QBE Insurance (Australia) Ltd v Motor Accidents Authority of New South Wales

Leah Miller (Third Defendant) Representation: Counsel: M Allars (Plaintiff) Submitting appearance (First and Second Defendants) A J Stone - Submitting appearance (Third Defendant) Solicitors: QBE CTP Legal Unit (Plaintiff) Crown Solicitor's Office - Submitting appearance (First and Second Defendants) Maurice Blackburn - Submitting appearance (Third Defendant) File Number(s): 2012/253345 Publication restriction: None

Judgment 1By summons filed 14 August 2012, the plaintiff, QBE Insurance (Australia) Ltd (hereinafter, "QBE"), seeks the issue of orders in the nature of certiorari quashing a decision of the Acting Proper Officer of the first defendant, the Motor Accidents Authority of New South Wales (hereinafter, "the Authority"). The decision of the Authority was made on 18 June 2012 (hereinafter, "the Decision") and it declined to refer for further assessment an issue as to the permanent impairment assessment of the third defendant, Ms Leah Miller. 2The issue upon which the proceedings turn is whether the Authority, through its Proper Officer, erred when it was not satisfied that material provided by QBE was additional relevant information capable of having a material effect on the outcome of the previous assessment and, to the extent that it erred, whether that error was jurisdictional, or reviewable for error of law. 3The proceedings are complicated because there is no extant contending party. The third defendant, Ms Miller, having appeared in the proceeding and consented to orders requiring the filing of affidavits and submissions by QBE, withdrew her appearance when the matter came on for hearing and filed a submitting appearance in lieu thereof. As a consequence there is no contradictor to the application of QBE. Ms Miller does not consent to the orders sought and the Court must determine whether relevant, reviewable error has occurred.

Facts 4On 18 May 2008, Ms Miller, whilst driving a motor vehicle, was involved in an accident. On 2 December 2009, Ms Miller lodged with the Authority an application for assessment of a permanent impairment dispute by the medical assessment service. In that claim she sought compensation for neck and back pain and psychological complaints. 5On 4 June 2008, Dr Louisa Badenhorst referred Ms Miller to Dr Kelly Ritchie stating that Ms Miller was presenting with posttraumatic stress, and that she suffered from bipolar disorder. Dr Badenhorst enclosed a medical certificate/referral. 6By report dated 11 June 2008, Ms Belinda Cross, supervised by Dr Kelly Ritchie, diagnosed Ms Miller as suffering from posttraumatic stress disorder (hereinafter, "PTSD"). 7By report dated 20 October 2009, Ms Amber Dunlop, Psychologist, found that Ms Miller's ongoing symptoms indicated PTSD. 8In its reply of 24 December 2009, QBE annexed three reports, being the report of Dr Brian Potter, Psychiatrist; report of Dr Kelly Ritchie and the report of Dr Frank Machart. 9Dr Machart's report related to orthopaedic issues, which are not relevant to the proceedings now before the Court. Dr Brian Potter's report, dated 26 June 2009, concluded that Ms Miller had an underlying fragility and struggle in life, which required treatment, but was unrelated to the motor vehicle accident. He opined that there was no impairment and therefore no longer any whole person impairment (hereinafter, "WPI"). 10The report of Dr Kelly Ritchie, appended by QBE in its reply, was a later report than the report of 4 June 2008 and was dated 1 October 2008. In that report Dr Ritchie advised that Ms Miller was no longer in need of psychological counselling for PTSD and that Ms Miller presented consistently with her premorbid self, with ability to engage in her premorbid activities and life style. 11On 10 and 11 February 2010, the Authority referred the medical dispute to Assessors. On 19 March 2010 one of the Assessors issued a certificate relating to the cervical spine and thoracic spine, concluding that WPI was not greater than 10 per cent and was 5 per cent, in relation to those injuries. 12On 7 April 2010, the other Assessor issued a certificate that the accident had caused injuries that were major depressive disorder, PTSD and alcohol dependence, but at that time declined to conclude or assess whether this was a permanent impairment. On 15 June 2011, the same Assessor issued a second certificate repeating the causation issues to which reference has been made and concluding that the injuries gave rise to a permanent impairment greater than 10 per cent, namely, 18 per cent WPI. 13The certificate of 15 June 2011 contained the following comment: "Ms Miller has symptoms of major depressive disorder and posttraumatic stress disorder. She also has alcohol dependence. Given her report that her symptoms began after the accident, I believe her conditions were caused by the accident. Her conditions are interrelated. Separating from her fiancé around August or September 2009 aggravated and perpetuated her symptoms. I did not obtain a history of bipolar disorder. Summary of Injuries Listed by the Parties and Caused by the Accident The following injuries WERE caused by the motor accident:

The approach to jurisdictional error 24It is appropriate to recite the relevant terms of s 62 of the MAC Act: "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)." 25Since it is not immediately apparent to some how one enforces a right granted by statute, it is necessary to reiterate certain propositions that might otherwise be considered trite. 26Where a person refuses or fails to perform a public duty imposed upon that person by statute, an aggrieved party may command the performance of that duty by seeking and obtaining the writ of mandamus or, in New South Wales and some other jurisdictions, orders in the nature of mandamus. On the other hand, where a person purports to perform a statutory function in want or excess of jurisdiction, that person may be restrained (or subsequent conduct reliant upon that action restrained) by an aggrieved party seeking and obtaining the writ of prohibition, or, in New South Wales and some other jurisdictions, orders in the nature of prohibition: see Public Service Association of South Australia v Federated Clerks' Union of Australia, South Australian Branch [1991] HCA 33; (1991) 173 CLR 132 (hereinafter, "PSA (No 1)") at 144-145, per Brennan J, at 153, per Deane J, and at 166, per McHugh J. One or more of those orders ultimately issued in Singh v Motor Accidents Authority of NSW (No 2) [2010] NSWSC 1443 (hereinafter, "Singh (No 2)"). 