QBE Insurance (Australia) Ltd v Miller

Judgment 1BASTEN JA: On 18 May 2008 Ms Leah Miller (who should be treated as the first respondent) was involved in a motor vehicle accident. She claimed damages from the other driver. The third party insurer, QBE Insurance (Australia) Ltd ("QBE") disputed the degree of her asserted permanent impairment; the dispute was referred to the Motor Accidents Authority of New South Wales ("the Authority") for determination. In February 2010 the medical dispute was referred to assessors for determination. Assessments were separately made of her physical and psychological symptoms. Relevantly for present purposes, a certificate was issued on 15 June 2011 stating that her psychological injuries caused by the accident gave rise to a permanent impairment greater than 10%. 2On 28 July 2011 QBE lodged an application for a further assessment. A party to a medical dispute is entitled to seek a further assessment, in accordance with Pt 3.4 of the Motor Accidents Compensation Act 1999 (NSW), "but only on the grounds of the deterioration of the injury or additional relevant information about the injury": s 62(1)(a). QBE submitted that additional relevant information had become available. While the section refers to a referral "by any party" in sub-s (1), sub-s (1B) requires that the referral to a specified assessor be by the proper officer of the Authority. In the present case, the proper officer refused to make a referral for further assessment. QBE sought to challenge that decision, seeking a quashing order under s 69 of the Supreme Court Act 1970 (NSW). At trial, Rothman J dismissed the application: QBE Insurance (Australia) Ltd v Motor Accidents Authority of New South Wales [2013] NSWSC 549; 63 MVR 470. QBE has appealed. Statutory scheme (a) whether a reviewable decision 3Whether or not the primary judge was correct depends, in part, on the correct approach to judicial review of the decision of the proper officer. That in turn depends on the proper construction of the legislation, having regard to the principles governing judicial review. Because the statutory language is somewhat awkward, it is convenient to set out s 62 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. 4The awkwardness arises from the imposition of new sub-s (1B), providing for referral "to" the proper officer of the Authority, without the express conferral on the officer of any particular power, let alone a statement of criteria by which the power should be exercised. Nevertheless, it has been accepted that the section impliedly confers power on the proper officer to refer the matter to a medical assessor on a ground identified in s 62(1)(a), if the condition set out in sub-s (1A) is satisfied: Rodger v De Gelder [2011] NSWCA 97; 80 NSWLR 594 at [70] (Beazley JA, McColl and Macfarlan JJA agreeing). 5The first question concerns the power of the Court to review the decision of the proper officer to refer, or refuse to refer, a particular application. On the basis that the decision of the proper officer constitutes a gateway, or condition precedent, to the carrying out of a further medical assessment, that decision is reviewable. While the proper officer does not make any recommendation with respect to the merits of the application, the fact that the officer stands between the applicant and a determination of the medical dispute between the applicant and the other party in relation to a civil claim, renders the decision reviewable in the terms explained in The Queen v Collins; Ex parte ACTU-Solo Enterprises Pty Ltd (1976) 50 ALJR 471. A distinction between a report of a Royal Commission which does not affect legal rights directly and a precondition to an exercise of power which does affect legal rights was explained by Stephen J at 473: "The reported conclusions of the Commission no doubt serve to inform the mind of government and may in consequence to a greater or lesser extent be instrumental in shaping the course of future legislative or executive initiatives, but they neither directly determine, or of their own force affect, right. Nor does the reporting of particular conclusions satisfy some condition precedent to the exercise of power which will in turn affect rights or otherwise give rise to legal consequences. The making of the report does not place rights 'in a new jeopardy' or 'subject them to a new hazard', as Kitto J thought was done by the Inspector's reports in Testro Bros Pty Ltd v Tait (1963) 109 CLR 353 at pp 369, 370." 6In the present case the decision of the proper officer does satisfy a condition precedent to the exercise of power which will in turn affect legal rights. Accordingly the decision is reviewable. This view was accepted in Rodger v De Gelder at [70]. (b) content of decision 7The next question was to identify the content of the decision. First, it was necessary for the proper officer to identify the information relied upon by the applicant party. In relation to a medical assessment, that information could have a range of characteristics. It might include a record of symptoms at a time prior to the accident, or a diagnosis of a condition extant prior to the accident. Another aspect of the information might be the mere fact of a particular doctor making a diagnosis or recording a history. These different aspects may be significant in ascertaining whether the information was properly described as "additional", "relevant" and "capable of having a material effect on the outcome of the previous assessment". For example, even information which was available to the previous assessor might constitute "additional" information if the assessor had not accepted it on the basis that the source was unreliable, whereas the new source might be deemed more reliable. 