• 5. The MAI Act establishes a scheme for review of an insurer's internal review decisions. That scheme imposes particular constraints on the nature of the review process. The MAI Act sets out what constitutes an "ACAT reviewable decision".[1] Section 193 states that certain people, including an applicant for defined benefits under the MAI Act, may seek review of an ACAT reviewable decision "on a question of law or fact". The case law recognises that ACAT reviews of internal decisions by the insurer under section 193 are reviews somewhat in the nature of judicial review, examining whether the decision under review was correctly and lawfully made: see Neish v NRMA (Neish),[2] Williams v GIO (Williams).[3]
• 6. Section 197(1) of the MAI Act provides that the ACAT, in deciding an application, must affirm, amend or set aside the decision under review, and if setting it aside must either substitute its own decision or remit the matter for reconsideration by the insurer. The review is limited to the evidence that was before the insurer,[4] but the Tribunal may admit additional evidence that was not reasonably available when the decision under review was made.[5]

1. Both parties made application under section 197(3) for the admission of additional evidence. On 18 October 2023, the applicant sought leave to file clinical notes from his physiotherapist and podiatrist and to provide evidence relating to the use of cleats on his bicycle; on 27 November 2023, he sought leave to file a letter dated 20 November 2023 from his surgeon, Professor Martin Sullivan. The Tribunal gave leave on 28 November 2023 for Professor Sullivan's letter of 20 November 2023 to be admitted; and adjourned the application for admission of the clinical notes from the physiotherapist and podiatrist pending advice whether that material was available to the respondent's internal reviewer and would have been admitted in any case (in the event these papers form part of the bundle filed by the respondent). On 23 January 2024, the applicant sought leave to admit an amended letter from Professor Sullivan and a collection of online reviews of Dr Wallace; on 23 February 2024, the Tribunal approved the admission of Professor Sullivan's amended letter but denied the application to admit the online reviews.
2. On 8 March 2024, the respondent sought leave to file a supplementary report from Dr Wallace, which had been requested from him but not yet received. The Tribunal admitted the report, once available, with the omission of the bulk of the material, leaving only one sentence and the acknowledgement of the Code of Conduct for expert witnesses as material on which the respondent could rely.
3. These considerations regarding the admission of additional evidence have particular relevance in the present matter because at the hearing the respondent contended that the additional evidence could not be relied on to determine whether or not an error of fact had been made, but only for the clarification or confirmation of questions of fact already determined (with certain limited exceptions not presently relevant).[6]
4. The MAI Act in section 193(1) allows an external review of an insurer's ACAT reviewable decision "on a question of law or fact", and subsections 197(2) and (3) then limit the evidence that may be used in that external review. It follows that the nature of the review is necessarily constrained by these provisions of the MAI Act. The review differs from a merits review, in which all the evidence would be gathered, and a new decision would be freshly arrived at; rather the review is focused on the question of whether the reviewable decision was lawfully taken. This means that for questions of fact the enquiry that must be made is not whether the finding was right, or whether an alternative finding was available or ought to have been preferred, but simply whether the finding that was made was available or open to the decision-maker, on the evidence - whether it was arrived at by a lawful fact-finding process. This approach is established in the case law: Neish and Williams both note the absence of complete clarity in the drafting of the MAI Act on this point, and derive their understanding of the kind of review that is required from relevant parts of the Explanatory Statement to the original Bill, as follows:

In deciding an application ACAT must either affirm, amend or set aside the decision and: substitute another decision in its place; or remit the matter back to the insurer. As the application is not a merit review, only a review on questions of law and fact, ACAT can only consider information that was available to the insurer. However, ACAT may give permission for a person involved in the external review to present information that was not reasonably available at the time the insurer made the decision. This may apply in the circumstances where a person has had a medical examination conducted however, the report was not available before the decision was made.

1. The respondent contended that the constraint imposed on the review by section 193 implied that any additional evidence admitted under subsection 197(3) could not be used to arrive at the conclusion that a fact had been unlawfully found, citing in support Waterford v Commonwealth (Waterford)[7] and Australian Broadcasting Tribunal v Bond (Bond).[8] In the first of those matters, on an appeal to the Federal Court from a decision by the Commonwealth's Administrative Appeals Tribunal (AAT), Brennan J commented as follows:[9]

A finding by the AAT on a matter of fact cannot be reviewed on appeal unless the finding is vitiated by an error of law. Section 44 of the AAT Act confers on a party to a proceeding before the AAT a right of appeal to the Federal Court of Australia "from any decision of the Tribunal in that proceeding" but only "on a question of law". The error of law which an appellant must rely on to succeed must arise on the facts as the AAT has found them to be or it must vitiate the findings made or it must have led the AAT to omit to make a finding it was legally required to make. There is no error of law simply in making a wrong finding of fact. Therefore an appellant cannot supplement the record by adducing fresh evidence merely in order to demonstrate an error of fact.

1. In the second matter, arising under the Administrative Decisions (Judicial Review) Act (1977) (Cth) (the ADJR Act), Mason CJ commented in similar terms:[10]

However, in ordinary circumstances, a finding of fact, including an inference drawn from primary facts, will not constitute a reviewable decision because it will be no more than a step along the way to an ultimate determination. Of course an ultimate determination which depends upon a finding of fact vitiated by error of law or made without evidence is reviewable ... In such a case the finding of fact may be challenged as an element in the review of the ultimate determination. But the point remains that ordinarily a finding of fact will not be susceptible to review independently of the ultimate decision.

Powerful considerations support the correctness of this view. The Administrative Appeals Tribunal Act 1975 (Cth) ("the AAT Act") provides specifically for review on the merits by the Administrative Appeals Tribunal. It is scarcely to be supposed that the Parliament, in so providing, nevertheless intended to invest the Federal Court with a similar jurisdiction under the ADJR Act, for that would be the effect of that Act if it were to confer jurisdiction to review findings of fact generally. Indeed, the concept of judicial review which finds literal expression in the title of the ADJR Act and in its operative provisions tells against the existence of such a wide jurisdiction. The expression "judicial review", when applied to the traditional review functions of the superior courts in our system of justice, ... ordinarily does not extend to findings of fact as such. To expose all findings of fact, or the generality of them, to judicial review would expose the steps in administrative decision-making to comprehensive review by the courts and thus bring about a radical change in the relationship between the executive and judicial branches of government.

1. The respondent had not made these citations known to either the Tribunal or the applicant before the hearing. I gave the applicant until 14 May 2024 to make submissions on the cases and issues raised by them. The applicant made a submission on 6 May 2024.
2. In my view the respondent's argument about the use to which evidence admitted under section 197(3) can be put is misconceived, for several reasons. In the first place, the review function in the MAI Act is created by statute, and what can take place in the review process is determined by the nature of the process as set out in the statute. Section 197 in its entirety reads as follows:

_(1) In deciding an application for external review of an ACAT reviewable decision, the ACAT must, by order - _

(ii) remit the matter for reconsideration by the insurer that made the decision (the decision-maker) in accordance with any direction of the ACAT.

(2) In deciding the application for external review, the ACAT must only consider the information that was available to the decision-maker when the decision was made.

(3) However, the ACAT may, on application by a party, give the party leave to present information or evidence that was not reasonably available to the decision-maker when the decision was made.

a medical report for an examination undertaken, but not reported on, when the decision was made

(4) A regulation may prescribe conditions for allowing additional information or evidence to be presented under subsection (3).

