RACQ Insurance Ltd v Motor Accidents Authority of NSW

EX TEMPORE Judgment 1I am hearing an application for judicial review of a decision of Assessor Richard Buckley of the Claims Assessment and Resolution Service of the Motor Accidents Authority. Mr Buckley's s 94 certificate and the reasons supporting it have been received in evidence as exhibit A. They are contained behind tab 5 in what is referred to as the court book. I have marked the whole of the court book MFI 1. 2So far this morning we have taken up a bit of time arguing about what other material is properly admissible, having regard to the decision of the Court of Appeal in Allianz Insurance Limited v Kerr (2012) 60 MVR 194 (at [13]-[20] per Basten JA). 3The plaintiff's case relies upon both error on the face of the record and jurisdictional error. To the extent to which the former category is advanced, his Honour's decision makes it quite clear that the materials to which the Court may properly have regard are restricted to the record. The certificate itself, the reasons by virtue of s 69(4) of the Supreme Court Act 1970, and the initiating process are receivable but not the evidence and other material which was placed before the assessor. 4In respect of the category of jurisdictional error, the plaintiff may introduce all relevant evidence capable of establishing the relevant error. As Basten JA said in Kerr at [15]: "Jurisdictional error may be established by any admissible evidence relevant for that purpose". 5The errors relied upon by Mr Bowen of counsel, who appears for the plaintiff, fall under two broad categories. The first is the assessment the assessor made of the plaintiff's life expectancy; she was at the date of the assessment in her seventies. The second is about the allowance made for non-economic loss damages. 6The material contained in MFI 1, apart from the reasons, include the pleadings and the submissions of the parties in this court. No objection is taken to them being conveniently placed in the court book. 7There are also two affidavits of Mr Dallas Campbell the solicitor for the plaintiff; an affidavit of his opposite number, Lee Flanagan; and medical reports: three from Dr Slezak, which were before the assessor; one from Dr Burdon, which was before the assessor; and two from Dr Ebenezer. Of the reports of Dr Ebenezer only the first dated 30 March 2011 was before the assessor, the second dated 20 June 2013 was not placed before him, although it was referred to by implication in the submissions that were advanced by the insurer in writing dated 27 September 2013. They are behind tab 17 MFI 1. 8It is evident from the affidavit of Mr Campbell that an attempt is made to demonstrate an error of what is said to be a material fact made by the assessor relating to what material Dr Slezak had before him. That material is entirely extrinsic or perhaps extraneous because it is not referred to by Dr Slezak in his reports, as Mr Bowen concedes. If I may paraphrase, as is often put in this context it cannot be an error for the assessor to act in ignorance of material that was never drawn to his attention. To that extent I will reject the affidavit of Mr Campbell. In my judgment, showing that there was material not referred to by Dr Slezak which might have made a difference to the assessor's decision, does not fall into the category of jurisdictional error. As I've said it's no error at all, in my judgment, and, accordingly, that material is not relevant. 9Mr Rowe of counsel who appears, with Mr Darvall, for the defendant argues that the submissions for the plaintiff are put narrowly, and in truth can be identified only as errors on the face of the record, to the extent to which it is said the assessor failed to apply the decision of the Court of Appeal in Reece v Reece (1994) 19 MVR 103 and erroneously, according to the plaintiff's case, applied the statement of Dixon J, as his Honour then was, in Lee Transport Co Ltd v Watson (1940) 64 CLR 1 at 14. Mr Rowe says these are clearly, if they are errors, made on the face of the record and by force of Kerr, no further evidence should be admitted. 10Mr Bowen puts it more widely. He reminds me that the same matter may constitute an error on the face of the record and jurisdictional error. To the extent to which it is jurisdictional error for the assessor to have awarded the sum he did, the plaintiff is entitled to make its case good by putting in evidence at least the relevant material that he had before him for consideration by this Court. 11Specifically in relation to Dr Ebenezer's second report, referred to in his submissions to the assessor, he says that it was jurisdictional error for the assessor not to appreciate that it existed, and not to call for it to be tendered prior to making his decision, and in that regard, I should receive the evidence for the purpose of assessing its potential dispositive effect, as I understand the argument. 12Although it's not articulated this way, as I understand what Mr Bowen said in the course of his argument, there is a flavour about the plaintiff's case that the assessment made of non-economic loss was "manifestly unreasonable". Manifest unreasonableness is of course jurisdictional error where it is made good. The plaintiff's argument depends upon two things: first, it depends upon impugning on administrative law principles the assessment the assessor made of the plaintiff's life expectancy, and obviously that is a consideration material to the amount that should be awarded for non-economic loss; and secondly, in any event, and as I understand the argument, it is said that even if one accepts every finding the assessor made, the result arrived at was manifestly unreasonable. To that extent, the two issues are not interdependent. 13In deciding this question of admissability, I bear firmly in mind the nature of the jurisdiction which I'm asked to exercise. I call to mind what was said by Tate JA in Easwaralingam v Director of Public Prosecutions [2010] 208 A Crim R 122 (at [25] Buchanan JA agreeing): an application for certiorari is not the same as a general appeal for error of law, most importantly, because it falls to be determined on the basis of different material. An application for certiorari does not invite a scouring of all the evidence before the inferior court to determine whether the proper inferences were drawn from it or whether an item of evidence was overlooked. 14Moreover, administrative law is concerned with keeping administrative decision-makers within the proper limits of power. A decision-maker like an assessor under the Motor Accidents Compensation legislation, in common with other administrative decision-makers, has, as it is sometimes put, the right to go wrong within jurisdiction. 15Bearing these limitations upon the Court's power in mind, I reject the tender of Mr Campbell's affidavits as well as the affidavits of Mr Flanagan. They seem to go to issues which invite me to go beyond not just the record but material that was in fact placed before the assessor. In some circumstances, the nature of the jurisdictional error might permit such evidence to be admitted. One can readily see, for instance, that if the ground alleges a breach of the rules of natural justice, extraneous evidence tending to demonstrate that a party received no notice of the hearing date, for instance, would be clearly admissible. But as I have previously remarked, it can't be an error for the tribunal to act in ignorance of material it never received. Accordingly, I will reject the affidavit evidence in its present form. 16That leads me to also reject the second report of Dr Ebenezer behind tab 13 of MFI 1. I might observe in passing as I did in discussion with Mr Bowen that that report, as I understand it, supports the decision made by the assessor rather than being against it. For instance, he expresses agreement with Dr Burdon whose evidence the assessor accepted. He says, as Mr Bowen's submissions pointed out, that the claimant does not suffer from any significant lung disease, and moreover, he says, "I do not find any evidence to support the notion that she might be suffering from progressive lung injury due to cigarette smoking". 17So far as the evidence before the assessor is concerned, that is to say the three reports of Dr Slezak, the first report of Dr Ebenezer and the report of Dr Burdon, it seems to me that I need to examine those documents to the extent to which counsel refer me to them for the purpose of deciding whether or not the assessor committed jurisdictional error in his treatment of the reports of Dr Slezak which he rejected as to life expectancy. Those reports are behind tabs 9, 10, and 11, I will admit them as exhibit B. I also admit the report of Dr Ebenezer of 30 March 2011 as exhibit C behind tab 12; and the report of Dr Burdon behind tab 14 as exhibit D. 18The tender of the other evidentiary material contained within MFI 1 is rejected.