8The trial judge treated each of the characteristics as requiring separate consideration by the proper officer. Thus, he held that the proper officer had rejected certain information as not being "additional", in circumstances where that conclusion was not open. However, he found that there was no vitiating error in the decision of the proper officer, because she had decided that the information was, in any event, not capable of materially affecting the previous assessment, a conclusion which was not tainted by legal error. 9Both parties before the Court accepted, at least for the purposes of their principal arguments, the approach of the primary judge. Thus, QBE submitted that, if the proper officer had concluded (wrongly) that there was no additional information, her conclusion as to materiality must also be flawed. The Attorney accepted both the error identified by the primary judge and the logic of his final conclusion, based upon the need to satisfy each of the separate elements. 10For reasons which will be explained, it is by no means clear that the proper officer approached the exercise in the segmented manner just described. In principle, there was no need for her to do so. While it would be true that information which was not in any relevant respect "additional" to that already considered by the assessor, could not affect the outcome, it did not follow that the proper officer was required to work methodically through the characteristics as if they were each separate and independent of the others. On the contrary, they are clearly interrelated. That which is capable of affecting an outcome must be relevant; further, that which is properly described as "additional" must also be relevant. (c) nature of decision 11A critical issue in the present case is the nature of the review which may be undertaken of the decision of the proper officer. That in turn depends upon the nature of the decision itself. Section 62, as originally enacted, contained only sub-ss (1) and (2). The language of sub-s (1), permitting a matter to be "referred again" echoes the language of s 60 which deals with initial referrals in the following terms: 60 Medical assessment procedures (1) A medical dispute may be referred to the Authority for assessment under this Part by either party to the dispute or by a court or claims assessor. (2) The Authority is to arrange for the dispute to be referred to one or more medical assessors. 12That section envisages referral by a party to the Authority, which then arranges an internal referral to an appropriate medical assessor or assessors. That language was not repeated in s 62, which may have led to the amendments inserting sub-ss (1A) and (1B), said by the Minister to be by way of clarification, by the Motor Accidents Compensation Amendment (Claims and Dispute Resolution) Act 2007 (NSW), Sch 1 [30]. 13That which may be referred for assessment under Pt 3.4 (for the purposes of s 62(1)) is a "medical dispute", identified in s 60(1) and defined to mean "a disagreement or issue to which this Part applies": s 57. Such matters are identified in s 58 in the following terms: 58 Application (1) This Part applies to a disagreement between a claimant and an insurer about any of the following matters (referred to in this Part as medical assessment matters): (a) whether the treatment provided or to be provided to the injured person was or is reasonable and necessary in the circumstances, (b) whether any such treatment relates to the injury caused by the motor accident, (c) (Repealed) (d) whether the degree of permanent impairment of the injured person as a result of the injury caused by the motor accident is greater than 10%. (e) (Repealed) (2) This Part also applies to any issue arising about such a matter in proceedings before a court or in connection with the assessment of a claim by a claims assessor. 14In this case, the relevant matter was whether the degree of permanent impairment exceeded 10%: s 58(1)(d). Unless that figure were exceeded, no damages could be awarded for non-economic loss: s 131. 15Section 62(1) deals separately with a referral by a party and referrals by a court or claims assessor: in the latter case there are no constraints on the circumstances in which a referral for further assessment may be made. In such a case the function of the proper officer, pursuant to sub-s (1B), will be limited to the administrative steps of identifying an available assessor (or assessors) and arranging for the relevant material to be provided to that person or persons. 