• 15. It is apparent that the effect of subsections (2) and (3), taken together, is to limit the accumulation of evidence in preparation for a hearing. Subsection (2) imposes an overall requirement that the ACAT rely on the same evidence as the internal reviewer, but subsection (3) allows additional evidence to be taken into account, but in strictly limited circumstances. The effect of the "However" at the beginning of subsection (3) is the same as if the words "Notwithstanding subsection (2)" had been used; the effect is that evidence admitted under subsection (3) has the same status as evidence under subsection (2). There is nothing in the statute that would lead to a different conclusion. I note that this conclusion is consistent with how Acting Presidential Member (APM) Kyprianou went about the hearing process in Neish: at the hearing APM Kyprianou allowed the applicant in that matter to give oral evidence to dispute statements of fact in a medical report on which the internal reviewer had relied.[11]

1. The Explanatory Statement, quoted earlier, indicates clearly that the review to be undertaken is not a review on the merits; but it does not provide much guidance beyond that - and it certainly does not encourage the Tribunal to undertake a judicial review process with all the constraints and limitations that attend that kind of process in the courts. The kind of review that is to be undertaken is governed by the phrase "on a question of law or fact" in section 193. That has some similarities with the basis of an appeal from the AAT to the Federal Court under section 44 of the Administrative Appeals Tribunal Act (1975) (Cth) (the AAT Act) ("on a question of law"), but other formulations exist elsewhere: section 5 of the ADJR Act allows a person aggrieved by a government decision to apply for judicial review under a long list of possible grounds, each of which corresponds to an established ground for judicial review under common law.

• 17. Closer to home, the internal appeal process of the ACAT resembles the MAI external review in that an appeal from a tribunal decision may be brought within the Tribunal "on a question of fact or law".[12] But the ACT Civil and Administrative Tribunal Act 2008 (the ACAT Act) then provides that the appeal may be heard either as a review of the Tribunal's decision at first instance or as a new application,[13] and the Appeal Tribunal may make its own findings of fact and receive new evidence. When, in exceptional cases, an appeal is heard as a new application, the appeal functions essentially as a merits review; even where the appeal is conducted as a review of the decision at first instance, the appeal Tribunal can choose whether to admit further evidence (see Mansour v Dangar;[14] Hamers v South Canberra Holdings Pty Ltd;[15] He v Qin & Ors;[16] Hurst-Myers v Aulich Civil Law Pty Ltd[17]). These examples suggest that the formula that a matter may be reviewed "on a question of fact or law" does not require that the review is constrained along the lines the respondent suggests; rather, the accompanying provisions that govern different aspects of the review process will determine what shape the review takes.

1. Neither the AAT Act nor the ADJR Act provide for a review process that allows the admission of new evidence, but section 197 of the MAI Act does exactly that. This means that the process is different from those established by the two Commonwealth Acts. And as a matter of common sense, it is entirely illogical that the ACT legislature would have allowed the admission of new evidence under the MAI Act on the basis that that evidence could not be drawn on for the purposes of the review once admitted or, as the respondent contends, could be drawn on for only the most limited of purposes, and without those limited purposes being specified in the statute. In my view it is plainly the intention of the MAI Act that this Tribunal would be able to rely on any additional evidence admitted under section 197(3) in arriving at an external review decision, including on any questions of fact that might arise in the review.
2. A further basis for distinguishing the review process under the MAI Act from those cited by the respondent is that although the review established by section 193 of the MAI Act is reasonably described as "in the nature of judicial review" or focused on "the legality rather than the merits of the decision", this does not mean it is identical with the judicial review process undertaken by the courts. Courts have always been careful to maintain the distinction between the political and administrative branches of government (the legislature and the executive) on the one hand, and the judiciary on the other; accordingly, when investigating the lawfulness of a government decision - and the two examples cited by the respondent are both cases of this kind - courts will be careful to limit their purview to questions of legality and avoid interfering with questions of fact that are properly the province of the executive. For the Commonwealth, in particular, distinctions between the role of the executive and that of the courts assume special importance because of the separation between judicial and executive functions under the Constitution, as referred to by Mason CJ in the second of the cases cited above.
3. The review of an ACAT reviewable decision under the MAI Act, however, is very different from judicial review of a government decision. In the first place, it is undertaken not by a court, but by a tribunal, itself part of the executive arm of government. It is not a review of a government decision, but rather of an insurer's internal review decision: the ACAT is given a special role to resolve the differences between the insured and insurer under the contract of insurance between them. I can see no reason why the particular constraints of judicial review should be imported into such a different context and environment.
4. It is my conclusion that additional evidence admitted under subsection 197(3) of the MAI Act will have the same status as the evidence that was before the internal reviewer and may be used for the same purposes, including for determining whether an error of fact was made in the internal review process.

1. The issues before the Tribunal for decision are:

(a) whether, on the evidence, it was open to the internal reviewer to make a finding that the exacerbation of the applicant's right ankle injury was not the result of the accident;

(b) whether a different conclusion should be arrived at, once the evidence additionally admitted is taken into account; and

(c) whether the process followed by the respondent was in accordance with the MAI Act and Guidelines, and with procedural fairness.

• 23. The MAI Act establishes a scheme to simplify motor accident insurance in the ACT and make it easier to navigate.[18] A Motor Accident Insurance Commission is established by the Act[19], its functions including the supervision of the scheme, the regulation of insurers and issuing, monitoring and reviewing MAI Guidelines provided for in the Act.[20]
• 24. A person who suffers a personal injury as a result of a motor accident in the ACT is entitled to defined benefits,[21] which include income replacement, medical treatment and care, quality of life benefits, death benefits and funeral benefits.[22]

1. Section 110 defines treatment and care, which includes medical treatment, mental health treatment and pharmaceuticals; section 112 says that a person injured in a motor accident is entitled to treatment and care expenses; section 113 states (so far as is relevant):

113. Meaning of treatment and care expenses - ch 2

treatment and care expenses_, for a person injured in a motor accident - _

(a) means expenses incurred by the injured person in providing for the injured person's treatment and care; but

_(b) does not include expenses incurred for treatment and care - _

Note Section 120 deals with deciding whether treatment and care is reasonable and necessary.

(ii) that did not relate to a personal injury sustained in the motor accident; or

• 26. The MAI Act identifies certain decisions by an insurer as internally reviewable decisions, including decisions rejecting liability for defined benefits.[23] The Act then allows certain people, including applicants for benefits, to seek internal review of an insurer's internally reviewable decision.[24] The MAI Guidelines may provide for how an internal review is to be conducted, and an internal review must comply with those Guidelines.[25] An insurer must complete an internal review within 10 days of receiving an application, making a new decision affirming, amending or setting aside and substituting the internally reviewable decision. The insurer must give the applicant notice of the new decision, a statement of reasons, and information about how to apply for external review.[26]
• 27. The MAI Act identifies decisions (ACAT reviewable decisions) for which applicants may seek external review by the ACAT, including decisions by the insurer to reject liability.[27] A review by ACAT may be made "on a question of law or fact".[28] Section 197 of the Act, quoted above, sets out how a review decision by the ACAT must be made.

1. The Act is accompanied by a number of sets of Guidelines (the MAI Guidelines) made by the Commission to explain and prescribe how the Act should operate. The relevant Guidelines in the present matter are the Motor Accident Injuries (Treatment and Care) Guidelines 2023 (the Treatment and Care Guidelines) and the Motor Accident Injuries (Internal Review) Guidelines 2022 (the Internal Review Guidelines).

1. The facts of the accident, its severity, and the injuries to the applicant's spine are not at issue in the present matter, nor is the psychological element in the applicant's claim. On the morning of 25 January 2023, the applicant was on his bicycle at a roundabout when he was struck by a vehicle for which the respondent was the insurer, and he was thrown a substantial distance across the road. From his account of the event, it is indeed remarkable that he was not more seriously injured.

