessment of the degree of WPI: s 44(1)(c); and the procedure for the assessment and review of assessments under Pt 3.4: s 44(1)(d). Section 59 requires the MAA to appoint medical assessors for the purposes of Pt 3. Pursuant to s 60, where medical disputes are referred to the MAA, it is to arrange for the dispute to be referred to one or more medical assessors. Section 61 provides for the status of medical assessments and s 62 provides for the referral of matters for further medical assessment. They relevantly read: "61 Status of medical assessments (1) The medical assessor ... to whom a medical dispute is referred is ... to give a certificate as to the matters referred for assessment. (2) Any such 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. … 62 Referral of matter for further medical assessment (1) A matter referred for assessment under this Part may be referred again on one or more further occasions in accordance with this Part: (a) by any party to the medical dispute, but only on the grounds of the deterioration of the injury or additional relevant information about the injury, or (b) … (1A) A matter may not be referred again for assessment by a party to the medical dispute on the grounds … additional relevant information about the injury unless … additional information is such as to be capable of having a material effect on the outcome of the previous assessment. (1B) … (2) A certificate as to a matter referred again for assessment prevails over any previous certificate as to the matter to the extent of any inconsistency."
3. Also relevant are ss 131 and 133 relating to damages. Section 131 provides that no damages may be awarded for non-economic loss unless the degree of WPI as a result of the injury caused by the motor accident is greater than 10 percent. Section 133 provides that the assessment of the degree of WPI is to be expressed as a percentage, in accordance with the processes specified in Part 5. The relevance of this for present purposes is that should MAS Assessor Baker's assessment of 13 percent WPI be maintained, the plaintiff will be entitled to damages for non-economic loss. On MAS Assessor Virgona's assessment of WPI, the plaintiff is not entitled to damages for non-economic loss.

Interrelationship between s 62 and Chapter 14

1. There are two distinct steps involved in a matter being referred for further medical assessment under s 62 of the Act. Both steps involve consideration of Chapter 14 of the Guidelines.
2. The first step is that a referral must be made "only on the grounds of ... additional relevant information": s 62(1)(a). Clause 14.5 of the Guidelines specifies that when making a determination under s 62(1)(a), the Proper Officer "shall have regard to" the application and any reply; any other applications and replies and/or certificates issued under s 61 on the medical dispute; the objects of the Act and the objects of the MAS.
3. The second step is that if there is "additional relevant information about the injury" then referral for further medical assessment is precluded "unless the deterioration or additional information is such as to be capable of having a material effect on the outcome of the previous assessment": s 62(1A). Clause 14.6 of the Guidelines defines the word "material" in s 62(1A) as further additional information capable of altering the outcome of a dispute about, relevantly, WPI from not greater than 10 percent to greater than 10 percent, or vice versa. Under clause 14.7, if the Proper Officer is not satisfied of the requirement in s 62(1A) of the Act, then they may dismiss the application.

Consideration of Henderson v QBE Insurance

1. In Henderson, the central issue raised was whether the two steps set out in s 62 constituted a jurisdictional fact which needed to be established, on an objective basis, before a referral could be made for further medical assessment. Mr Henderson submitted that both aspects were jurisdictional facts that must objectively be found to exist. QBE submitted that each step involved an evaluative task, which was amenable to judicial review for error of law but that they did not constitute jurisdictional facts. Both parties relied upon the judgment of the Court of Appeal in Woolworths Ltd v Pallas Newco Pty Ltd [2004] NSWCA 422; (2004) 61 NSWLR 707.
2. In Henderson, Beazley P (with whom Tobias AJA agreed) stated at [27]: "[27] If there is 'additional relevant information about the injury' then referral for further medical assessment is precluded 'unless the deterioration or additional information is such as to be capable of having a material effect on the outcome of the previous assessment': s 62(1A). Clause 14.6 of the Guidelines defines the word 'material' in s 62(1A) as further additional information capable of altering the outcome of a dispute about, relevantly, permanent impairment from not greater than 10 per cent to greater than 10 per cent whole person impairment or vice versa." (emphasis added)
3. At [49] her Honour referred to the additional reasons of Macfarlan JA in Rodger v De Gelder [2011] NSWCA 97; [2011] 80 NSWLR 594, where his Honour at [113] stated: "[113] The decision to refer a claimant for a further medical assessment is made by an administrative officer and, whilst not a purely procedural step, is nevertheless not the ultimate step in the relevant process (that being the further medical assessment itself). Bearing this in mind, my view is that on the proper construction of s 62(1A), the capacity of the additional information to affect a further medical assessment is a matter for the subjective satisfaction of the Proper Officer. It is not necessary that that capacity exist as a matter of objective fact." (emphasis added)
4. Beazley P in Henderson continued at [49] to [51]: "[49] Although I found it unnecessary to determine the issue whether the Proper Officer's decision to refer a matter for further assessment involved jurisdictional facts, the matter is directly in issue in this case. I agree with the remarks of Macfarlan JA. Further, this Court has now decided that s 62 is not concerned with jurisdictional facts: see QBE Insurance (Australia) Ltd v Miller [2013] NSWCA 442. I agree with the Court's decision in that matter and in particular with the analysis of Basten JA at [30]-[35]. [50] It follows, therefore, that the principal argument advanced by the appellant on the appeal must be rejected. [51] That leaves the question whether there was error of law in the Proper Officer's determination in rejecting the application that the matter be referred for further medical assessment. Section 62 precludes a referral unless that additional information has a particular quality, namely, that it be 'capable of having a material effect on the outcome of the previous assessment'. The Guidelines provide that if the Proper Officer is not satisfied of that matter, the application may be dismissed. Importantly, the Guidelines do not require satisfaction of something. Rather, they specify the outcome if the Proper Officer is not satisfied of something, namely, the matter referred to in s 62(1A)." (emphasis added)