16Where the application is made by a party, there are alternative grounds available, namely the deterioration of the injury (which in practice will be relied upon by the claimant) or the disclosure of additional relevant information about the injury (which may be relied upon by either party). In both cases, sub-s (1A) imposes an additional requirement, namely that the deterioration or additional information is "such as to be capable of having a material effect on the outcome of the previous assessment". Although that restriction qualifies the right of a party to seek a further assessment, it was common ground that the conditions contained in sub-s (1)(a), as further qualified in sub-s (1A), were to be considered by the proper officer in determining whether or not to refer a matter to an assessor for a further assessment. The critical issue was the proper formulation of the precondition to referral for a further assessment. 17If it is the state of satisfaction of the officer which is the precondition to referral, that satisfaction can be reviewed for relevant legal error. On the other hand, if the precondition is the proper characterisation of the material relied on, then the aggrieved party can invite a judge to determine, in judicial review proceedings, whether or not that precondition is satisfied. It is sometimes said that each of these approaches involves a "jurisdictional fact", a categorisation adopted by Gummow J in Minister for Immigration and Multicultural Affairs v Eshetu [1999] HCA 21; 197 CLR 611 at [130]. However, where the precondition is the state of satisfaction of an officer, the appellation "jurisdictional fact" is misleading. To point up the difference, where the precondition depends on the existence of primary facts, the descriptor of "objective facts" is used, although this merely means that the facts must be established to the satisfaction of the reviewing court, on the evidence before it, regardless of the opinion of the decision-maker: see Timbarra Protection Coalition Inc v Ross Mining NL (1999) 46 NSWLR 55 at 64 (Spigelman CJ); D'Amore v Independent Commission Against Corruption [2013] NSWCA 187; 303 ALR 242 at [241]. 18The correct identification of the precondition depends upon the proper construction of s 62, read in the context of the whole of Pt 3.4 of the Motor Accidents Compensation Act, entitled "Medical Assessment". Section 58 (set out above at [13]) provides that Part 3.4 applies to "a disagreement between a claimant and an insurer" about specified medical assessment matters. 19The consequences and "status" of a medical assessment are provided for in s 61: 61 Status of medical assessments (1) The medical assessor or assessors to whom a medical dispute is referred is or are to give a certificate as to the matters referred for assessment. (2) Any such certificate as to a medical assessment matter is conclusive evidence as to the matters certified in any court proceedings or in any assessment by a claims assessor in respect of the claim concerned. (3) (Repealed) (4) In any court proceedings, the court may (despite anything to the contrary in this section) reject a certificate as to all or any of the matters certified in it, on the grounds of denial of procedural fairness to a party to the proceedings in connection with the issue of the certificate, but only if the court is satisfied that admission of the certificate as to the matter or matters concerned would cause substantial injustice to that party. (5) If a certificate as to any matter is rejected under subsection (4), the court is to refer that matter again for assessment under this Part and adjourn the proceedings until a further certificate is given and admitted in evidence in the proceedings. (6) However, if a certificate as to whether or not the degree of permanent impairment of the injured person is greater than 10% is rejected under subsection (4), the court may, if it considers it appropriate, substitute a determination of the court as to the degree of permanent impairment of the injured person (assessed by the court in accordance with section 133) instead of referring that matter again for assessment under this Part. (7) Except as provided by subsection (6), a court may not substitute its own determination as to any medical assessment matter. (8) This section: (a) does not prevent a court from referring a matter again for assessment under this Part (as provided for by section 62), and (b) does not require a court to refer a matter again for assessment under this Part if the matter is not a medical assessment matter. (9) A certificate is to set out the reasons for any finding by the medical assessor or assessors as to any matter certified in the certificate in respect of which the certificate is conclusive evidence. ... (11) If a medical assessor is satisfied that a certificate under this section contains an obvious error, the medical assessor may issue a replacement certificate to correct the error. 20The resolution of disputes as to "medical assessment matters" is thus conferred upon medical assessors, subject to the limited control of the trial court, as reflected in s 61(4) and (6). It would appear that the power to refer for further medical assessment, not limited to the grounds set out in paragraph (a) of s 62(1), conferred on "a court" by paragraph (b), is intended to complement the provision in s 61(5). (The role of a claims assessor is less clear, although, as recognised in s 58(2), the Part envisages that issues as to medical assessment may require referral by a claims assessor.) 