Jubb v Insurance Australia Ltd

69 CLR 407 R v Toohey; Ex parte Northern Land Council (1981) 151 CLR 170 Rodger v De Gelder [2011] NSWCA 97; 80 NSWLR 594 Samad v District Court of New South Wales [2002] HCA 24; 209 CLR 140 Singh v Motor Accidents Authority of NSW (No 2) [2010] NSWSC 1443 Trazivuk v Motor Accidents Authority [2010] NSWCA 287; 57 MVR 9 Ward v Williams (1955) 92 CLR 496 Category: Principal judgment Parties: David Jubb (Appellant Insurance Australia Ltd (First Respondent) State Insurance Regulatory Authority (Second Respondent) Representation: Counsel: S. A. Beckett & G. Gemmell (Appellant) M.A. Robinson SC & A. Poljak (First Respondent)

Solicitors: C&M Lawyers (Appellant) Gillis Delaney Lawyers (First Respondent) Crown Solicitor's Office (Second Respondent) File Number(s): 2015/353289 Decision under appeal Court or tribunal: Supreme Court of New South Wales Jurisdiction: Common Law Division Citation: [2015] NSWSC 1617 Date of Decision: 3 November 2015 Before: Harrison AsJ File Number(s): 2014/372816

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

Judgment

1. MEAGHER JA: I agree with Gleeson JA.
2. GLEESON JA: This is an appeal from an order of Harrison AsJ on 3 November 2015 dismissing an application to set aside two decisions. The first was a decision of the third respondent as the proper officer of the Medical Assessment Authority (the Authority) to refer a medical dispute involving the plaintiff-appellant, Mr David Jubb, for further assessment following an application made by the first respondent under s 62 of the Motor Accidents Compensation Act 1999 (NSW) (the MAC Act). The second was a decision of the fourth respondent, Dr A Virgona, the medical assessor to whom the matter was referred for further assessment, to issue a certificate as to Mr Jubb's whole person impairment: Jubb v Insurance Australia Limited t/as NRMA Insurance [2015] NSWSC 1617. That order was made in the exercise of the court's supervisory jurisdiction pursuant to s 69 of the Supreme Court Act 1970 (NSW).
3. The parties to the appeal are, effectively, the appellant and the first respondent, trading as NRMA Insurance. The second respondent, State Insurance Regulatory Authority, is the successor to the Motor Accidents Authority as of 1 September 2015. Each of the second, third and fourth respondents has filed a submitting appearance, except as to costs.
4. The essential question raised by the appeal is whether the proper officer of the Authority misconstrued the pre-condition to referral of a medical dispute for further assessment under s 62(1) of the MAC Act on the ground of "additional relevant information" as qualified by subs (1A). (The terms of s 62 are set out below at [29].) The appellant contended that the proper officer misunderstood the nature of the opinion or state of satisfaction which the proper officer is required to form for the purposes of subs (1A). This is because, on the appellant's construction, s 62 excludes "additional relevant information" concerning an issue which has already been considered by the previous medical assessor. The asserted jurisdictional error by the proper officer may be characterised as a constructive failure to exercise jurisdiction. This error occurs when a decision-maker misunderstands the nature or limits of their functions or powers, and such an error of law will invalidate any decision of the proper officer which reflects it: Ex parte Hebburn Ltd; Re Kearsley Shire Council (1947) 47 SR (NSW) 416 at 420; Craig v South Australia [1995] HCA 58; 184 CLR 163 at 178-179; and R v Toohey; Ex parte Northern Land Council (1981) 151 CLR 170 at 267-268; Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; 206 CLR 323 at 339.