Did the Proper Officer wrongly construe s 62?

1. What is in dispute is whether the Proper Officer properly determined whether the additional information was such as to be "capable of having a material effect on the outcome of the previous assessment"?
2. So far as whether the Proper Officer's opinion has been properly formed according to law, Basten JA in QBE Insurance (Australia) Ltd v Miller (2013) 67 MVR 322; [2013] NSWCA 442 at [36] stated: "36 Once it is accepted that the characterisation of the information is a matter to be considered in the first instance by the proper officer and not one to be determined by this Court afresh on a judicial review application, the review proceedings are limited to determining whether the proper officer's opinion has been properly formed according to law: Buck v Bavone [1976] HCA 24; 135 CLR 110 at 118-119 (Gibbs J); D'Amore at [220]. The critical question is thus 'whether the determination was irrational, illogical and not based on findings or inferences of fact supported by logical grounds': Minister for Immigration and Multicultural and Indigenous Affairs v SGLB [2004] HCA 32; 78 ALJR 992 at [38] (Gummow and Hayne JJ). Further, as explained by Latham CJ in The Queen v Connell; Ex parte Hetton Bellbird Collieries Ltd [1944] HCA 42; 69 CLR 407 at 432: 'If the opinion which was in fact formed was reached by taking into account irrelevant considerations or by otherwise misconstruing the terms of the relevant legislation, then it must be held that the opinion required has not been formed. In that event the basis for the exercise of power is absent, just as if it were shown that the opinion was arbitrary, capricious, irrational, or not bona fide.'"
3. Counsel for the plaintiff submitted that the Proper Officer misconstrued s 62(1 A) of the Act. According to the plaintiff, s 62(1A) requires that the Proper Officer determine whether the additional information "is such as to be capable of having a material effect on the outcome of the previous assessment", but the Proper Officer posited that if the clinical notes and the statement "were accepted" and the relevant categories reduced "then the claimant may be assessed under the threshold". She then indicated that "I am therefore satisfied that," and repeated the statutory formula that the material was "capable of having a material effect on the outcome of the previous assessment" (TB345).

Conclusion

1. The Proper Officer stated that she was satisfied that if the clinical notes of Ms Ozturk and the statement of Mr Rushworth were accepted and the categories for "social & recreational activity" and "concentration, persistence and pace" were "reduced to a lower category, then the claimant may be assessed under the threshold". She then concluded "I am therefore satisfied that the additional relevant information about the injuries is such as to be capable of having a material effect on the outcome of the previous assessment, satisfying the second test at section 62(1A) of the Act." (My emphasis added).
2. Relevant here is the well known statement of principle in Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259 at 271-272 where the plurality said: "In other words, the delegate starts and finishes with the correct test; it is only some phraseology in between which provides the basis for a conclusion that she had slipped from an assessment of real chance to an assessment of balance of probabilities. When the Full Court referred to 'beneficial construction', it sought to adopt an approach mandated by a long series of cases, the best exemplar of which is Collector of Customs v Pozzolanic. In that case, a Full Court of the Federal Court (Neaves, French and Cooper JJ) collected authorities for various propositions as to the practical restraints on judicial review. It was said that a court should not be 'concerned with looseness in the language ... nor with unhappy phrasing' of the reasons of an administrative decision-maker. The Court continued: 'The reasons for the decision under review are not to be construed minutely and finely with an eye keenly attuned to the perception of error'. These propositions are well settled. They recognise the reality that the reasons of an administrative decision-maker are meant to inform and not to be scrutinised upon over-zealous judicial review by seeking to discern whether some inadequacy may be gleaned from the way in which the reasons are expressed."
3. It is my view that the Proper Officer used the word "may" to indicate that she was not pre-empting the result of the MAS Assessor's redetermination. The Proper Officer then came to a conclusion, which was that she was "therefore satisfied that the additional relevant Information about the injuries is such as to be capable of having a material effect on the outcome of the previous assessment". She did apply the correct test. This situation here is different from what occurred in Doyle v Glass. In my view, the Proper Officer did not determine that the clinical notes and statement may have a material effect, but rather, determined that the additional relevant information about the injuries was such as to be capable of having a material effect on the outcome of the previous assessment, satisfying the test in s 62(1A) of the Act. The Proper Officer's reasons should not be "construed minutely and finely with an eye keenly attuned to the perception of error": Wu Shan Liang at 272.