27As the High Court described it in R v Blakeley; Ex parte Association of Architects, Engineers, Surveyors and Draughtsmen of Australia [1950] HCA 40; (1950) 82 CLR 54 at 75: "If an authority with limited jurisdiction has no power to make a conclusive decision as to the existence or non-existence of a collateral matter upon which jurisdiction depends, and makes a wrong preliminary decision either way, the mistake will be corrected by mandamus or prohibition - by mandamus if he wrongly decides that he has no jurisdiction, by prohibition if he wrongly decides that he has jurisdiction. In the present case the Commissioner has in my opinion erroneously decided that there are no disputes existing between the Association and its members on the one hand and the employers who were served with the log on the other. He has wrongly declined to exercise his power and to perform his duty of hearing and determining the disputes. Therefore, in my opinion, mandamus should issue." This passage was recently reiterated, with approval, in Public Service Association of South Australia v Industrial Relations Commission (SA) [2012] HCA 25; (2012) 86 ALJR 862 (hereinafter, "PSA (No 2)"), at [58], per Gummow, Hayne, Crennan, Kiefel and Bell JJ. 28The terms "excess of jurisdiction" and "want of jurisdiction" are frequently used in referring to inferior courts or tribunals in a manner which is interchangeable, but there is, strictly, a distinction. The term "want of jurisdiction" generally refers to conduct or an act which is beyond the general power of court or tribunal, while "excess of jurisdiction" generally refers to conduct or an act within general power but performed in breach of the statutory conditions necessary to authorise the conduct or act: see PSA (No 1) at 164, per McHugh J, in dissent. 29In PSA (No 1), the High Court, by majority (Brennan, Dawson and Gaudron JJ) determined that a refusal of leave to appeal by a Full Commission of the Industrial Commission of South Australia was affected by jurisdictional error, because the Full Commission refused leave on the ground that the Registrar of the Industrial Commission, from whom the appeal was sought to be taken, was exercising a discretionary power. The High Court found that the Full Commission had wrongly categorised the nature of the decision under appeal and that the refusal of leave involved an excess of jurisdiction. Therefore, the denial of leave by the Commission, even though within the kind of order that could be made, was amenable to prohibition notwithstanding the privative clause that purported to operate. 30The minority in PSA (No 1) (Deane and McHugh JJ) in separate judgments determined that there was no excess or want of jurisdiction and, in the case of McHugh J, no jurisdictional error. In so deciding each of the judges in the minority took that which nowadays would be classed as a narrow view of jurisdictional error, while the majority took a view consistent with the more recent authorities on jurisdictional error. 31QBE, in these proceedings, relies upon the extended or modern view as to jurisdictional error and relies on my previous decision in Singh v Motor Accidents Authority of NSW [2010] NSWSC 550 (hereinafter, "Singh (No 1)") to construe the provisions of s 62 of the MAC Act as requiring conditions for the exercise of power that are jurisdictional facts, namely the existence of additional relevant information about the injury and whether the information is "capable of having a material effect on the outcome of the previous assessment". QBE submits that a proper application of the Court's judgment in Singh (No 1) would have the Court, consistently, hold that these are jurisdictional facts, which must exist as objective facts, and the non-existence of which precludes a referral. 32In Singh (No 2), the foregoing analysis in Singh (No 1) was qualified by reference to the jurisdictional fact being the objective existence of "a ground" of additional relevant information capable of having a material effect on the outcome: see Singh (No 2) at [39] - [40]. 33As the judgment of the Court of Appeal in Rodger v De Gelder [2011] NSWCA 97; (2011) 80 NSWLR 594 makes clear, my judgment in Singh (No 1) was overruled (see, in particular, the authorised headnote in the New South Wales Law Reports). QBE relies upon the fact that the Court of Appeal in Rodger v De Gelder expressly declined to deal with the question of jurisdictional fact, leaving, on the submission of QBE, the reasoning in Singh (No 1) and Singh (No 2) unaffected in that respect. 34The analysis in Singh (No 1) and Singh (No 2) of the term "jurisdictional fact" remains formally unaffected. In general, it depended upon well-known and often applied authority. In Singh (No 1) I said: "[44] In some respects the term 'jurisdictional fact' is a misnomer. The most useful definition is that of the High Court in Gedeon v Commissioner of the New South Wales Crime Commission [2008] HCA 43; (2008) 236 CLR 120 at 139. There, the High Court (Gummow, Kirby, Hayne, Heydon, Crennan and Kiefel JJ) said: '[43] The expression "jurisdictional fact" was used somewhat loosely in the course of submissions. Generally the expression is used to identify a criterion the satisfaction of which enlivens the exercise of the statutory power or discretion in question. If the criterion be not satisfied then the decision purportedly made in exercise of the power or discretion will have been made without the necessary statutory authority required of the decision maker.' [45] The expression has been used for many years and was used to include 'constitutional facts', i.e. those criteria the existence of which enlivened legislative power: see for example the determination by