• 30. The applicant was taken to The Canberra Hospital (TCH), where he was reported as complaining of pain in his back. The Emergency Department discharge report[29] records that he had suffered a minimally displaced compression fracture of the T8 vertebral body, but that other parts of his spine and related processes were intact. He was discharged the same day with directions regarding limitations on lifting weight and with pain relief medication.
• 31. Following the accident, the applicant lodged a claim with the respondent,[30] and the respondent accepted liability for a significant injury to the applicant's back and for psychological effects.[31]
• 32. It is not disputed that at the time of the accident the applicant had an existing injury to his right ankle. There is a body of evidence, dating from 2017 and 2022, relating to the ankle. The injury first occurred in 2017. A report by an orthopaedic surgeon, Dr Gawel Kulisiewicz, to the applicant's then general practitioner, Dr Mark Hislop, dated 21 June 2017, states that the applicant twisted his ankle while playing rugby, leaving him with pain and swelling over the lateral aspect of his right foot.[32] Dr Kulisiewicz attempted conservative therapy (strapping and a boot) but a note to Dr Hislop of 18 August 2017 advises that the conservative therapy was unsuccessful and that Dr Kulisiewicz would undertake surgery.[33] A further note to Dr Hislop reports surgery - right ankle peroneal tendon reconstruction - as having occurred on 31 August 2017.[34] In other reports, the injury is described as a rupture of the ankle ligaments.[35] By May 2018, the applicant appears to have made a complete recovery and could return to all his pre-injury activities.[36]
• 33. The ankle injury reappeared in 2022. The applicant presented at TCH on 13 June 2022, having rolled his ankle while skiing.[37] A report by the Department of Radiology at TCH notes an increase in clicking of the ankle and discomfort over the injury site. This was apparently a worsening of the ankle problem, as the applicant had rolled his ankle when playing squash two and a half weeks earlier. An X-ray of the joint showed that the repair from 2017 was visible and intact, with no new fracture and no joint effusion.[38] In an email to Dr Kulisiewicz dated 14 June 2022 the applicant reported clicking in his right ankle and that it had caused some discomfort when he had been skiing.[39] On 17 June 2022, the applicant was referred once again to Dr Kulisiewicz,[40] the referral noting that when the applicant engaged in activities such as squash he was conscious of noise and instability in the ankle. He had attempted to strengthen and stabilise the ankle through physiotherapy, but without result. An MRI of the ankle on 21 June 2022 reported it as largely normal, but with "oedema involving the talus anterior and inferiorly", suggesting to Dr Rafal Grabinski, the radiologist, that there had been a "contusion and impaction injury". Dr Grabinski identified mild peroneal tenosynovitis.[41]
• 34. On 4 September 2022 Dr Donato Curtotti, the applicant's then general practitioner, referred the applicant once again to Dr Kulisiewicz, who saw him on 6 October 2022. Dr Kulisiewicz noted that the ankle was normal in most respects, with the tendons not subluxed on the MRI and minimal fluid in the sheath, but that the joint appeared to be dynamically unstable.[42] Notes by the applicant's podiatrist, Mr Allan Donnelly, dated 11 October 2022, when he first saw the applicant, recorded the history of the right ankle and discussed the possibility that peroneal subluxation was occurring when a lot of pressure "in take-off mode" was applied to the right foot during sport. Mr Donnelly, following a suggestion by Dr Kulisiewicz, decided to obtain ultrasound imaging, noting also that if conservative therapy did not succeed, surgery would need to be considered.[43] On 17 October 2022, the applicant had ultrasound imaging of the ankle. The sonographer, Dr Nimali Silva, noted the normal features of the ankle, but also commented that there was "partial rupture to the superior peroneal retinaculum with partial subluxation of the peroneal longus during dynamic assessment".[44] The applicant was reviewed on Dr Kulisiewicz's behalf by Dr Lauren O'Rourke, a Senior Registrar/Fellow at TCH, on 22 November 2022. Dr O'Rourke noted the outcome of the ultrasound, and the continued conservative therapy, and commented that if symptoms persisted over the next 6-12 months, there could be further discussion about surgical options.[45] Mr Donnelly saw the applicant again on 28 November 2022 and in his notes recorded that the applicant was very compliant with his prescribed exercise regime and reported less subluxation, but also noted the tear in the retinaculum identified in the ultrasound. He stated that Dr Kulisiewicz was happy for conservative therapy to continue "and is not keen on any surgery at this stage".[46]
• 35. The applicant reports that during December 2022, while on holiday, he was "highly active", undertaking a range of activities, such as running (including on sand), lifting weights, beach swimming, surfing and a mountain bike loop of 45 km.[47] During January, before the accident, he rode his bicycle to and from work each working day (14 km each way) at an average speed of 21 km/hr.[48] The applicant says that his ankle continued to improve and during January 2023 his ankle was subluxing only 0-2 times each day.[49]
• 36. The accident that is the focus of this matter occurred on 25 January 2023. The applicant was taken to TCH, and there is an extensive report by Emergency Department and related personnel.[50] The report is mainly concerned with the applicant's spine and neurological state. He had CT imaging of his chest and lumbar spine, was examined and monitored over several hours, prescribed medication (mainly analgesics) and discharged. Apart from the spine, the only other injuries noted were abrasion to the left shoulder and knee. In the course of his time at TCH he was subject to careful examination, focused on his spine and neurological state, but extending to other parts of the body.
• 37. Further reporting on the ankle occurred after the accident, on 15 February 2023, about three weeks after the accident, Mr Gavin Malouf, a physiotherapist, provided a report to Dr Curtotti, regarding treatment of the applicant for both the thoracic spine injury and the right ankle. Mr Malouf suggested the possibility of "an underlying ligament instability" in the right ankle, noting that until that instability was addressed surgically, the applicant would continue to suffer from tendon inflammation. He suggested further surgical assessment.[51]
• 38. On 22 February 2023, about four weeks after the accident, Dr Curtotti referred the applicant to Professor Martin Sullivan, an orthopaedic specialist and surgeon. The reason for the referral was given as "Chronic wobbly right ankle, chronic intermittent pain in the right ankle, post surgery".[52] The referral gave the history that four months previously the applicant had injured his right ankle playing squash, feeling "a pop" and had a week later, after recovering, further injured the same ankle playing oztag (also referred to as "Austag"), again feeling "a pop". Subsequently there had been clicking in his ankle, but an MRI had not revealed any injury; the clicking had not gone away despite 6-7 physiotherapy sessions. On examination, Dr Curtotti had noted clicking in the ankle, but the ankle had been stable to testing.
• 39. Professor Sullivan saw the applicant on 21 March 2023. He noted that the applicant had subluxing peroneal tendons; and that he had torn the peroneal retinaculum "and it has been over nine months with no resolution".[53] Professor Sullivan stated that the applicant would need surgery as he was at risk of tearing the peroneal tendon.
• 40. On 14 April 2023 Mr Malouf sent a report to the respondent providing responses to a set of questions focused on the applicant's capacity to return to work. The responses were mainly about the applicant's back injury, but in response to one question about the applicant's treatment regime, Mr Malouf commented that the applicant "also aggravated a right ankle problem in the accident".[54]
• 41. The applicant's problems with subluxation worsened considerably during the second quarter of 2023. He had a further MRI of his right ankle on 14 April 2023.[55] The reason for having the imaging was given as "peroneal subluxation" but the radiologist's report identifies no issues, concluding "No features of peroneal tendinopathy or tenosynovitis. No subluxation." Despite the absence of visible injury on the MRI, on 21 April 2023, Dr Kulisiewicz wrote an open letter stating that the applicant "has a left ankle problem following an injury whilst he was involved in a pushbike accident and hit by a car"[56] and that the applicant "developed severe recurrence of his symptoms following the injury". Dr Kulisiewicz foreshadowed surgery (it is clear that the reference should be to a right rather than left ankle injury, and this was subsequently clarified by the respondent[57]).
• 42. In letters to the respondent dated 9 May and 6 and 10 June 2023, the applicant spoke of his worsening symptoms and the need for him to have the matter surgically addressed, with the urgency increasing as time went on.[58] At this time, the respondent was unwilling to accept liability for the ankle, although it appears no final decision had been made at that point.[59] The applicant had surgery on 20 June 2023. Dr Sullivan reported that he had deepened the groove in the fibula, anchored the retinaculum where it had torn away from the distal fibula, and repaired the retinaculum.[60]
• 43. On 27 July 2023, the respondent sent the applicant to Dr Raymond Wallace, an independent medical examiner (IME). Dr Wallace saw the applicant on 17 August and submitted a report to the respondent on 21 August 2023.[61] The report deals with both the spinal injury and the right ankle. Dr Wallace noted that the applicant reported a worsening of his ankle while in Adelaide during March 2023 when walking on the beach.[62] His conclusion regarding causation of the applicant's right ankle condition was that "There is no objective medical evidence that Mr Montgomery suffered any significant injury at his right ankle as a result of the index motor vehicle accident."[63] The evidence that Dr Wallace quoted in support of that conclusion was first, that the applicant reported no pain from his ankle on the day of the accident on reception at the hospital; second that the ultrasound of 19 October 2022 identified a partial rupture to the peroneal retinaculum, with partial subluxation of the peroneus longus on dynamic assessment; and third, that the activities undertaken in May 2022 - squash and oztag - were the source of the recurrence of the ankle injury. The respondent denied liability for the right ankle injury on 29 August 2023.[64] The applicant asked for an internal review,[65] and a dispute resolution consultant from the respondent, Mr Joseph Wong, completed the internal review on 21 September 2023.[66] Mr Wong confirmed the respondent's denial of liability for the right ankle injury.
• 44. On 7 September 2023, Mr Paul Imhoff, a physiotherapist, wrote an open letter recounting the history of the applicant's right ankle injury during June-August 2022. Mr Imhoff noted the success of conservative therapy over that period and commented that it was to be expected that "the ankle would have continued to improve after completion with physiotherapy".[67]
• 45. The supplementary papers admitted under subsection 197(3) of the MAI Act allow the consideration of limited additional evidence. Professor Sullivan wrote an open letter on 20 November 2023, stating that it was unremarkable that the applicant had not reported any problems with his ankle on the day of the accident; that in "high energy injuries" especially, there can be delayed presentation of injuries to the foot and ankle. Professor Sullivan recounted the referral of the applicant to him in April 2023, noting that fairly urgent intervention was needed as the peroneal retinaculum was torn. Professor Sullivan concluded that "It is possible that the bike accident on 21 January 2023 exacerbated his symptoms".[68] His later revision of the letter made no change except to replace the final sentence with another, reading "It is more probable than not that the bike accident on 21 January 2023 exacerbated his symptoms".[69]