Relevant facts

1. On 21 July 2011, the appellant was injured in a motor vehicle accident. He made a claim against the first respondent (the insurer) as the relevant third party insurer for damages with respect to injuries suffered in the accident. The insurer admitted liability on 1 June 2012. However, there was a dispute about the degree of permanent impairment suffered by the appellant. In order to obtain an award of damages for non-economic loss, the appellant needed to demonstrate that he had suffered a degree of permanent impairment greater than 10 percent: MAC Act, s 131.
2. The appellant was medically assessed pursuant to the procedures established under Pt 3.4 of the MAC Act. Two medical assessments were undertaken; one with respect to his psychological injury, the other with respect to his physical injury, but only the first is presently relevant. Dr Baker completed this first assessment on 9 August 2013, assessing the degree of permanent impairment as 13 percent.
3. Subsequently, on 27 August 2014, the insurer lodged an application for a review of Dr Baker's assessment, pursuant to s 62 of the MAC Act. The basis of that application was "additional relevant information" about the appellant's injury: s 62(1)(a). The material relied upon by the insurer as "additional", was identified in the application (read with the attached submissions) as: surveillance reports dated 30 May and 6 June 2012 together with a film; a medical report of Dr Anup Mangipudi dated 28 September 2012; a statement of Mr David Rushworth dated 27 March 2014 (the appellant's manager at his employer-company); a resume of the appellant; and clinical notes of Ms Derya Ozturk (the appellant's treating psychologist). It was submitted by the insurer that the material was capable of having a material effect on the outcome of the previous assessment of Dr Baker: s 62(1A).
4. On 30 September 2014 the appellant's solicitors filed a response. In attached legal submissions, the appellant contended that the "additional information" relied on by the insurer was not capable of having a material effect on the outcome of Dr Baker's assessment. As to the clinical notes of Ms Ozturk, the parts relied on by the insurer were characterised as a small and unrepresentative part of those notes. As to the Rushworth statement, the appellant disputed Mr Rushworth's assertion that his work performance was not below standard to the point of requiring performance management. The appellant stated that Mr Rushworth was aware of very little surrounding the issues in the appellant's personal life.

Further background

1. It is desirable at this point to say something further about the first medical assessment by Dr Baker and the proper officer's reasons for her decision to refer the matter to an assessor for a further assessment.

The first medical assessment - psychological injury

1. Dr Baker's assessment of 9 August 2013 accepted that the appellant suffered from a psychological condition. Dr Baker diagnosed the appellant's condition as an adjustment disorder with Mixed Anxiety and Depressed Mood using DSM IV TR criteria code No. 309.28. He found that the motor accident was causal in the appellant's development of this permanent impairment and that the appellant had not suffered from this diagnosed condition prior to the accident. As indicated above, he assessed the appellant's whole person impairment as 13%.
2. In reaching that opinion, Dr Baker set out in table form, his reasons with respect to categories in the Psychiatric Impairment Rating Scale at cll 7.19 and 7.20 of the Authority's Permanent Impairment Guidelines dated 1 October 2007 (issued under s 44(1)(c) of the MAC Act). Dr Baker's reasons with respect to the categories which are presently relevant were: 1. "Concentration, persistence and pace" - the appellant was unable to concentrate for more than a few minutes without developing a severe headache. He stated that he had difficulty completing his role and his employment was stopped as a consequence of his slow pace of work and lack of persistence in his role. He stated that he had taken many days of sick leave since the motor accident and that his poor concentration had contributed to his loss of employment; 2. "Social and recreational activities" - the appellant stated that he still attended his children when he was given permission to take them to the local park to play. He stated that he struggled to enjoy his children's play since the motor accident.

The reasoning of the proper officer

1. In her written reasons dated 28 November 2014, the proper officer noted that she had considered the application for further assessment, the reply and all supporting documentation which had been submitted, including the further submissions provided by the parties, before expressing her satisfaction as to the condition in s 62(1A) as follows: 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.
2. Having identified the five items of information relied on by the insurer in its application for further referral (set out at [10] above), the proper officer determined that only two items were "additional information" - the clinical notes of Ms Ozturk and the Rushworth statement.
3. In relation to Ms Ozturk's clinical notes, the proper officer stated: 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 of 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 Legislative Scheme