the High Court, over many years, of the existence of 'an industrial dispute extending beyond the limits of any one State' in considering the jurisdiction of the federal arbitral body. [46] But the criteria which requires satisfaction to enliven the exercise of statutory power is not necessarily confined to 'a fact'. It may often be a mixed question of fact and law. The fact may be the existence of an opinion of a particular decision-maker or some other person: see for example Corporation of the City of Enfield v Development Assessment Commission [2000] HCA 5; (2000) 199 CLR 135. [47] Thus in City of Enfield, supra, (at [28]) the High Court referred to the term 'jurisdictional fact' as one 'often used to identify that criterion, satisfaction of which enlivens the power of the decision-maker to exercise a discretion. Used here, it identifies a criterion, satisfaction of which mandates a particular outcome.' In that case, the criterion requiring satisfaction was the consent of both the Minister and the Council: City of Enfield, supra, at [28] (per Gleeson CJ, Gummow, Kirby and Hayne JJ). [48] The determination of whether a circumstance or fact is 'jurisdictional' depends upon the construction of the statute. In turn, that depends upon a determination as to whether the legislature intended that the absence or presence of the objective criterion will or will not invalidate action under the statute. This was one of the fundamental issues that the High Court discussed in Project Blue Sky v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355. The issue was discussed by the Court of Appeal in Timbarra Protection Coalition Inc v Ross Mining NL & Ors [1999] NSWCA 8; (1999) 46 NSWLR 55. In dealing with issues arising under the Environmental Planning and Assessment Act 1979, his Honour Chief Justice Spigelman (with whom Mason P and Meagher JA concurred) said: '[37] The issue of jurisdictional fact turns, and turns only, on the proper construction of the Statute. (See e.g. Ex parte Redgrave; Re Bennett (1946) 46 SR (NSW) 122, 125). The Parliament can make any fact a jurisdictional fact, in the relevant sense: that it must exist in fact ("objectivity") and that the legislature intends that the absence or presence of the fact will invalidate action under the statute ("essentiality"). (Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28 at [91]- [93]). [38] "Objectivity" and "essentiality" are two interrelated elements in the determination of whether a factual reference in a statutory formulation is a jurisdictional fact in the relevant sense. They are interrelated because indicators of "essentiality" will often suggest "objectivity". [39] Any statutory formulation which contains a factual reference must be construed so as to determine the meaning of the words chosen by Parliament, having regard to the context of that statutory formulation and the purpose or object underlying the legislation. There is nothing special about the task of statutory construction with regard to the determination of the issue whether the factual reference is a jurisdictional fact. All the normal rules of statutory construction apply. The academic literature which describes "jurisdictional fact" as some kind of "doctrine" is, in my opinion, misconceived. The appellation "jurisdictional fact" is a convenient way of expressing a conclusion - the result of a process of statutory construction. [40] Where the process of construction leads to the conclusion that Parliament intended that the factual reference can only be satisfied by the actual existence (or non-existence) of the fact or facts, then the rule of law requires a Court with a judicial review jurisdiction to give effect to that intention by inquiry into the existence of the fact or facts.' [49] The reference, by the High Court of Australia, to the inconvenience of determining that the legislature has made the jurisdiction contingent upon the actual existence of the state of facts, as distinct from the opinion or determination of a court or tribunal (see Parisienne Basket Shoes Pty Ltd v Whyte [1938] HCA 7; (1938) 59 CLR 369 at 391, per Dixon J), does not apply to a circumstance where the criteria are not to be determined by a court or tribunal, at all." 35As is clear from the foregoing analysis, whether any particular criterion is a jurisdictional fact will depend most importantly on the construction of the statute. The foregoing analysis, upon which QBE relies, is an analysis predicated on the conclusion that the Proper Officer is doing no more than an administrative step and is not determining or affecting the rights of the parties. 36The Court of Appeal in Rodger v De Gelder made clear that such a conclusion is incorrect. As Beazley JA said in Rodger v De Gelder (at [69]), the task of a Proper Officer is not "only procedural" and (at [70]): "The task of the Proper officer involves making a decision that affects rights, as it is the outcome of the medical assessment that determines whether or not a person has an entitlement to damages for non-economic loss. True it is that it is the outcome of the further medical assessment (if any) that determines the legal rights of the parties. However, the decision of the Proper Officer as to whether the further information or deterioration in the injury is capable of having a material affect on the outcome of the previous assessment, 'sufficiently "determines" or is connected' with that decision and ... is amenable to an order in the nature of certiorari." 37As a consequence of that finding, the Court of Appeal found it unnecessary to consider the further issue of whether the criteria in s 62(1)(a) and s 62(1A) of the MAC Act were jurisdictional facts. 38Nevertheless, the effect of the judgment in the Court of Appeal, apart from formally overruling Singh (No 1) (and by inference Singh (No 2)) significantly affects the statutory context of the conditions in s 62(1)(a) and s 62(1A) of the MAC Act and, as a consequence, the construction of the legislation. That different context impacts significantly upon whether or not the provisions in s 62 are jurisdictional facts. I will return to this later in the judgment.