1. The only substantial material admitted from Dr Wallace's supplementary report was a sentence noting that in a medical report of 20 February 2023 Dr Curtotti did not mention that the ankle injury was sustained in the accident.
2. Also admitted was some material from the applicant relating to the impact on his ankle of the cleats he uses on his bike pedals. In an evidentiary sense, all that the additional material provides is that the applicant was using the cleats when the accident occurred. The impact of using the cleats on his ankle in the accident is more a matter for submissions.

1. The applicant made two written submissions, dated 10 January 2024 and 26 April 2024. There is also material in the nature of submissions in his witness statement dated 15 December 2023 and a submission was received on 2 April 2024 arguing that Dr Wallace's second report should not be admitted.
2. The applicant put a consistent line in all of these submissions and in oral submissions at the hearing. He pointed out the history of the injured right ankle - initially injured in 2017, surgically treated and then incident-free until June 2022, when the injury reappeared. The ankle went through a steady recovery over the period from June 2022 to the date of the accident. During December 2022, he undertook a good deal of strenuous physical exercise and in January 2023 he rode to and from work at significant speeds. Following the accident, he was at first less active because he was recovering from the trauma of the accident; but when he became more active, he realised that the ankle was markedly worse. The accident was the only possible cause. The doctors and allied health professionals who were treating him over the period June 2022 to January 2023 all agreed that surgery was not recommended; then in March 2023, it was clear that surgery would be needed to prevent more severe injury. Once again, the accident was the only intervening event that could explain this change. The applicant stated that he became aware of the worsening of his ankle in March 2023, perhaps six weeks after the accident, when he became more active, and he attributed the worsening to the accident from that time. Once surgery became necessary, the applicant's doctors - Dr Kulisiewicz and Professor Sullivan - all treated the injury as having arisen from the motor accident.
3. Thus, the applicant noted that all of his treating practitioners agreed that the accident exacerbated his previously injured right ankle. It was only Dr Wallace who took the view that the ankle injury was not worsened by the accident. I understand the applicant to be arguing that Dr Wallace's report was an outlier, to the point that I should regard him as a doctor whose conclusions were in the teeth of the evidence, so much so that it was therefore not open to the internal reviewer to base his decision to deny liability on Dr Wallace's report.
4. The applicant has also raised points best understood as assertions either that the respondent failed in some respect to accord him procedural fairness, or that the respondent failed to meet the requirement in section 20 of the MAI Act to act in good faith when dealing with his claim. The essence of this part of the submissions relates to what the applicant presents as bias:

(a) on the part of the respondent by providing incomplete and inaccurate information in tasking Dr Wallace and Professor Sullivan to prepare reports addressing the question of causation, and in not following up or pursuing the applicant's doctors and allied health professionals for further information;

(b) on the part of Dr Wallace in preparing his report, given his limited knowledge of the matter and cursory engagement with the applicant; and

(c) on the part of the internal reviewer in dealing with the claim, especially by relying so heavily on Dr Wallace's report, which the applicant described as "cherry-picking" the evidence - that is, selecting the evidence that favoured the respondent.

1. The respondent made three submissions, dated 22 December 2023, 17 April 2024 and 29 April 2024.
2. The first of the respondent's submissions deals with the issue of causation, that is, whether the exacerbation was an injury sustained in the accident, as if it was not, then the respondent is not liable for expenses associated with treatment and care. The respondent points to the history of the ankle injury in the second half of 2022, the slowness of the applicant's doctors to attribute the worsening condition of his ankle to the accident, during February-May 2023, and the opinion in the report of Dr Wallace that the condition of the ankle was a progression of the existing ankle injury identified during 2022.
3. The respondent's second submission considers whether the internal review decision could be regarded as unlawful for procedural reasons, addressing in turn the adequacy of the internal reviewer's reasons given for the rejection of the applicant's claim, whether the legal test applied in the internal review is aligned with the MAI Act, whether the review afforded the applicant procedural fairness, and whether the internal reviewer took into account information that was irrelevant. On all four issues, the submission contends, the respondent met the relevant test, whether set by the statute or common law.
4. In its final submission, the respondent contests some of the applicant's arguments, mainly with regard to the internal review procedure.