1. The MAC Act provides for a scheme of compulsory third party insurance and payment of compensation relating to injuries sustained as a consequence of motor vehicle accidents. A description of the operation of the MAC Act is to be found in Rodger v De Gelder [2011] NSWCA 97; 80 NSWLR 594 (Rodger v De Gelder) at [7]-[15] (Beazley JA).
2. Pt 3.4 of the MAC Act deals with the resolution of medical disputes, including disputes about "medical assessment matters". Such disputes may be referred to the Authority for assessment: ss 57, 58 and 60. One type of medical assessment matter is a disagreement between a claimant and an insurer about 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 percent: s 58(1)(d).
3. The assessor to whom a referral is made is required to give a certificate as to the matters referred: s 61(1). A certificate as to a medical assessment 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: s 61(2).
4. Section 62 provides for the referral of matters for further medical assessment on the application of either a party, a claims assessor or the court. It is appropriate to set out that provision in full: 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) by a court or claims assessor. (1A) A matter may not be referred again for assessment by a party to the medical dispute on the grounds of deterioration of the injury or additional relevant information about the injury unless the deterioration or additional information is such as to be capable of having a material effect on the outcome of the previous assessment. (1B) Referral of a matter under this section is to be by referral to the member of staff of the Authority who is designated by the Authority for the purpose (in this Part referred to as the proper officer of the Authority). (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.

The grounds of the appellant's application for judicial review

1. In his further amended summons filed 7 September 2015, the appellant advanced multiple grounds of review described generally (and without differentiation) as jurisdictional error and/or errors of law on the face of the record.
2. The first was that the proper officer wrongly construed s 62 of the MAC Act in determining that the additional information was capable of having a material effect on the outcome of the previous assessment in finding that the appellant "may be assessed under the threshold" (ground 5AA).
3. The second ground was that the proper officer 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 Dr Baker (ground 5A).
4. The third and fourth grounds were that the proper officer wrongly construed s 62 of the Act in determining that the clinical notes of Ms Ozturk and the Rushworth statement were additional relevant information when they concerned issues already addressed by Dr Baker; the appellant's relationship with his children and certain ideations (ground 5B), and the appellant's work performance (ground 5D), respectively.
5. The appellant did not press ground 5E before the primary judge. This ground asserted that the proper officer wrongly construed s 62 of the MAC Act by determining that the Rushworth statement was additional relevant information when it was material that could reasonably have been obtained by the insurer before Dr Baker's assessment.
6. With respect to Dr Virgona's decision to issue a further certificate, two grounds of review were advanced. The first was that Dr Virgona did not have jurisdiction to issue a further certificate because the decision of the proper officer to refer the matter for a further assessment was invalid (ground 5F). This was the only ground relied on by the appellant in this Court. The second was that the Authority and Dr Virgona had both denied the appellant procedural fairness. This ground was rejected by the primary judge, and was not pursued on appeal.
7. As the authorities in this Court have emphasised, the distinction between jurisdictional error and error of law on the face of the record is important, notwithstanding that there are often difficulties in distinguishing between the two types of error: Allianz Australia Insurance Ltd v Kerr [2012] NSWCA 13; 83 NSWLR 302 at [14]-[17]; Henderson v QBE Insurance at [85]. This is because, while jurisdictional error may be established by any admissible evidence relevant for that purpose, a claim for relief based upon an error of law within jurisdiction must identify the error as appearing "on the face of the record".

Primary judge's reasoning

1. After referring to the key propositions stated in the trilogy of cases in this Court mentioned above (at [31] - [32]), her Honour found, as was common ground, that "what may properly constitute 'additional relevant information' in s 62(1A) is a matter for the satisfaction of the Proper Officer, not one for determination by a court" (at [36]).
2. Her Honour identified the matter in "dispute" as being 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": at [37]. Her Honour accepted that the standard of review was whether the proper officer's opinion has been properly formed according to law. Reference was made to the passage in QBE Insurance v Miller at [36] (Basten JA) (part of which is set out at [34] above). The appellant accepted that her Honour had correctly stated the applicable principles.
3. Her Honour then recorded the appellant's argument (at [39]) that the proper officer had misapplied the statutory test in s 62(1A) by relying on the finding, in her reasons, that if the clinical notes of Ms Ozturk and the Rushworth statement were accepted, "the claimant may be assessed under the threshold" [emphasis added].
4. Her Honour rejected this argument and accepted the insurer's submissions that the information in the clinical notes of Ms Ozturk and the Rushworth statement is such as to be capable of having a material effect on the outcome of the previous medical assessment at [42]-[46]. Her Honour distinguished her earlier decision in Doyle v Glass [2010] NSWSC 94; 55 MVR 156 and found that the proper officer used the word "may" to indicate she was not pre-empting the result of the reassessment.
5. Her Honour found that the proper officer had applied the correct test under s 62(1A) in concluding that she was "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". Her Honour added that the reasons of the proper officer should not be construed minutely and finely with an eye keenly attuned to error: at [49]. Reference was made to Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; 185 CLR 259 at 272.
6. Finally, her Honour rejected the appellant's contention that he had been denied procedural fairness by the Authority and Dr Virgona in connection with Dr Virgona's issue of a further certificate.