The Decision of the Proper Officer 39I have, earlier in these reasons, dealt with much of the background and basis for the application before the Proper Officer. On 18 June 2012, the Proper Officer determined "that the application shall not be referred for further assessment". 40The reasons for that decision warrant reiteration. The Proper Officer said: "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 section 62(1A) of the Motor Accidents Compensation Act 1999. [The Proper Officer then drew attention to the Judgment of Davies J at [35] and [43] in Alavanja v NRMA [2010] NSWSC 1182.] ... 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 [sic] 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 Badenhorst'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 [sic] in similar terms with [sic] 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." 41The foregoing reiteration of much of the decision and reasons of the Proper Officer demonstrates that the Proper Officer understood the question that she was required to ask in order to determine whether the matter should be referred for further medical assessment. It also demonstrates that the Proper Officer took into account all relevant considerations and did not fail to take into account any required consideration. Moreover, the Proper Officer did not take into account irrelevant considerations. 42As the High Court said in Attorney-General (NSW) v Quin [1990] HCA 21; (1990) 170 CLR 1 at 35-36 (per Brennan J) there is a fundamental distinction between correcting administrative injustice or error by a review of the merits of administrative action and adjudicating the extent of power and legality of the exercise of administrative functions: "The duty and jurisdiction of the court to review administrative action do not go beyond the declaration and enforcing of the law which determines the limits and governs the exercise of the repository's power. If, in so doing, the court avoids administrative injustice or error, so be it; but the court has no jurisdiction simply to cure administrative injustice or error. The merits of administrative action, to the extent that they can be distinguished from legality, are for the repository of the relevant power and, subject to political control, for the repository alone. The consequence is that the scope of judicial review must be defined not in terms of the protection of individual interests but in terms of the extent of power and the legality of its exercise. In Australia, the modern development and expansion of the law of judicial review of administrative action have been achieved by an increasingly sophisticated exposition of implied limitations on the extent or the exercise of statutory power, but those limitations are not calculated to secure judicial scrutiny of the merits of a particular case. There is one limitation, 'Wednesbury unreasonableness' (the nomenclature comes from Associated Provincial Picture Houses Ld. v. Wednesbury Corporation [1947] EWCA Civ 1; (1948) 1 KB 223), which may appear to open the gate to judicial review of the merits of a decision or action taken within power. Properly applied, Wednesbury unreasonableness leaves the merits of a decision or action unaffected unless the decision or action is such as to amount to an abuse of power: Nottinghamshire County Council v. Secretary of State for the Environment [1985] UKHL 8; (1986) AC 240, at p 249. Acting on the implied intention of the legislature that a power be exercised reasonably, the court holds invalid a purported exercise of the power which is so unreasonable that no reasonable repository of the power could have taken the impugned decision or action. The limitation is extremely confined." 43Generally, jurisdictional error will be disclosed where a decision maker has: not taken into account a criterion required by law; taken into account an irrelevant criterion; utilised the wrong test or asked itself the wrong question; or misapprehended the nature or limits of its powers as a consequence of which it has performed an act or made a decision (or not done so), which is not sanctioned by authority: see, inter alia, Craig v South Australia [1995] HCA 58; (1995) 184 CLR 163; Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24. 44Further, jurisdictional error will occur if there were to be a denial of procedural fairness. Yet, at all times, the distinction between a merit review and judicial review must be kept in mind, otherwise we are "apt to encourage a slide into impermissible merit review": Swift v SAS Trustee Corporation [2010] NSWCA 182 at [45]. 45The foregoing relates, primarily, to jurisdictional error, because, hitherto, the High Court has taken the view that it does not have original jurisdiction to issue certiorari for error of law on the face of the record other than as an adjunct to mandamus and prohibition. This Court has the power to issue orders in the nature of certiorari for errors of law on the face of the record, which record includes the reasons for judgment: s 69 of the Supreme Court Act 1970. 46Nevertheless, the Proper Officer has not failed to take into account a consideration required by law, nor taken into account an irrelevant consideration. The Proper Officer asked herself the correct question and utilised the correct test. Further, the Proper Officer did not misapprehend the nature or limits of the powers she was performing. 47As a consequence of the foregoing, if there be jurisdictional error or error amenable to orders in the nature of certiorari or mandamus, that must arise from a determination by the Court that the criteria in s 62 of the MAC Act are jurisdictional facts, the objective existence of which mandate the referral of the matter by the Proper Officer for a further assessment, or error of law amenable to orders under s 69 of the Supreme Court Act.