1. Decision-making about treatment and care for a person injured in a motor accident under the MAI Act is reasonably straightforward. Under section 112, a person so injured is entitled to treatment and care benefits, including treatment and care expenses (subject to certain exclusions not presently relevant). Under section 113, treatment and care expenses exclude expenses for treatment and care that was not "reasonable and necessary", or that relates to an injury that was not sustained in the accident. Section 120 provides a set of criteria to decide what kinds of treatment and care are reasonable and necessary.
2. The respondent's first submission spends some time elaborating on the question of whether treatment and care of the applicant in respect of his ankle was reasonable and necessary; the applicant, possibly in response, also raised some issues on this aspect of the case in his first submission. But in my view in the present instance that question only arises if it is accepted that the exacerbation of the ankle injury was sustained in the accident. If the exacerbation was not so sustained, treatment and care expenses are excluded by section 113(b)(ii) of the MAI Act, and the question of what treatment and care is reasonable and necessary does not arise. If, by the present external review process or some other pathway, it were to be accepted that the ankle exacerbation was indeed sustained in the accident, then a separate question would arise regarding what parts of the claim put forward by the applicant would meet the treatment and care criteria in section 120 of the MAI Act. That has not been the focus of this case; no evidence on that issue has come forward and little argument was put on the issue at the hearing. Indeed, the respondent explicitly acknowledged that what might be paid out to the applicant if the argument that the exacerbation of the ankle injury was sustained in the accident was accepted was a question for another time.
3. A great deal in this matter is common ground between the parties. It is not in dispute that the applicant's spinal injury was caused by the accident, nor that he suffered significant impacts on his mental health. What is at issue is whether the accident exacerbated his existing right ankle injury. The applicant's ankle worsened during 2023; the question is whether the accident caused, or contributed to, that worsening.
4. There are plainly two case theories being advanced in this matter. The applicant is contending that although the right ankle was indeed re-injured in May 2022, the injury was treated conservatively and was improving. The frequency of subluxation decreased, and the ankle showed every sign of returning to the state it had been in prior to May 2022. Then the accident occurred; once the applicant had made a partial recovery, and had reduced his use of analgesics, and he became more active, he found that on uneven ground or sand the frequency of subluxation had increased very markedly. His doctors - Dr Kulisiewicz and Professor Sullivan - now considered surgery a necessity. The only rational explanation for the change is that the accident had exacerbated the ankle injury.
5. The respondent contends that the conservative therapy used to treat the applicant's ankle in the second half of 2022 was always undertaken as an alternative to surgery, and with the possibility of surgery always present. It is the respondent's case theory that the tear in the peroneal retinaculum identified in October 2022 was an indication that the ankle had worsened, making the need for surgery more rather than less likely. What then occurred, over the next few months, was that despite the best efforts of the applicant and his treating doctors and allied health professionals, the ankle failed to heal satisfactorily, and surgery became necessary. The accident made no contribution to that process.
6. In a merits review context these two case theories would have been tested in the hearing, with doctors called to give evidence and subject to cross-examination. In all probability, additional reports would have been obtained. But in the kind of review called for by the MAI Act, the question is not which case theory should be preferred, but rather whether the case theory advocated by the respondent and adopted by the internal reviewer, Mr Wong, is tenable, in the context of the available evidence, including that additionally admitted.

• 62. Clearly in assessing the extent to which the respondent's conclusion is tenable the ultrasound of October 2022 is centrally important. This was the first time after the reappearance of the ankle injury that a detectable defect potentially requiring surgery had been identified; the MRI taken in June 2022 showed oedema, which was inferred to be the result of some kind of impact, but no further injury.[70] One could not say that in October 2022 the sonographer was emphatic about the existence of the tear in the peroneal retinaculum, as he stated "There does appear to be partial rupture to the superior peroneal retinaculum ..."; but he confirmed his impression by subjecting the ankle to dynamic assessment, noting displacement of the peroneal longus and/or partial subluxation.[71] And every doctor and allied health professional who saw the applicant over the next couple of months treated the torn retinaculum as having been established.
• 63. The ultrasound was not the only indication that the ankle injury might need more than physiotherapy at some stage. When Dr Kulisiewicz saw the applicant on 6 October 2022, he noticed that the ankle was dynamically unstable;[72] when Mr Donnelly saw the applicant on 11 October he was sufficiently troubled by the subluxation - either actual or potential - that he ordered the ultrasound;[73] when Dr O'Rourke saw the applicant at TCH a month later, on 22 November, she noted the partial tear in the peroneal retinaculum, reviewed the case with Dr Kulisiewicz, and arrived at the plan to continue conservative therapy, but "If symptoms persist over next 6-12 months, can return for further discussion re surgical options";[74] and when Dr Donnelly saw the applicant on 28 November, he reported that Dr Kulisiewicz was happy with the applicant's progress and was "not keen on surgery at this stage" (emphasis added).[75]

1. In the above summary, I have highlighted those elements in the record that demonstrate consistency with the respondent's case theory, since the question before me is whether the internal review decision was correctly taken - correctly not in the sense that the outcome was necessarily to be preferred, but rather that the facts related to the ankle were correctly and lawfully found. It seems to me that what the above summary illustrates is that there were signals throughout this period that the need for surgical intervention was always an open issue. Dr Kulisiewicz appears to have been repeating the pattern he followed when the ankle was first injured in 2017: to seek to treat the injury conservatively in the first instance, but to keep in reserve the possibility of surgery should the conservative treatment prove inadequate. I therefore find it difficult to accept the applicant's assertion that Dr Wallace was at odds with all the applicant's treating doctors when he attributed the need for surgery to the existing injury before the accident; so far as I can see, Dr Wallace was reading the signs from the medical record, especially the ultrasound from October 2022, but also the reappearance of the ankle injury in May 2022, drawing a conclusion which, while not the only conclusion available, was nevertheless open to him. But it is clear to me Dr Wallace's opinion was not so different from that of Dr Kulisiewicz, who was keeping the surgical option in reserve throughout this period.
2. It is part of the applicant's case that Dr Wallace's opinion should be discounted, and that I should prefer the evidence of the applicant's treating doctors. It is indeed the case that treating doctors have some advantages: they have continued contact with the patient over a period of time and their notes and records are contemporaneous with the period in which the accident occurred. But their limited engagement with legal processes may leave them at a disadvantage, in that they may apply the wrong test or ask the wrong question, from a legal point of view; and they may have developed a relationship of loyalty with a patient that makes it more difficult to be objective. Medico-legal experts, on the other hand, while typically distant, can have the advantage of greater objectivity and a familiarity with what is expected in a legal context. These issues are explored in the case law.[76] The applicant was critical of Dr Wallace, who he thought gave him too brief an examination and paid too little attention to the history he recounted. It is very common for applicants to form negative views of IMEs. IMEs are not treating doctors, they have no incentive to engage personally with those that they examine, and they frequently rely almost entirely on written reports.
3. The applicant's criticisms are of limited relevance to my inquiry. In the first place, the MAI Treatment and Care Guidelines actively encourage the use of IMEs. Clause 3.2.2 states that a medical assessment of an applicant's injuries should generally not be done by treating doctors, in order to ensure independent and impartial assessment. In terms of Dr Wallace's report, as with all the other medical material, the relevant question is whether it was logical, professional, well-reasoned and made proper use of the available evidence. The report passes that test, but in the event it is not that report that I have found most telling; what is telling is the continuing ambivalence of the applicant's treating doctors and allied health professionals about whether the applicant would need a surgical resolution to his ankle problem.
4. Dr Wallace was not only influenced by the evidence of the tear in the peroneal retinaculum; he also noted the absence of "objective evidence" for the alternative theory being put forward by the applicant. While he did not elaborate on this point, there are some aspects of the applicant's case theory worth attention from this perspective. To some extent the discontinuity between an improving and healing ankle over the period November 2022 - January 2023 and a worsening ankle following the accident depends on the applicant's personal perception of how he was doing. That said, it seems incontrovertible that the ankle was worsening during March-April 2023, given that both Dr Kulisiewicz and Professor Sullivan found surgical intervention to be necessary; but there is no evidence beyond the subjective statements of the applicant that could tie the worsening definitively to the accident. As discussed below, there are good reasons why the applicant might not have reported pain or other symptoms from his ankle at the time of the accident, but it would certainly have assisted his case if there had been some immediate evidence that could have tied the two together.