MAS Assessor Virgona's decision dated 12 February 2015

1. The grounds of review of MAS Assessor Virgona's decision are that: (1) The Proper Officer and MAS Assessor Virgona denied the plaintiff procedural fairness by not providing him with an opportunity to be heard with respect to the further medical assessment and the issuing of the further certificate. (2) The plaintiff submitted that was denied the opportunity to provide the following: * evidence concerning his work performance at or before the further assessment; * evidence from his treating medical practitioner and psychologist addressing the period between assessment in 2013 and further assessment in 2015; and * evidence from a medico legal psychiatrist addressing his psychological condition in the period between assessment in 2013 and further assessment in 2015.

The further assessment

1. The Proper Officer referred consideration of "all aspects of the Assessor's assessment afresh" to a medical assessor (TB345). The referral for further assessment was limited to assessment of the plaintiff's psychological injury (TB345-346).
2. In NRMA's application for further assessment and the plaintiff's reply, the following pro forma information was contained which is relevant in relation to new material: "3. In accordance with clause 12.10 of the Medical Assessment Guidelines: No additional documents or information sought to be added to the list of documents to be referred to the Assessor may be lodged by either party after the lodgement of their application or their reply, except: 12.10.1 by consent of the other party; 12.10.2 in response to a specific request or direction from the Proper Officer, an Assessor or an officer of MAS, in circumstances where the Proper Officer is satisfied that any such document would be of assistance to the conduct of the assessment; or 12.20.3 if the Proper Officer is satisfied that exceptional circumstances exist; And any such documents must have been provided to the other party."
3. By letter dated 12 December 2014 (TB348), the Proper Officer referred the "further medical dispute" to MAS Assessor Virgona for further assessment. The letter enclosed "All information submitted to [Medical Assessment Service] by the parties in respect of the original medical assessment/s" including the certificates and reasons of MAS Assessor Baker and MAS Assessor Johnson. It also enclosed NRMA's application form together with supporting documents and the reply form (from the plaintiff) together with supporting documentation "relating to the current further application". At the conclusion of the letter to MAS Assessor Virgona, the Proper Officer said that he could consider new imaging studies relating to the radiology reports but, "You must NOT review any other new material presented by the claimant."
4. A letter dated 12 December 2014 was also sent to the plaintiff's solicitors advising that the plaintiff had an appointment with MAS Assessor Virgona scheduled for 22 January 2015 (TB350-351).
5. It is common ground that a medical assessor when conducting an assessment is obliged to afford the parties procedural fairness. The key question here is what is the content of the obligation to afford procedural fairness. In Kioa v West [1985] HCA 81; (1985) 159 CLR 550 at 584-585, Mason J identified that the statutory power is to be issued fairly, in accordance with procedures that are fair to the individual considered in the light of the statutory requirements, the interests of the individual and the interests and purposes sought to be advanced by the statute (see also Rodger v De Gelder (2015) 71 MVR 514; [2015] NSWCA 211 per Leeming JA at [93]). The statutory framework within which the decision maker exercises a statutory power is of critical importance in determining what procedural fairness requires: SZBEL v Minister for Immigration and Indigenous Affairs (2006) 228 CLR 152; [2006] HCA 63 at [25]-[26]. Gleeson CJ in Minister for Immigration and Multicultural Affairs; ex parte Lam [2003] HCA 6, (2003) 214 CLR 1 identified the fundamental proposition that "the concern of the law [in administrative decision making] is to avoid practical injustice": at [37]. A failure to accord procedural fairness amounts to jurisdictional error: Kirk v Industrial Relations Commission (NSW) (2010) 239 CLR 531; [2010] HCA 1 at [60].

Conclusion

1. The primary opportunity for a party to make submissions and to seek to adduce evidence on the further assessment is in the application for further assessment and the reply lodged by the parties. That material is required to be lodged at the MAA by the parties under the Guidelines and, should the further application be granted by the proper officer, an officer of the MAA is required to furnish all this material and their attachments to the further MAS assessor (see clause 14.11 and clause 9.11.5).
2. The further assessment involves the consideration by a MAS Assessor of all aspects of the assessment afresh, having regard to all previous submissions provided by the parties including those provided in the application for further assessment. The plaintiff provided submissions and further evidence to MAS Assessor. He also attended the appointment before the MAS Assessor Virgona and gave evidence and answered questions. His solicitors had not foreshadowed, prior to the appointment taking place, that further material was sought to be adduced in accordance with clause 12.10.1 due to the Christmas holidays, or failing that, clause 12.20.3. The plaintiff's solicitor ought to have been aware of these time constraints as they are set out on the pro forma application for reassessment and the reply.
3. The plaintiff was given an opportunity to present his case both in his reply documents that included further submissions and by attending the appointment with MAS Assessor Virgona where he could answer questions and provide information. It is my view that in these circumstances, the plaintiff was afforded procedural fairness. This ground of judicial review fails.
4. The result is that the further amended summons filed 7 September 2015 is dismissed.
5. Costs are reserved. The Court orders that: (1) The amended summons filed 7 September 2015 is dismissed. (2) Costs are reserved. (3) Liberty to apply.

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: 03 November 2015