Jurisdictional Fact 48I have already referred and recited the analysis, to which I adhere, of the meaning of "jurisdictional fact". Earlier I referred to the difficulty in applying the conclusion reached in Singh (No 1) in circumstances where the Court of Appeal has overruled a fundamental aspect of that conclusion, namely, that the Proper Officer was not "acting judicially". 49The term "acting judicially", I accept, does not refer to the exercise of judicial power. Rather, it refers to a requirement to act in accordance with the requirements of procedural fairness and detachment: see Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321 at 365-367 per Deane J. 50Nevertheless, in that sense, the Proper Officer is required to act judicially and, in accordance with the judgment of the Court of Appeal in Rodger v De Gelder, determines or decides questions that affect the rights of the parties, namely, whether to refer a matter for further assessment, pursuant to s 62 of the MAC Act. 51Notwithstanding the different view expressed by me in Singh (No 1), the judgment of the Court of Appeal is binding. I do not say that as some formulaic expression or in any way, implicitly or otherwise, critically. There were two available constructions of the provisions of s 62 of the MAC Act. The first, originally adopted by me, was that the parties (or the Court) referred the matter for further assessment and the listing by the Proper Officer was purely a matter of procedure. On that construction the rights to a further medical assessment were enforceable by mandamus and a referral without authority restrained by prohibition, but certiorari did not lie. The function of the Proper Officer did not as a consequence of that interpretation differ, regardless of whether the referral was from a party, a court, or an assessor. 52The other available construction of the MAC Act, authoritatively adopted by the Court of Appeal in Rodger v De Gelder, is that the "referral", mentioned in s 62 of the MAC Act, is, in effect, an "application for referral", upon which application the Proper Officer determines whether the conditions in s 62(1)(a) and s 62(1A) have been satisfied. A referral by a court or assessor involves no pre-conditions to be satisfied. 53The latter construction is, on the authority of the Court of Appeal, the only construction now available and inherent in that construction is that the issue of whether the criteria or considerations in s 62(1)(a) and s 62(1A) of the MAC Act are jurisdictional facts needs to be reconsidered in the light of that binding construction of the MAC Act, and the different statutory context that applies. 54As earlier recited, in the passage from Sing (No 1) at [49], once there is a decision maker, required to act judicially, who is authorised to decide whether the referral has been made on "grounds of the deterioration of the injury or additional relevant information about the injury" that "is such as to be capable of having a material effect on the outcome of the previous assessment", a construction that renders that decision effective or ineffective depending upon the objective existence of such grounds or criteria, rather than the opinion of the decision maker to that effect, would be a most inconvenient construction. 55In the words of Dixon J in Parisienne Basket Shoes Pty Ltd v Whyte [1938] HCA 7; (1938) 59 CLR 369 at 391: "It cannot be denied that, if the legislature see fit to do it, any event or fact or circumstance whatever may be a condition upon the occurrence or existence of which the jurisdiction of a court shall depend. But, if the legislature does make the jurisdiction of a court contingent upon the actual existence of a state of facts, as distinguished from the court's opinion or determination that the facts do exist, then the validity of the proceedings and orders must always remain an outstanding question until some other court or tribunal, possessing power to determine that question, decides that the requisite state of facts in truth existed and the proceedings of the court were valid. Conceding the abstract possibility of the legislature adopting such a course, nevertheless it produces so inconvenient a result that no enactment dealing with proceedings in any of the ordinary courts of justice should receive such an interpretation unless the intention is clearly expressed." 56The issues to which Dixon J (as his Honour then was) was referring related to a magistrate's court, not a non-judicial tribunal. Nevertheless, the statement is apt to describe the issues determined by an administrative tribunal in resolving controversies between different members of society. The jurisdiction exercised by assessors under the MAC Act is a jurisdiction hitherto exercised by courts of law. 57Further, once the decision of the Proper Officer is classified as one affecting the rights of the parties, the difficulties associated with the notion of determining "objectively" that the basis for the referral is "a ground" described in s 62 or objectively determining "materiality" without embarking upon a merit review become more obvious. 58If the Proper Officer were to determine the issue of whether to refer a medical dispute for a further medical assessment, but the Court were to exercise the jurisdiction (or duty) to quash any decision that is not based upon the Court's determination of the objective existence of the criteria in s 62, the Court, not the tribunal, would be determining a substantial aspect of the "merits" of the controversy, if not the whole of it. 59Further, if the conditions in s 62(1)(a) and s 62(1A) of the MAC Act are jurisdictional facts, the objective occurrence or existence of which define the right to a further medical assessment, then the judgment of the Court of Appeal in Rodger v De Gelder would be wrong in that the decision of the Proper Officer would not be one that affects rights. Such rights would be affected only when the Court has finally and conclusively determined their existence. 