21It is also relevant to note the separate power of "review" provided by s 63. The relevant provisions for present purposes are as follows: 63 Review of medical assessment by review panel (1) A party to a medical dispute may apply to the proper officer of the Authority to refer a medical assessment under this Part by a single medical assessor to a review panel of medical assessors for review. (2) An application for the referral of a medical assessment to a review panel may only be made on the grounds that the assessment was incorrect in a material respect. ... (3) The proper officer of the Authority is to arrange for any such application to be referred to a panel of at least 3 medical assessors, but only if the proper officer is satisfied that there is reasonable cause to suspect that the medical assessment was incorrect in a material respect having regard to the particulars set out in the application. 22Reliance was placed in the course of the hearing on aspects of the Motor Accident Authority Medical Guidelines ("Medical Assessment Guidelines"), which are given statutory force in relation to medical assessments by s 65 in the following terms: 65 MAA monitoring and oversight (1) Medical assessments under this Part are subject to relevant provisions of MAA Medical Guidelines relating to the procedures for the referral of disputes for assessment or review of assessments and the procedure for assessment. 23The Medical Assessment Guidelines state that the proper officer must undertake an "allocation review ... in accordance with Chapter 9": cl 14.3. Chapter 14 further provides that when conducting that review, the proper officer "is to determine whether the application is suitable for referral for further assessment". The Guidelines then direct the proper officer to have regard to certain matters and also give some guidance as to the meaning of "material" in s 62(1A). Further, the Guidelines in Chapter 14 provide: "14.7 If the Proper Officer is not satisfied that the deterioration of the injury or the additional relevant information about the injury would have a material effect on the outcome of the application, the Proper Officer may dismiss the application. 14.8 The Proper Officer is to provide the parties with brief written reasons for the decision at the same time as, or as part of the notification to the parties, of the outcome of the Allocation Review as required by clause 9.2." 24Clause 14.7, which empowers the proper officer to dismiss the application if not satisfied as to the precondition in s 62(1A), is curious: the section suggests that the "application" must be dismissed in such circumstances. Further, although cl 14.8 requires "brief written reasons for the decision", there is no suggestion that failure to give reasons would invalidate the decision. (A challenge to the adequacy of the reasons given by the proper officer in this case was abandoned.) 25The Attorney General, appearing by leave as amicus, in the absence of an active contradictor, submitted that the precondition to the referral for a further assessment depended on the satisfaction of the proper officer as to the qualifications imposed by s 62(1A). Although, as respondent in earlier proceedings in this Court, QBE had taken the same view, in this case, somewhat opportunistically, it contended that s 62(1A) identified jurisdictional facts which, if satisfied, permitted and indeed required referral for further assessment, at least in the absence of any discretionary consideration to the contrary, none being identified by the proper officer. 26QBE relied on the absence of any statutory provision indicating that qualification for a further assessment depended on the "satisfaction" of the proper officer as to the requisite circumstances, but rather provided a straightforward statement of the elements required to be satisfied. 27The principal factors favouring a condition referrable to the state of satisfaction of the proper officer were the following: (a) the characteristics of the information referred to in the statutory provision all involved matters requiring evaluative judgment; (b) the characteristics were essentially factual, involving no legal element; (c) if the relevant characteristics were satisfied, there would usually be no further matters to be assessed by the proper officer and thus the power of referral would, if challenged, fall to be determined by a judge of the Supreme Court in judicial review proceedings; (d) the inconvenience of having such matters liable to determination by the Supreme Court, and (e) the purpose of providing for medical assessment without dependence on the procedural rigours (and expense) of a civil trial with expert witnesses. 28There is no doubt that these factors constitute powerful considerations in favour of the view that Parliament did not intend questions of relevance and materiality to be determined, as matters of fact, by the Supreme Court. While none of the factors individually was determinative, together they were highly persuasive. 