Issues on appeal

1. The primary issue on appeal is whether the proper officer misconstrued s 62(1A) of the MAC Act by accepting that the material relied upon by the insurer in its application for reassessment of the medical dispute was "additional relevant information" (ground 5). It is contended that the information in the clinical notes of Ms Ozturk and the Rushworth statement did not answer the description of "additional relevant information" in s 62(1A) of the MAC Act because it concerned two issues: the appellant's relationship with his children and ideas of suicide and self-harm (ground 2); and his work performance (ground 3), which had already been considered by the previous medical assessor, Dr Baker. These grounds may be collectively described as the 'same issue' grounds.
2. As mentioned, the appellant also sought to rely on a new point on appeal - the relevant considerations argument (proposed ground 3A). It is contended that the proper officer was legally obliged to, and had failed to, take into account two factors in the exercise of the discretion (contained in s 62(1) of the MAC Act) to refer a matter for a further assessment, namely: (a) whether the "additional" information was obtained with due diligence; and (b) whether the "additional information" concerned the same issues as have already been considered by the previous medical assessor.
3. Assuming his success in challenging the proper officer's decision, the appellant contended that the further assessment by Dr Virgona is, consequentially, also invalid and should be set aside (ground 6).

A. Construction of s 62(1A) - "additional relevant information"

1. Counsel for the appellant identified the additional information relied on by the insurer in the clinical notes of Ms Ozturk as relating to the "issues" of the appellant's general mental state, relationship with his children, therapy, self-harm, and suicidal ideation. The additional information in the Rushworth statement was identified as relating to the "issue" of the appellant's work performance. Counsel for the appellant properly acknowledged that in each case the information was "relevant information" to the assessment of the degree of permanent impairment of the appellant caused by the motor accident. It was not in dispute that the information relied on by the insurer as "additional", addressed "issues" that had already been considered by Dr Baker in his assessment on 9 August 2013.
2. On the appellant's proposed construction of s 62(1A), the phrase "additional relevant information" is to be read down as excluding information concerning issues which have already been considered by the previous medical assessor. This constraint is required, the appellant argued, "otherwise there could be recurrent applications for reassessment … and there must be some limit placed on that".

The text, objects and structure of the MAC Act

1. Significantly, the constraint suggested by the appellant is not based on the text of s 62. The proposed narrow construction of the phrase "additional relevant information" is said to flow from the objects of the MAC Act and its structure.
2. As to the objects of the MAC Act, the appellant drew attention to the object in s 5(1)(b) of "encouraging early resolution of compensation claims" and the terms of s 6(1), which requires that preference be given to a construction that promotes the purpose or objects of the MAC Act. The appellant submitted that to permit a further assessment on the "same issue" as considered by the previous medical assessor, would be inconsistent with the object of encouraging early resolution of compensation claims because there would be no end to the controversy.
3. As to the structure of the MAC Act, the appellant pointed to the availability of other means of review of medical assessments, namely by referral to a review panel on the ground that the assessment is incorrect in a material respect (under s 63) or by referral of a claims assessor or a court (under s 62(1)(b)). These were relied upon by the appellant as a contextual indication of an intention in s 62(1)(a) that there is essentially "one opportunity to present all the relevant material" to the medical assessor, and that referral for a further assessment on the ground of "additional information" is limited to "additional information" concerning an issue which has not already been considered by the medical assessor.
4. There are a number of difficulties with the appellant's narrow construction, relying, as it does, on the "floodgates" argument and the availability of other avenues of review of a medical assessment under the MAC Act.
5. The first is that it ignores the clear language of s 62, including the phrase "referred again". The ordinary meaning of the word "additional" is "supplementary". In the context of s 62(1)(a) and subs (1A), the phrase "additional relevant information", as used in s 62, refers to information which is additional to that which was before the medical assessor when the previous medical assessment was carried out: Miles v Motor Accident Authority of NSW [2013] NSWSC 927 (Miles) at [34] (Hoeben CJ at CL). That the information relied on as being "additional", relates to the "same issue" as considered by the previous medical assessor, is not inconsistent with the ordinary meaning of "additional" when used in the phrase "additional relevant information". As Hoeben CJ at CL observed in Miles (at [34]): The comparison is between information which was before the medical assessor when the previous medical assessment took place and information which is additional to that which is of such a character that it is capable of changing the outcome of the previous medical assessment if it were placed before the medical assessor.