60Moreover, even if the Proper Officer were to refer the matter under s 62 of the MAC Act and the medical assessment were to occur and purport to alter the rights of the parties, if the Court were to find objectively that those conditions (presumably, given the hypothetical, only the condition in s 62(1)(a) of the MAC Act) did not exist, then the purported further assessment would be invalid. 61As many judgments have adumbrated, one of the fundamental purposes of the MAC Act is the resolution of medical disputes by expert panels, rather than in curial proceedings. Bearing in mind the need to give the provisions in a statute a construction that achieves harmonious goals and accords with the purpose of the statute, once the Proper Officer is found to be required to act judicially and the decision affects the rights of the parties, the factors requiring a conclusion that the criteria in s 62(1)(a) and s 62(1A) of the MAC Act are jurisdictional facts disappear. 62The essential characteristic of the criteria in s 62(1)(a) and s 62(1A) of the MAC Act, once the legislation is construed with the Proper Officer affecting rights, is an evaluative assessment upon which reasonable people may differ, without any of them being incorrect. Such a characteristic points significantly to the questions being ones that the Proper Officer is to answer and away from them having a status as jurisdictional facts. Generally, because jurisdictional facts must exist as a matter of objective determination, the question as to their existence will allow for only one answer, either yes or no: PSA (No 2) at [31], per French CJ. 63As a consequence of the foregoing, the criteria in s 62(1)(a) and s 62(1A) of the MAC Act are difficult to establish "objectively". In Timbarra Protection Coalition Inc v Ross Mining NL [1999] NSWCA 8; (1999) 46 NSWLR 55 at 64, Spigelman CJ referred to "objectivity" and "essentiality" as the twin components of jurisdictional fact. In other words, it requires the existence of any such criterion as a matter of "objective fact", rather than it being dependent upon the decision maker's opinion that the circumstance exists. "It is difficult to say of highly evaluative facts that they have an objective existence. As facts become more evaluative, or even more complex, they become less likely to be classified as jurisdictional. There are even stronger arguments against classifying as jurisdictional facts whose evaluation requires a degree of political judgment. ... The subjective nature of that definition counted strongly against treating it as a jurisdictional fact. ... The evaluative nature of a requisite fact is not an automatic strike against it being jurisdictional. ... ... Perhaps the dominant factor (Spigelman CJ called it 'the most significant element') against reading a factual requirement as jurisdictional is the inconvenience that this would usually wreak. Cutting against that in several of the cases has been the emphatic language that the relevant Act has used in requiring or prohibiting something, going to Spigelman CJ's 'essentiality' component." (M Arronson and M Groves, Judicial Review of Administrative Action, 5th ed (2013), Lawbook Co, at 241-243.) 64In my view, in light of the judgment of the Court of Appeal in Rodger v De Gelder, the preferable construction is that the criterion in s 62(1)(a), namely, that the medical dispute may be referred "only on the grounds of the deterioration of the injury of additional relevant information about the injury", is not a jurisdictional fact. Nor is whether the deterioration or additional relevant information "is such as to be capable of having a material effect on the outcome of the previous assessment".

Error of law and illogicality 65The distinction between error of law and error of fact causes difficulties in expression and in application. The two classic expressions of the distinction between questions of law and questions of fact are those of High Court in Collector of Customs v Agfa-Gevaert [1996] HCA 36; (1996) 186 CLR 389, adopting the taxonomy of the Federal Court in Collector of Customs v Pressure Tankers Pty Ltd and Pozzolanic Enterprises Pty Ltd [1993] FCA 322; (1993) 43 FCR 280, and of Sir Frederick Jordan in Australian Gas Light Company v Valuer-General (1940) 40 SR (NSW) 126. 66The delineation utilised by the Federal Court in Pozzolanic (at 287), cited with approval by the High Court in Agfa-Gevaert (at 395), was in the following terms: "[23] The principles according to which the jurisdiction conferred by s 44 is limited are not always easy of application. Distinctions between a question of fact and a question of law can be elusive. The proper interpretation, construction and application of a statute to a given case raise issues which may be or involve questions of fact or law or mixed fact and law. Nevertheless there are five general propositions which emerge from the cases:

1. The question whether a word or phrase in a statute is to be given its ordinary meaning or some technical or other meaning is a question of law: Jedko Game Co Pty Ltd v Collector of Customs (NSW) 1987 12 ALD 491; Brutus v. Cozens [1973] AC 854.
2. The ordinary meaning of a word or its non-legal technical meaning is a question of fact: Jedko Game Co Pty Ltd v Collector of Customs (supra); New South Wales Associated Blue Metal Quarries Ltd v Commissioner of Taxation (Cth) (1956) 94 CLR 509 at 512; Life Insurance Co of Australia Ltd v Phillips (1925) 36 CLR 60 at 78; Neal v Department of Transport (1980) 3 ALD 97 at 107-108.
3. The meaning of a technical legal term is a question of law: Australian Gas Light Co v Valuer-General (1940) 40 SR (NSW) 126 at 137-8; Lombardo v Commissioner of Taxation (Cth) (1979) 40 FLR 208 at 215.
4. The effect or construction of a term whose meaning or interpretation is established is a question of law: Life Insurance Co of Australia v Phillips (supra) at 79.