29QBE did not dispute that the question was ultimately one of statutory construction, nor that inconvenience (or disfunctionality in the language of Aronson and Groves, Judicial Review of Administrative Action (5th ed Law Book Co, 2013) at [4.560]) was a powerful consideration: Woolworths Ltd v Pallas Newco Pty Ltd [2004] NSWCA 422; 61 NSWLR 707 at [63] (Spigelman CJ); Timbarra Protection Coalition at [91]; Warehouse Group (Australia) Pty Ltd v Woolworths Ltd [2005] NSWCA 269; 141 LGERA 376 at [134]-[135]. On the other hand, QBE noted that there were seminal cases in which, despite inconvenience and the need to make evaluative judgments, the courts had found a statutory intention to create jurisdictional facts, including the decision in City of Enfield v Development Assessment Commission [2000] HCA 5; 199 CLR 135. 30Although it is undoubtedly correct to pay close attention to the language of the statute, and accept that express reference to the "satisfaction" or "opinion" of a specified decision-maker would be a significant consideration in favour of a finding that the precondition to the exercise of a power is the officer's state of mind, nevertheless this factor has limited weight in circumstances where there is no express conferral of statutory power on the proper officer. It is only by implication that one identifies the role or function of the proper officer in respect of an application under s 62. 31It has long been accepted that matters requiring evaluative judgment are likely to be intended by Parliament to be determined, subject to ensuring compliance with legal parameters, by the repository of the power: Australian Heritage Commission v Mount Isa Mines Ltd [1997] HCA 10; 187 CLR 297. If the statutory preconditions involved questions of law, which is not the present case, a different presumption might arise: Plaintiff M70/2011 v Minister for Immigration and Citizenship [Malaysian Declaration Case] [2011] HCA 32; 244 CLR 144 at [116] (Gummow, Hayne, Crennan and Bell JJ). A further consideration in the present case is that control of the medical assessment process has been largely, though not entirely, removed from the trial court. If it were thought appropriate to review the findings of the proper officer under s 62, on the merits of the application, one might have expected that function to be conferred on the prospective trial court. The complaint of failing to refer the application for further medical assessment is not far from a complaint of procedural unfairness which, if made good, would entitle the trial court to reject a certificate, if that course were necessary to prevent substantial injustice: s 61(4). 32There is, as the Attorney emphasised, a further factor which militates strongly in favour of the position adopted by him, namely the authority of this Court in Rodger v De Gelder. In discussing the availability of relief by way of judicial review, Beazley JA said that it was unnecessary for her to consider the further issue "relating to jurisdictional facts" which had been identified at [62]: see [71]. However, in order to allow the appeal, she also dealt with a notice of contention. Beazley JA noted that the second contention raised by the respondent was that "the report of Dr Maxwell was not additional information as found by [the trial judge in the judicial review proceedings]". Having rejected the suggestion that the decision was "illogical, irrational or lacking a basis in findings or inferences of fact supported on logical grounds", Beazley JA proceeded to deal with the second contention which called in issue a factual finding. She held at [99]: "First, I agree with the trial judge that Dr Maxwell's report could constitute additional information, notwithstanding that in the original assessment and review the assessors had available medical evidence relating to causation. That was a matter for decision by the Proper Officer, first, as to whether it was additional information and secondly, whether the matter should be referred for further review." 33Macfarlan JA said that the respondent had contended that the decision of the proper officer was "wrong, and was illogical and irrational": at [112]. He continued: "[113] The decision to refer a claimant for a further medical assessment is made by an administrative officer and, whilst not a purely procedural step, is nevertheless not the ultimate step in the relevant process (that being the further medical assessment itself). Bearing this in mind, my view is that on the proper construction of s 62(1A), the capacity of the additional information to affect a further medical assessment is a matter for the subjective satisfaction of the Proper Officer. It is not necessary that that capacity exist as a matter of objective fact. [114] In these circumstances the grounds available for successful judicial review are limited (see Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611). In my view none have been established here. The first respondent's submissions do not amount to any more than an attempt to contest the merits of the Proper Officer's decision concerning the relevant capacity. They do not establish that the decision was irrational, illogical or otherwise liable to review on one of the grounds to which reference is made in SZMDS." 34It is tolerably clear that both Beazley JA and (more explicitly) Macfarlan JA, declined to review the merits of the decision of the proper officer. (McColl JA agreed with both judgments, suggesting no difference of approach between them on issues necessary for the decision.) It may thus be seen that the Court was unanimous in rejecting the proposition that it was for the Court, rather than the proper officer, to characterise Dr Maxwell's report as "additional information". 