Appellant's reliance on common law analogies is misplaced

1. The appellant also sought support for the proposed construction of s 62(1A) by analogy with (a) the principle of finality in judicial proceedings, (b) the principles governing the adducing of fresh evidence in civil appeals, and (c) the principle of abuse of process.
2. The suggested analogy with the "finality" principle was a variant of the "floodgates" argument. It was contended that the power of referral under s 62(1)(a) was to be understood as reflecting the principle that controversies once resolved are not to be re-opened except in a few narrowly defined circumstances. Reference was made to the observations of Handley AJA (Young JA agreeing) in Trazivuk v Motor Accidents Authority [2010] NSWCA 287; 57 MVR 9 (Trazivuk) at [114]-[115] that the "finality" principle is relevant to the exercise by a claims assessor of his (or her) discretion to order a further assessment.
3. The appellant's reliance on Trazivuk is misconceived. That case involved the exercise of discretion by a claims assessor under s 62(1)(b) of the MAC Act as to whether or not to refer a matter for a further assessment. Trazivuk says nothing about the formation of the proper officer's opinion or state of satisfaction under s 62(1A) of the MAC Act. Nor is the "finality" principle relevant to the satisfaction of that precondition.
4. The suggested analogy with the common law understanding of "fresh evidence" in civil appeals was said to provide a basis for reading down the phrase "additional relevant information" so as to exclude information not obtained with "due diligence". Reference was made to Greater Wollongong City Council v Cowan [1955] HCA 16; 93 CLR 435; and Akins v National Australian Bank (1994) 34 NSWLR 155 dealing with the discretion to admit further evidence on appeal under s 75A(7) of the Supreme Court Act 1970 (NSW).
5. It can be accepted that referrals in circumstances where parties have not been diligent in obtaining material and placing it before the assessor are undesirable: Mullin at [35] (Beech-Jones J). Nonetheless, as Beech-Jones J observed (at [35]), that consideration, along with others such as avoiding the inconvenience of the adjournment of court proceedings or claims assessments is: … best balanced and resolved by the proper officer exercising a discretion rather than construing the word "additional" as though it incorporates the common law's understanding of "fresh evidence" in civil appeals which has been developed as a limited exception to the principles of finality in litigation (Council of the City of Wollongong v Cowan (1955) 93 CLR 435). There is no counterpart principle applying to assessments of medical disputes under the MAC Act.

Singh (No 2)