• 68. Dr Wallace notes the absence of any report of pain from the ankle in the hospital report from the day of the accident, and this point was emphasised by the respondent during submissions. Professor Sullivan put a contrary view, noting that in "high energy accidents" symptoms in lower limbs often have a delayed presentation. At the hearing the respondent pointed to the careful and thorough examination undertaken at TCH on the day of the accident, which, in the respondent's submission, would have been expected to reveal any injuries, apart from the spine, that might otherwise have been overlooked. I am not persuaded on this point. I can see no evidence that the TCH Emergency Department personnel paid any attention to the applicant's upper or lower limbs, beyond assuring themselves that the applicant still had the use of all of them; their focus, as one might expect, was on the spine and on the possibility of neurological consequences of the accident. Further, as the applicant notes in his witness statement, the injury to his ankle was not one that caused him a lot of pain; rather, it caused discomfort when he was active. It would therefore be logical to think that if an exacerbation had indeed occurred in the accident, it would become apparent once he was on his feet again and reasonably active - which is what seems to have occurred. Further, given the spinal injury that was the focus of attention on the day of the accident, I doubt that the applicant was allowed to spend any time on his feet, and I note too that he was given powerful pain relief (fentanyl, oxycodone), which might have masked minor pain from elsewhere in his body. In his application for defined benefits the applicant listed his injuries as including "Serious bruising and muscle pain throughout my entire body",[77] in which condition it might not be a surprise that a worsening of the ankle could be overlooked or less than obvious.

1. The applicant laid some emphasis on his use of cleats on the pedals of his bicycle. As I understand it, the cleats hold the feet to the pedals, enabling a more forceful and uninterrupted application of muscular effort in pedalling. It was the applicant's contention that the cleats made it more difficult for his feet to escape the pedals during the collision, and consequently more likely that the accident contributed to the worsening of the ankle. The applicant's argument is entirely plausible, but it does not rise beyond that. The effect of the cleats is a matter of speculation without either material evidence of the effect of the cleats or expert opinion evidence.

• 70. But it is not as if the record, including the later entries after the accident, is completely at odds with the respondent's reading of the matter. The applicant saw his physiotherapist for the first time after the accident on 15 February 2023, and the notes for that consultation record the accident, and then list, separately, "also ongoing issues with R ankle" and "ongoing pain and instability, agg 3/12 ago hiking".[78] There is no reference here to the accident as a causal factor of the ankle problem, and this appears to be the only reference to a hiking incident in or around October or November 2022. Apart from anything else, if there had been a hiking incident, that is another potential cause of a worsening of the injury. Dr Curtotti's referral to Professor Sullivan occurred on 22 February 2023, with a reference to a "chronic wobbly right ankle". If renewed symptoms only became apparent in March 2023, when the applicant travelled to Adelaide, why did Dr Curtotti feel a need for a surgical referral in February?
• 71. Mr Imhoff's open letter[79] adds little to the applicant's case. Mr Imhoff wrote the letter about a year after last seeing the applicant, and in it he expressed the opinion that the ankle would have been expected to heal from that point. But clearly other events intervened; the ultrasound in October 2022 showed a tear in the peroneal retinaculum and the course of the ankle injury proceeded from there. Mr Imhoff's opinion, formed at an earlier time, has no bearing on whether the internal reviewer, a year later, followed a satisfactory fact-finding process.

1. Mr Wong's internal review considered a body of relevant evidence and noted that there were conflicting views about whether or not the accident contributed to the exacerbation. The evidence he relied on was first, the ultrasound of October 2022 (there is a reference here and later in the review to the right knee rather than ankle - it is accepted by the parties that this is a simple error); second, the absence of any mention of ankle pain at TCH on the day of the accident - an issue on which I have commented above; third, a delay in the attribution by Dr Curtotti of the ankle exacerbation to the accident; and fourth, the opinion of Dr Wallace, which Mr Wong said he preferred.

• 73. Mr Wong's review makes some accurate points regarding how slowly Dr Curtotti came to accept the applicant's view about causation. In his referral to Dr Kulisiewicz dated 22 February 2023 Dr Curtotti referred to "Chronic wobbly right ankle, chronic intermittent pain in the right ankle, post surgery", with no mention of any contribution by the accident;[80] and he wrote a medical report on 20 February 2023,[81] and a fitness for work form on 19 April 2023[82] without mentioning the ankle. I would note, however, that the applicant says that he was not aware of the worsening of the ankle until March 2023, so the first two of these might be regarded as less than persuasive for that reason. It is certainly the case that when listing injuries related to the accident on the fitness for work certificate of 19 April 2023, Dr Curtotti lists only the spinal fracture and the psychological consequences; but in his referral of the applicant to Dr Kulisiewicz, dated 22 March 2023, Dr Curtotti noted that the applicant reported his ankle as "much worse" since the accident. Ultimately, I am not sure that a great deal can be taken from Dr Curtotti's comments; it looks to me as if he was slow to form a view about the contribution of the accident to the worsening ankle, and perhaps did not turn his mind to the question until pressed to do so.

1. Mr Wong's review, in the end, relies on the report of Dr Wallace, the only IME report that was obtained. Dr Wallace's report, in turn, relies heavily on the ultrasound from October 2022. The evidence subsequently admitted, in my view, adds little to what was already there. Dr Wallace's supplementary report contained no assessment of new material except for one sentence noting Dr Curtotti's report of 20 February 2023, on which I have commented above. Professor Sullivan's revised letter, which was received on 25 January 2024, is identical to the letter of 20 November 2023 (indeed it has the same date), except that the last sentenced is amended to state that "It is more probable than not that the bike accident on 21 January 2023 exacerbated his symptoms". It seems that Professor Sullivan in this letter attempted to amend or correct his earlier letter, but he gives no explanation or justification for the change, and he does not call up earlier reports or provide a chain of reasoning to explain or support his conclusion. The letter - in either version - has limited comment from which any conclusion can be drawn.

• 75. There is no doubt that Professor Sullivan is an expert in his field. Although he has not produced a medical report of the kind written by Dr Wallace, nor has he acknowledged the Expert Witness Code of Conduct and agreed to be bound by it, he has had close engagement with the applicant's ankle injury, and his opinion is not to be lightly put to one side. But the final sentence of his letter - in either version - presents challenges as evidence. In Makita (Australia) Pty Ltd v Sprowles[83] (Makita), Heydon J explored the requirements that expert opinion must meet in order to be admitted as evidence by a court. One of his conclusions was that "... an expert witness must 'explain the basis of theory or experience' upon which the conclusions stated are supposed to rest, for, as Sir Owen Dixon said in an extra-judicial address ... 'Courts cannot be expected to act upon opinions the basis of which is unexplained'".[84] That view has been endorsed in subsequent cases, including by the High Court: "... the evidence must state the criteria necessary to enable the trier of fact to evaluate that the expert's conclusions are valid";[85] "... the inference drawn by the expert which constitutes the opinion [must] be supported by reasoning on the part of the expert sufficient to demonstrate that the opinion is the product of the application of the specialised knowledge of the expert to facts which the expert has observed or assumed."[86]
• 76. The authorities in this area deal at length with differences between what might be admissible at common law and under the Uniform Evidence Act.[87] These distinctions are of less importance to this tribunal, which is not bound by the rules of evidence. But, regardless of these distinctions, the authorities point to the care that must be exercised in arriving at a position of reliance on the opinion of an expert in a specialised field. I cannot read Professor Sullivan's letter as a set of reasons that lead into and explain the final sentence of his letter (in either version); and no explanation whatsoever has been offered for the amendment of the final sentence in the later version. I do not think any weight can be put on Professor Sullivan's letter, with the exception of the reference to the avulsion of the retinaculum from the distal fibula, discussed below.