35The Attorney's submissions should be accepted: the authority impliedly conferred on the proper officer to refer an application for further assessment to a medical assessor depended on the satisfaction of the proper officer as to the requirements set out in sub-s (1A). (d) standard of review 36Once it is accepted that the characterisation of the information is a matter to be considered in the first instance by the proper officer and not one to be determined by this Court afresh on a judicial review application, the review proceedings are limited to determining whether the proper officer's opinion has been properly formed according to law: Buck v Bavone [1976] HCA 24; 135 CLR 110 at 118-119 (Gibbs J); D'Amore at [220]. The critical question is thus "whether the determination was irrational, illogical and not based on findings or inferences of fact supported by logical grounds": Minister for Immigration and Multicultural and Indigenous Affairs v SGLB [2004] HCA 32; 78 ALJR 992 at [38] (Gummow and Hayne JJ). Further, as explained by Latham CJ in The Queen v Connell; Ex parte Hetton Bellbird Collieries Ltd [1944] HCA 42; 69 CLR 407 at 432: "If the opinion which was in fact formed was reached by taking into account irrelevant considerations or by otherwise misconstruing the terms of the relevant legislation, then it must be held that the opinion required has not been formed. In that event the basis for the exercise of power is absent, just as if it were shown that the opinion was arbitrary, capricious, irrational, or not bona fide." 37Such standards set the jurisdictional parameters of the power conferred on the officer. QBE also relied upon error of law on the face of the record as a basis for setting aside the determination of the proper officer. That approach involved a number of propositions which were not adequately explored. For example, it assumed that the "record" to be reviewed for legal error included all of the material before the proper officer, together with proper officer's reasons. So far as the reasons were concerned, counsel called in aid s 69(4) of the Supreme Court Act which provides that "the face of the record includes the reasons expressed by the court or tribunal for its ultimate determination". However, the proper officer was clearly not a "court" for the purposes of the section and there was no discussion as to whether she was properly to be characterised as a "tribunal": cf Masters v McCubbery [1996] 1 VR 635, dealing with the equivalent provision in the Administrative Law Act 1978 (Vic), which has a definition of "tribunal". Nor was attention paid to the scope of the phrase "ultimate determination". When pressed, counsel for QBE submitted that it might not be necessary to rely on s 69(4) and that the common law would recognise the application by QBE, together with the attached documentation and the reasons of the proper officer, into which the decision was incorporated, as constituting the "record". The cases relied upon, however, included Craig v South Australia [1995] HCA 58; 184 CLR 163 (dealing with an inferior court, but discussing tribunals) and R v Northumberland Compensation Appeal Tribunal; Ex parte Shaw [1952] 1 KB 338 (dealing with a statutory tribunal). Further consideration is required in order to determine how these principles apply to the officer of an authority performing a gateway function in filtering applications for further assessment. If the requirement that there be a "record" is to be ignored or deprived of content, all administrative decisions will be reviewable for any kind of error of law. Whether or not that approach should be adopted as a matter of policy, it is not the current basis for judicial review under s 69. 38These questions need not be pursued, because QBE ultimately did not rely upon an error of law which could not properly be characterised as jurisdictional error, which is a basis for review requiring no reference to a "record". Application of principles 39The refusal by the proper officer to refer QBE's application for further assessment was accompanied by brief written reasons, in compliance with the Medical Assessment Guidelines, cl 14.8. The reasons stated that the officer had read the material provided by the parties and expressed her conclusion in the following terms at the outset: "I am not satisfied that there is additional relevant information about the injury such as to be capable of having a material effect on the outcome of the previous assessment as required by s 62(1A) of the Motor Accidents Compensation Act 1999." 