5. The question whether facts fully found fall within the provision of a statutory enactment properly construed is generally a question of law: Hope v Bathurst City Council (1980) 144 CLR 1 at 7 per Mason J with whom Gibbs, Stephen, Murphy and Aickin JJ agreed; Australian National Railways Commission v Collector of Customs (SA) at 379 (Sheppard and Burchett JJ). [24] The fifth proposition as stated by the High Court in Hope v Bathurst City Council (supra) was elaborated by reference to the remarks of Fullagar J in Hayes v Federal Commissioner of Taxation: 'Where the factum probandum involves a term used in a statute, the question whether the accepted facta probantia establish that factum probandum will generally - so far as I can see, always - be a question of law.' [25] This principle is qualified when a statute uses words according to their ordinary meaning and the question is whether the facts as found fall within those words. Where it is reasonably open to hold that they do, then the question whether they do or not is one of fact: Hope v Bathurst City Council at 8. Mason J there cited the observation of Kitto J in New South Wales Associated Blue Metal Quarries Ltd v Commissioner of Taxation (Cth) (supra) at 512: 'The next question must be whether the material before the Court reasonably admits of different conclusions as to whether the ... operations fall within the ordinary meaning of the words as so determined; and that is a question of law ... If different conclusions are reasonably possible, it is necessary to decide which is the correct conclusion; and that is a question of fact ...'." 67In Australian Gas Light, the distinction was expressed in the following way: "In cases in which an appellate tribunal has jurisdiction to determine only questions of law, the following rules appear to be established by the authorities: (1) The question what is the meaning of an ordinary English word or phrase as used in the Statute is one of fact, not of law. This question is to be resolved by the relevant tribunal itself, by considering the word in its context with the assistance of dictionaries and other books, and not by expert evidence; although evidence is receivable as to the meaning of technical terms; and the meaning of a technical legal term is a question of law: Commissioners for Special Purposes of Income Tax v Pemsel. (2) The question whether a particular set of facts comes within the description of such a word or phrase is one of fact. (3) A finding of fact by a tribunal of fact cannot be disturbed if the facts inferred by the tribunal, upon which the finding is based, are capable of supporting its finding, and there is evidence capable of supporting its inferences. (4) Such a finding can be disturbed only (a) if there is no evidence to support its inferences, or (b) if the facts inferred by it and supported by evidence are incapable of justifying the finding of fact based upon those inferences. Thus, if the facts inferred by the tribunal from the evidence before it are necessarily within the description of a word or phrase in a statute or necessarily outside that description, a contrary decision is wrong in law. If, however, the facts so inferred are capable of being regarded as either within or without the description, according to the relative significance attached to them, a decision either way by a tribunal of fact cannot be disturbed by a superior Court which can determine only questions of law." (Citations omitted.) 68As made clear from the above extracts, the question whether facts found (or agreed) fit within a statutory description can be either a question of law or a mixed question of law and fact. The answer will depend on whether only one answer is available or whether different answers may be given depending on the significance or evaluation of those facts: see also L & B Linings Pty Ltd v WorkCover Authority of New South Wales [2011] NSWSC 474 at [79]; Assadourian v Roads and Traffic Authority of New South Wales (Northern Region) [2011] NSWSC 1052 at [31]; Semaan v Poidevin [2013] NSWSC 226 at [93]. 69In Semaan, supra, I cited Fullagar J in Hayes v Federal Commissioner of Taxation [1956] HCA 21; (1956) 96 CLR 47 in the following context and with the following comment: "[91] In Agfa-Gevaert, the High Court (Brennan CJ, Dawson, Toohey, Gaudron and McHugh JJ) recited, with approval, the reasons for judgment of Fullagar J in Hayes v Federal Commissioner of Taxation [1956] HCA 21; (1956) 96 CLR 47: 'Where the factum probandum involves a term used in a statute, the question whether the accepted facta probantia establish that factum probandum will generally - so far as I can see, always - be a question of law.' Note: In the above passage 'factum probandum' means a fact to be proved or, more accurately in this context, proposition to be established; and 'facta probantia' means the evidentiary (or primary) facts: see Wigmore, Evidence in Trials at Common Law Section 2, at 14 - 15 (Peter Tillers ed. 1983). [92] Here, the primary facts proved were the actions (including statements) of the accused (Mr Semaan) and the actions (including statements) of the police officer, including his belief. The conclusion that the conduct of the officer is lawful is a question of law alone only if the primary facts found were incapable of being lawful: see the Australian Gaslight taxonomy at (4) or the Pozzolanic taxonomy at (4) referred to at [8] of this judgment, as adapted to refer to the common law rather than statute." 70Albeit when dealing with a different question, the Court of Appeal, when upholding the judgment in L & B Linings, supra, said: "[66] The appellant did not assert any error of law revealed by the reasons which were given, nor in the incorporated correspondence. Yet that material set out not only the findings of primary fact, but the applicable legal principles. It noted, in substance, that the application of those principles involved the identification of certain indicators, upon which an evaluative judgment was to be based. Even in relation to judicial decision-making, it is frequently noted that matters of evaluative judgment do not readily lend themselves to precise reasoning leading to the ultimate conclusion: see Dinsdale v The Queen [2000] HCA 54; 202 CLR 321 at [9] (Gleeson CJ and Hayne J); and, in relation to administrative decision-making, Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Palme [2003] HCA 56; 216 CLR 212 at [40]; Saville v Health Care Complaints Commission [2006] NSWCA 298 at [52]." (L & B Linings v WorkCover Authority of New South Wales [2012] NSWCA 15, at [66] per Basten JA with whom McColl and Whealy JJA agreed.) 