1. Taking into account the evidence available at the time of the internal review, I do not think I could conclude that the respondent's case theory was untenable. The main elements in the thread supporting the respondent's case theory include:

(a) the re-injury of the ankle in May-June 2022, with squash, oztag and skiing all apparently contributing;

(b) the ultrasound of 19 October 2022, identifying a tear in the peroneal retinaculum;

(c) the comments of Dr Kulisiewicz, Mr Donnelly and Dr O'Rourke during October-November 2022, debating whether the ankle would recover under conservative treatment, and leaving open the surgical option if it did not; and

(d) the referral by Dr Curtotti to Professor Sullivan on 22 February 2023, which can be seen as a recognition that a surgical solution might be necessary or preferred, well before the applicant began reporting more severe symptoms in the next month.

1. As noted earlier, this was not the only available line of reasoning, and not necessarily the preferred line; but in my view, in light of all the evidence, it was a line that was open and tenable. The internal reviewer considered the competing claims, assessed the evidence, and arrived at a conclusion by a satisfactory fact-finding process. It was not an error of law or fact for the internal reviewer to conclude that the exacerbation of the ankle was not a personal injury sustained in the accident, and that therefore the respondent was not liable to pay treatment and care expenses in respect of the ankle.

• 79. There are one or two anomalies in the evidence, one of which stands in the way of the conclusion outlined above. The first anomaly is that the MRI of 14 April 2023[88] reports no significant abnormality. The only departure from normality is that two ligaments (the ATFL and CFL, apparently the anterior talofibular ligament and the calcaneal fibular ligament) were thin "but intact in keeping with previous partial tear". It was only a week later that Dr Kulisiewicz referred the applicant for surgery, and it is not clear why no injury at all was identified by the radiologist a week beforehand. No comment on this has been made by any of the medical personnel involved in this case, and it may be simply a result of the way that different kinds of imaging are better at revealing different kinds of injury.
• 80. The other anomaly is the reference to the avulsion of the superior peroneal retinaculum from the distal fibula (i.e. the tearing away of the retinaculum from the base of the fibula). In his letter of 20 November 2023[89] Professor Sullivan included two separate paragraphs of one sentence each, as follows:

The ultrasound from 19 October 2022 showed partial subluxation of the peroneal tendon.

At surgery the superior peroneal retinaculum was avulsed from the distal fibula.

1. These two statements appear to say that Professor Sullivan was aware of the partial tear and subluxation before surgery, but discovered the avulsion only after making the incision in the ankle. If that is so, how and when did the avulsion occur? I can see three possible answers: that the avulsion was part of the injury from late 2022, but had perhaps occurred after the ultrasound taken in October, and was not visible or not detected - like the torn retinaculum - in the MRI of 14 April 2023; that it was a separate injury which occurred in the accident (or otherwise through some separate incident), once again being invisible or not detected on the April 2023 MRI; or that it occurred after the accident, as the ankle generally worsened (for whatever reason) with more frequent subluxation, the avulsion then being a sequela of the torn retinaculum, possibly occurring only after the April MRI. No-one has addressed this question either in the papers or in the hearing, and the evidence does not allow me to make a finding.
2. The two sentences in Professor Wallace's letter only became available after the Tribunal admitted the letter as additional evidence, at the applicant's request, in December 2023. The avulsion is referred to in passing in Professor Sullivan's operation report but the sense of the avulsion being a surprise is not conveyed. None of the medical experts involved appear to have considered whether the avulsion might be a separate injury, or a consequence of the existing injury. This means that all decision-making up to this point has paid no attention to the avulsion, when it is likely to have occurred, or its aetiology. It will be apparent that expert opinion on the energy required to bring about the avulsion could be important in reaching a conclusion as to its causation.
3. Professor Sullivan's statement regarding the avulsion is now before me, but without any expert comment on its significance or on whether it has any implications at all for the ultimate question of causation at the heart of this case. I will accordingly make orders remitting the matter to the respondent for the re-evaluation of causation, taking account of the opinions of relevant medical experts on the avulsion, its timing and its aetiology (including, of course, the opinion of Professor Sullivan, to ensure that I have not misread his letter). The respondent may wish to consider the possibility and appropriateness of revisiting the imaging from October 2022 and April 2023.

Consideration: compliance of the claim process with the Act and Guidelines and with procedural fairness

• 84. The MAI Act was established to provide a simpler, cheaper and more effective motor accident insurance framework for the ACT. The objects of the MAI Act, set out in section 6, include improving the lot of those who suffer motor accident injuries;[90] creating a scheme that is manageable, efficient and affordable for people affected by it;[91] and keeping premiums at a reasonable level.[92] Section 20 of the MAI Act imposes a duty of good faith on insurers, applicants for declined benefits and claimants; the content of that duty is spelt out in a non-exhaustive set of obligations, focused in particular on the free flow of information between applicants and claimants on one hand and insurers on the other.