1. Next the appellant referred to statements of Rothman J in Singh v Motor Accidents Authority of NSW (No 2) [2010] NSWSC 1443 (Singh (No 2)) as supporting a constrained approach to the meaning of "additional information". The statements in Singh (No 2) are not applicable in the present case. That case proceeded on an incorrect approach to the precondition in s 62(1A) and is distinguishable from the present case on the facts. Further, Singh (No 2) should not be read as supporting the "same issues" limitation to "additional information" in s 62(1A) advanced by the appellant in the present case.
2. Singh (No 2) involved a challenge to the decision of the proper officer to refer a matter for further assessment, following an assessment by a review panel: see Singh v Motor Accidents Authority of NSW [2010] NSWSC 550: at [10]. The "additional information" relied on in the insurer's application for referral included three medical opinions which post-dated the panel's decision, together with a DVD of surveillance and an investigation report which pre-dated the panel's decision.
3. Rothman J did not address the question of whether the proper officer's opinion as to the pre-condition in s 62(1A) had been formed according to law. Instead, his Honour proceeded on the basis that the precondition to a referral for further assessment in s 62(1A) was a jurisdictional fact, and accordingly a matter for the determination by the court as an objective fact: at [39]. That approach was wrong for the reasons subsequently articulated by this Court in Rodger v De Gelder, QBE Insurance v Miller and Henderson v QBE Insurance. That error may be seen as having infected his Honour's reasoning in respect of the meaning of "additional relevant information" in s 62(1A). For this reason, his Honour's consideration of the meaning of "additional information" must be treated with some caution.
4. The two propositions in Singh (No 2) on which the appellant relied are conveniently summarised by Button J in McCosker v Motor Accidents Authority of NSW [2015] NSWSC 434 at [41] as follows: The first is that material that was in the possession of a party at the time of the original assessment cannot be relied upon by that party as additional information in support of an application for a further assessment. The second proposition is that material that is an expert opinion substantially based upon material that was in the possession of the party at the time of the original assessment, even if the expert opinion was obtained after the original assessment, will also fall within the prohibition contained in the first proposition.

B. "Relevant considerations" ground

1. On the hearing of the appeal, the appellant sought leave to file a further amended notice of appeal. The proposed amendments involved deleting ground 1, which asserted that the primary judge had failed to provide adequate reasons for her decision. This amendment, which was not opposed, should be allowed.
2. The appellant also sought to add a new ground, 3A, which asserted that her Honour erred by not finding that the proper officer had failed to take into account a relevant consideration, namely:

• that the insurer had not obtained the Rushworth statement with due diligence before the previous assessment of Dr Baker; and
• that the information relied upon by the insurer as additional relevant information concerned issues which had already been considered by the previous medical assessor, Dr Baker.

1. The appellant initially submitted in writing that the "relevant considerations" ground went to the exercise of the proper officer's discretion to refer a matter for a further assessment: s 62(1). The asserted jurisdictional error was characterised as the proper officer's failure to take into account mandatory considerations: Peko-Wallsend, 39. The appellant argued that these relevant factors, although not expressly stated in the MAC Act, are to be implied because the exercise of discretion (under s 62(1)) to refer a matter for a further assessment is constrained by the common law principles concerning finality, "fresh evidence" on appeal and abuse of process.
2. In oral argument, when confronted with the difficulty of seeking to rely on a new point on appeal, counsel for the appellant shifted ground and faintly contended that the relevant considerations ground went to the formation of the proper officer's opinion or state of satisfaction under s 62(1A) of the MAC Act.
3. The insurer opposed this amendment. The Court heard argument on the proposed new ground 3A and indicated that it would deal with the amendment application in its reasons. For the following reasons, leave to add proposed ground 3A should be refused.
4. The essential difficulty with proposed ground 3A is that seeks to advance a new point which was not raised before the proper officer and not relied upon as a ground of review before the primary judge. Counsel for the appellant acknowledged that the "relevant considerations" argument was not put in terms to the proper officer or the primary judge as legally obliging the proper officer to take into account particular factors in exercising the discretion given in s 62(1).

Conclusion and Orders

1. The application for leave to file a further amended notice of appeal should be granted to the extent of deleting of ground 1 and otherwise refused in relation to the proposed ground 3A.
2. The appeal has failed. There is no reason why costs should not follow the event: Uniform Civil Procedure Rules 2005 (NSW), r 42.1. Accordingly, I propose the following orders: 1. grant leave to file a further amended notice of appeal deleting ground 1; 2. direct the appellant to file a further amended notice of appeal within 14 days; 3. appeal dismissed; 4. appellant to pay the first respondent's costs.
3. PAYNE JA: I agree with Gleeson JA and the orders he proposes.

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: 04 July 2016