40The substance of the reasons may be set out in full and were as follows: "The applicant/insurer has lodged the application on the basis that there is additional information about the injury and has provided the following documents: ● Medical records of Northwest Health ● Medical records of Dr Knipe The insurer submits that the information in the report of Dr Knipe is supportive of the view of Dr Potter and confirms the claimant's condition pre-dating the accident. Whilst the medical records of North West Health and Dr Knipe were not available to the MAS Assessor, the information regarding the claimant's pre-accident psychological history was already considered by the MAS Assessor. The MAS Assessor has considered the reports of Dr Potter (Psychiatrist) and Dr Badenhorst as summarised on pages 9 and 10 of the MAS certificate dated 15 June 2011. In his report dated 26 June 2009, Dr Potter states that 'She presents now with some features of depression ... which is more consistent with the struggle in life and relationships reflecting a disturbed and disrupted early development ... She described having [been] depressed in high school ... was prescribed the antidepressant, Zoloft. She continued explaining that she had seen "another doctor who said I had bipolar disorder".' Dr [Bradenhorst's] report dated 4 June 2008 indicated that the claimant has a Bipolar affective disorder. The information that the claimant has previously engaged in self-harm as an adolescent has been indicated in the report of psychologist Kelly Ritchie which has been considered by the MAS Assessor. The information in the additional documents provided by the insurer are in similar terms with the previous reports considered by the MAS Assessor. Accordingly, I am not satisfied that the above information is additional and relevant or such as to be capable of having a material effect on the outcome of the previous assessment." 41QBE's challenge to these reasons focused on three propositions. 42The first, characterised as a misconstruction of the legislation, a failure to carry out the statutory task and a failure to consider relevant information, asserted that the proper officer had focused on "a particular topic", namely the claimant's pre-accident psychological history, which had been considered by the assessor, and rejected the further information as not being "additional" because it addressed the same topic, without regard to its content. 43The second point, which can conveniently be considered in conjunction with the first, was that the proper officer had not considered the submissions in which QBE had identified the particular information which it said was additional, relevant and capable of affecting the outcome, by reference to particular aspects of Dr Knipe's report and the material from North West Health. 44Thirdly, rejecting the approach adopted by the primary judge, QBE submitted that the proper officer had determined separately that the information supplied was not "additional and relevant" and that it was not capable of having a material effect on the previous assessment. It followed, QBE submitted, that it was fallacious for the trial judge to treat the finding that there was no additional information (which he held to be legally flawed) as severable from the finding that the information was not capable of having a material effect on the previous assessment. The first finding may have infected the second and, accordingly, the decision should have been quashed. 45QBE challenged the conclusions of the primary judge that the proper officer "understood the question that she was required to ask", "took into account all relevant considerations" and "did not misapprehend the nature or limits of the powers she was performing": at [41] and [46]. QBE accepted, and indeed relied on, the findings of the primary judge that the content of the medical records on which QBE based its application for further assessment contained "greater particularity to the extent of the pre-existing injuries" and that the officer's decision that the records did not provide "additional and relevant" information was not open: at [77]-[79]. However, on the question of materiality, QBE submitted that the proper officer had failed to have regard to the fact that the information was "additional", a factor which, it might be inferred, followed from a misunderstanding as to the function conferred on her, despite formal statements in her reasons, reflecting purported application of the section. 46The medical certificate, dated 15 June 2011, which resulted from the first assessment was in the following terms: "The following injuries caused by the motor accident give rise to a permanent impairment which IS GREATER THAN 10%: ● major depressive disorder ● posttraumatic stress disorder ● alcohol dependence." 47The written submission by QBE to the proper officer set out an extract from the medical assessment which read as follows: "Ms Miller has symptoms of major depressive disorder and posttraumatic stress disorder. She also has alcohol dependence. Given her report that her symptoms that her symptoms began after the accident, I believe her conditions were caused by the accident. Her conditions are inter-related. Separating from her fiancée around August or September 2009 aggravated and perpetuated her symptoms. I did not obtain a history of bipolar disorder." 48The submission then set out a number of extracts from the newly obtained documents and concluded with the following passage: "The insurer submits that this further information clearly constitutes additional relevant information about the injury which is capable of having material effect on the outcome of the assessment of Assessor Walker. The confirmation that the claimant had been diagnosed with depression and borderline personality disorder in 2006, had ceased medication in 2007, had issues of excess alcohol consumption in 2006 and had relationship issues pre-dating the motor vehicle accident are all capable of causing the Assessor to revise his findings on causation and to reach a view similar to that formed by Dr Potter; namely; that her psychiatric presentation is related to her general life struggles and underlying personality and are not specifically related to the motor vehicle accident." 