1. The applicant plainly feels that his experience with the MAI Act and its processes has been anything but pleasant, and he appears deeply resentful of his treatment by the respondent. That, in itself, cannot be a surprise; any claimant whose claim is rejected by an insurer is likely to share that reaction to some degree. But Mr Montgomery has levelled some particular allegations against the respondent, as outlined earlier in summarising the parties' submissions. In particular, he sees the decision-making process as affected by bias: in his contention the insurer is in a position to tailor the process to deliver the outcome that is in its interests, and that is what has happened here. The applicant levels accusations against the communication with the doctors - seeking information from Professor Sullivan and tasking Dr Wallace; against Dr Wallace for his report; and against Mr Wong, the internal reviewer. The applicant also takes the respondent to task over a failure to chase up his treating doctors - Dr Kulisiewicz and Professor Sullivan - after asking for their expert opinions on relevant questions but receiving no response.
2. On 13 June 2023 the respondent sent an email to Professor Sullivan, who had asked the insurer to pay for the surgical repair of the applicant's ankle. The respondent asked a series of questions in the email, relating to Professor Sullivan's treatment of the applicant and to causation of the ankle injury, as follows:
   1. When did you first see Mr Montgomery in relation to his right ankle problem?
   2. Could you please describe the mechanism of injury in the accident to cause the Right ankle injury?
   3. What is the link between the Motor Vehicle Accident on 25/01/23 and the injury Mr Montgomery has today?
   4. Is it possible that Mr Montgomery has congenital peroneal subluxation which has predisposed him to this type of injury?
3. The applicant draws attention to two sentences in the introductory part of this letter leading up to the above questions: the email states that the applicant "was pursuing surgical repair from Dr Kulisiewicz at the time of the motor vehicle accident"; and that "Until 4 months after his accident (25/1/23) there was no mention of any problem with his Right ankle". The applicant describes both of these sentences as "untrue". It seems to me that the first of the above sentences is clearly inaccurate: so far as the available evidence discloses, at the time of the accident the applicant was still working on a conservative treatment regime. Dr Kulisiewicz may have been contemplating changing that regime, but nothing suggests that the applicant was "pursuing" change. The second sentence identified by the applicant raises some arguable points about timing, but the objection I have to the sentence is that it seems entirely unnecessary in the context of the four questions being put to Professor Sullivan. Looking at the inclusion of these two sentences, it does seem that the letter has been crafted to encourage a particular answer or kind of answer, and in that respect it is biased. I also wonder about the fourth of the questions put to Professor Sullivan, quoted above: surely this is a leading question, trying to plant a hypothesis favourable to the respondent in Professor Sullivan's mind.
4. Professor Sullivan did not respond to the respondent's letter, and perhaps no harm was done by it to the applicant's case, but it certainly does not encourage a belief that the respondent was going about assessing the applicant's claim with the objectivity and fair-mindedness that the MAI Act seems to expect. The specific directions regarding good faith set out in section 20 of the MAI Act do not cover the way communication of this kind (between insurers and doctors) should be done, but those directions are non-exhaustive, and careful communication with treating doctors, so that a claimant's case is not compromised, would seem to be expected, given the general tenor of section 20. In my view, an insurer has a duty under that section to deal fairly and in an unbiased way with the medical professionals from whom it seeks expert opinion. I do not think that in this respect the respondent behaved as it should have.
5. The argument about how Dr Wallace was tasked is to me less persuasive. The applicant notes that Dr Wallace was tasked with assessing "Right ankle subluxing tendon pain" but that he in fact addressed the injuries to the applicant's back as much as the ankle. While that may be the case, it does not follow that Dr Wallace accordingly failed to give the ankle the attention required to form an opinion. The applicant also notes that no detail was given to Dr Wallace about the speed at which the accident occurred or the use of cleats on the pedals of the bicycle, but the applicant goes on to note that he explained these points to Dr Wallace at the examination.
6. I do not accept the suggestions that I should find Dr Wallace to have been biased. Dr Wallace's report uses the available evidence and reaches a conclusion by a logical pathway; and I do not accept that his reading of the evidence is so different from that of the treating doctors, as explored earlier in this decision.
7. The internal review undertaken by the insurer has also come under attack by the applicant. Division 2.10.2 of the MAI Act provides a framework for internal reviews, and the MAI (Internal Review) Guidelines provide some additional guidance. For present purposes the important parts of the Guidelines are part 4.3 (individual conducting the review) and clauses 4.4.1 and 4.4.2 on the conduct of an internal review. Part 4.3 requires an internal reviewer to have the relevant training and skills, and to have been uninvolved in the claim or application prior to the review. I have no evidence to suggest that Mr Wong, the internal reviewer in the present matter, failed to meet those tests, and no submissions have been put to me to that effect. Mr Wong's internal review decision suggests that he holds the skills and training that one would expect in that role.
8. Clause 4.4.1 states that the internal review is to be conducted "in a manner that best supports the main objects of the MAI Act having regard to the personal circumstances and any special needs of an applicant, and the facts and circumstances that gave rise to the application for the review." Clause 4.4.2 deals mainly with the internal procedures of the insurer conducting the review, and the insurer's engagement with the applicant. The paragraph also states that the insurer's internal review procedures "should also ensure that an applicant is not placed at an unfair disadvantage". I am sure that the applicant would feel that this last requirement was not met in his case; but the Guidelines offer very broad and general guidance, and it would be difficult to document a clear failure to comply with Guidelines quite so generally worded. It would not be unusual for an applicant, dealing with a large insurer, to feel at a disadvantage, nor to feel that the disadvantage is unfair; but that level of disadvantage appears unavoidable, and I think that the Guideline expects that a breach would involve a disadvantage that went beyond this unavoidable imbalance and was also objectively unfair. I have not identified any apart from the letter to Professor Sullivan quoted above, and that cannot be laid at the door of the internal reviewer.
9. As I understand it, the applicant is arguing that the internal reviewer relied preferentially on particular evidence - the evidence that allowed him to reach a conclusion favourable to the insurer. For the reasons set out earlier in this decision I do not think that is a fair conclusion. In my view, the line of reasoning adopted by the reviewer, relying heavily, as it did, on the expert opinion of the only IME report that was obtained, was open to him. There was no inconsistency with the MAI Act and the Guidelines, including with section 20 of the Act, and no failure of procedural fairness.

• 94. The applicant considers that after sending letters to his treating doctors[93] the respondent, having not received a reply, should have contacted them and ensured that replies were received and taken into account. I do not agree: it was the respondent's decision whether or not to pursue the issue, after Professor Sullivan and Dr Kulisiewicz had failed to reply to the enquiries made. It would no doubt have been more complete and generally better to have done so, but having made the enquiry I do not think any failure of process arises from not having gone further.

1. Section 20(5) of the MAI Act allows a court or tribunal hearing a dispute between an applicant and an insurer to take into account the duties of the parties under section 20 and make orders in relation to those duties. I do not think I can make orders that would have the effect of undoing the letter to Professor Sullivan that I have found to be biased. But, as noted above, I have made orders remitting the matter for reconsideration in accordance with the MAI Act and its Guidelines. I understand that to mean that in the reconsideration process the good faith requirements of section 20 of the MAI Act will be carefully met, including in the communication with medical experts from whom comment might be sought.
2. The respondent's second submission considers possible failures of procedural fairness and contends that no such failures - such as inadequate reasons put forward by the internal reviewer - occurred. The applicant has not made submissions alleging failures of this kind, and I am not persuaded that any occurred. In any case, some failures of this kind, should they have occurred, will have been cured by this review.

1. There was no error of law or fact in the internal reviewer's decision. But evidence subsequently admitted suggests that one piece of evidence - a potentially critical piece - was not taken into account and has attracted no expert comment or assessment. The matter is accordingly remitted to the insurer to be reconsidered in accordance with the MAI Act and the Guidelines.

[2] [2022] ACAT 24 at [17]- [20]

[3] [2021] ACAT 100 at [94]

[6] Transcript of proceedings, 30 April 2024, pages 25-28

[7] [1987] HCA 25

[8] [1990] HCA 33

[12] ACT Civil and Administrative Tribunal Act 2008 section 79

[14] [2017] ACAT 49 at [18]- [23]

[15] [2021] ACAT 71 at [12]- [23]

[16] [2021] ACAT 129 at [41]- [52]

[17] [2020] ACAT 56 at [11]- [31]

[23] MAI Act section 186 and Schedule 1, Part 1.1

[27] MAI Act section 192 and Schedule 1, Part 1.2

[47] Applicant's submission of 10 January 2024 at [19]

[48] Applicant's submission of 10 January 2024 at [19] and Exhibit A1 at [15]

[49] Applicant's submission of 10 January 2024 at [19] and Exhibit A1 at [16]

[58] I-20, pages 80-1 and I-22, pages 83-4

[59] I-23, page 85; I-24, page 86; I-26, page 90

[76] See for example Kelso and Telstra Corp Ltd [2015] AATA 403 at [40]- [57]

[83] [2001] NSWCA 35

[84] Makita at [60] (citations omitted)

[85] Dasreef Pty Ltd v Hawchar [2011] HCA 21 at [129] (French CJ, Gummow, Hayne, Heydon, Kiefel and Bell JJ) (citations omitted)

[86] Lang v The Queen [2023] HCA 29 at [11] (Kiefel CJ and Gageler J) (citations omitted)

[87] Relevantly, in the ACT, Evidence Act 2011 section 79

[89] I-36, page 125; the two sentences appear in both the original and amended versions