71Each of the pre-existing psychological issues is a matter that the Proper Officer found had been considered by the relevant assessor. That is a finding of fact. 72Further, the Proper Officer noted that the Knipe Records and North West Health records (see [40] infra) were not available to the Assessor. Those records deal with the significance of the pre-existing symptoms, at least at some period prior to the accident. 73The said records do not compel a conclusion that the pre-existing symptoms remained as at the date of the accident. Such a conclusion would have been inconsistent with the claimant's version of her symptoms. 74As can be seen from the extract of the Proper Officer's decision, the question asked was a compound question that included the criteria in both s 62(1)(a) and s 62(1A) of the MAC Act. Yet the answer was given separately. 75The Proper Officer referred to the question before her and answered it, as recited above at [40], by stating that she was "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". This is an answer to a compound question. 76Later in her decision, the Proper Officer (again at [40] above) concluded that the "information in the additional documents ... [is] ... in similar terms ... [to] ... the previous reports" and that she was not satisfied "that the ... information is additional and relevant or such as to be capable of having a material effect on the outcome". In so doing, the Proper Officer separately answered whether the information was additional and relevant (see s 62(1)(a) of the MAC Act), on the one hand, and, on the other hand, whether it was capable of being material (see s 62(1A) of the MAC Act). Each of those is a question of fact. 77The notes were clearly additional. No other finding is available. Because the notes addressed the existence or significance of a pre-existing injury of the same kind, they must have been relevant. Were they "about the injury"? The answer must be in the affirmative, because that which evidences a pre-existing symptom must be about the injury sustained in the accident. 78The notes are evidence. The content of the notes gives rise to facts relating to the pre-existing and therefore relevant injury. These are the primary facts (facta probantia) in the foregoing passage from the judgment of Fullagar J. The proposition to be established (factum probandum) is "a ground" that there is "additional relevant information". Given the content of the notes, the information contained in them was relevant. The Proper Officer took the view that the "information" was not additional, because the pre-existing injuries were known and considered. However, the content of the notes gives greater particularity to the extent of the pre-existing injuries. In my view, no conclusion is available other than that the information in the notes was both additional and relevant. 79Therefore, the conclusion that the content of the notes was not a ground of additional relevant information was not open and the conclusion is an error of law. 80I then turn to the issue of materiality. Here, the conclusion reached is essentially evaluative and, given the pre-existing symptoms were known to the Assessor, a finding of lack of materiality was open to the Proper Officer. The primary facts (being the contents of the notes and the further Report) were capable of giving rise to the conclusion reached. Even if I were of the view that I would have reached a different conclusion, which I am not, the conclusion of the Proper Officer was not an error of law. 81The issue then arises as to the effect, if any, of the error in the conclusion as to the criterion under s 62(1)(a) of the MAC Act. In order for an error of law (other than one on the face of the record in the common law sense) to occur that would allow an order in the nature of certiorari to issue, the error of law must be error expressed for the "ultimate determination": s 69(4) of the Supreme Court Act. 82A nice question arises on the construction of the term "ultimate determination". Does it mean the "final reasons for judgment" (i.e. excluding only interlocutory judgments for example admissibility of evidence etc) or does it mean "the effective reasons for the ultimate conclusion"? It is unnecessary to decide that question in this case. 83Given the Proper Officer's determination on the materiality criterion (i.e. that contained in s 62(1A) of the MAC Act), an error of law on the "additional relevant information" criterion (i.e. the criterion in s 62(1)(a) of the MAC Act) had no effect on the outcome of the referral. For the Court to quash the decision for error of law on the s 62(1)(a) criterion when, on the materiality criterion, a referral would not have been effected would be futile: Australian and International Pilots Association v Fair Work Australia [2012] FCAFC 65; (2012) 202 FCR 200 at 222, 229 and 242-243; Re Australasian Meat Industry Employees' Union, New South Wales Branch; Ex parte Metropolitan Meat Industry Board [1972] 1 NSWLR 259 at 262-263; Re Gee; Ex parte Malouf (1943) 43 SR (NSW) 195 at 201. 84In NRMA Insurance Ltd v Ainsworth [2011] NSWCA 292, the Court of Appeal upheld a discretionary refusal of prohibition and certiorari for error of law, where the amount that was subject to error was less than 4 per cent of the total award, even though the error may have required the whole award to be quashed. 85In this case, quashing the decision and remitting it back to the Proper Officer to be dealt with in accordance with law could not alter the result because of the Proper Officer's view of the "materiality" conclusion. 86For these reasons certiorari for error of law will be refused.

Conclusion 87The criteria in s 62(1)(a) and s 62(1A) of the MAC Act are not jurisdictional facts. The views expressed by me in Singh (No 1) and Singh (No 2) cannot stand following Rodger v De Gelder in the Court of Appeal. 88The Proper Officer's decision is not initiated by jurisdictional error in that it: does not misapprehend the nature or limits of its power; deals with the correct question; takes into account all relevant material; does not take account of irrelevant material; does not misunderstand the function to be performed; was not made in bad faith; and accorded procedural fairness. 89There is error of law on the issue of whether there is a ground of additional relevant information about the injury. That was the only error of law. The result would have been the same if the error were not made. The error was not determinative or operative. As a consequence, certiorari should not issue. 90For the foregoing reasons, the Court makes the following orders: (1)Summons dismissed; (2)No order for costs.

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