49As the submission conceded, the assessor had available a report from Dr Brian Potter, psychiatrist, dated 26 June 2008. That report was summarised by the assessor in the section entitled "Review of documentation" at paragraph 9. The assessor also had a report from Dr Louisa Badenhorst, referred to at paragraph 13. 50Against this background, it is convenient to address the submission that the proper officer failed to refer to important new information, as identified by QBE, demonstrating that before the accident the claimant (a) consumed " excess alcohol", (b) had been prescribed (but ceased taking) medication for diagnosed psychological conditions and (c) had had problems with her fiancé. 51The difficulty for QBE was that Dr Potter had reported a "history of alcohol intake", which could attract the diagnosis of substance (alcohol) abuse if there were more reliable information; a "struggle in life and relationships reflecting a disturbed and disrupted early development"; "features of depression or unhappiness reflecting a struggle in life and relationships requiring psychotherapeutic help"; "a complex developmental history and a past history of treatment with antidepressants from two different doctors": p 12. Dr Potter also said that the claimant had reported being prescribed an antidepressant, Zoloft, and had been given a diagnosis of bipolar disorder. She reported to him (as he recorded) having taken an antidepressant, Cipramil, approximately three years before for a period of two months: p 11. 52As to the level of alcohol consumption, apparently reported in the present tense by Dr Potter, it was substantially in excess of that referred to in the newly obtained report, which pre-dated the accident by some two years. Further, as the submission accepted, the new material did little more than "confirm" the diagnoses of depression and borderline personality disorder in 2006. There was nothing in the reasons of the assessor to suggest that those diagnoses were not understood. The assessor did not find that the claimant suffered from borderline personality disorder. 53Most of these matters were referred to by the proper officer in her reasons. Thus, she expressly referred to the discussion by Dr Potter of the claimant's prior psychological history. Although that passage included a reference to "a struggle in life and relationships" it did not specifically refer to (and Dr Potter appears not to have known of) an aspect of her relationship with her fiancé recorded in the new material. On the other hand, that detail could properly have been put to one side as of limited significance. It pre-dated the accident by almost 10 months and seven subsequent consultations at the same health care service did not refer to it. The relationship was continuing at the time of the accident. 54It is true that the proper officer did not refer to the additional material relating to "excess alcohol consumption in 2006", but she stated that she had read the submissions and it might be thought that this particular issue was judged not to be of major significance. It was no doubt relevant information, but it could readily be set aside as not capable of supporting a material change in the conclusion reached by the assessor. 55Further, it is by no means clear that the proper officer dealt separately with the questions whether the information was "additional" to that before the assessor, and whether it was capable of having a material effect. She expressly identified that the medical records in question were "not available" to the assessor, but distinguished the information contained in them, which she considered had already been considered. She did not say there was no additional information, except in the final sentence stating that she was not satisfied "that the above information is additional and relevant or such as to be capable of having a material effect on the outcome of the previous assessment". QBE's submission in this regard turned on the use of the emphasised word "or" in this passage, to demonstrate that the proper officer in fact took a two-stage approach. Even so, it would involve a mind-set determined to find error to read that passage so that the capacity for material effect was not an assessment of the "above information" as stated, but only of that information which was additional and relevant, which was none of it. 56QBE accepted that each of the characteristics of information as "additional", "relevant" and "capable of having a material effect" had to be satisfied: on the basis that relevance was not in issue, the proper officer found that the first and third characteristics were not satisfied. It is sufficient for present purposes to uphold the assessment of the primary judge that the latter finding could not be described as manifestly unreasonable or irrational and did not otherwise demonstrate error of law. 57For these reasons, there should be a grant of leave to appeal, but the appeal should be dismissed with costs. 58WARD JA: I agree with Basten JA. 59YOUNG AJA: I agree with Basten JA.

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