Singh v Motor Accidents Authority of NSW

The following injuries will be assessed in the further assessment: * Psychological injury

An officer of MAS will be in contact with you shortly to advise you of the details of any medical appointment(s) organised." Legislative provisions 11 A fundamental issue in these proceedings relates to whether the Proper Officer, was entitled to make (or had jurisdiction to make) any decision to the effect of the foregoing, and, whether, as a consequence, orders in the nature of prerogative relief will issue in relation to that decision or, alternatively, the further assessment. 12 It is necessary to set out the terms of s 60 and s 62 of MACA and the relevant provision of the Motor Accidents Authority Medical Guidelines ("the Guidelines"). 13 Sections 60 and 62 of MACA are 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.

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 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." 14 The Guidelines relevantly, provide: " Applications (MAS forms 4A and 4R) 14.1 An application by either party for further assessment of a medical dispute referred to in section 62(1)(a), or a reply to an application by either party, must: 14.1.1 be in the form approved by the Authority; or 14.1.2 be in a form as directed by the Registrar or Proper Officer; and 14.1.3 set out or be accompanied by the particulars and information required by that form or as otherwise directed by the Registrar or Proper Officer. …

Proper Officer determination 14.3 The Allocation Review of an application for further assessment is to be conducted in accordance with Chapter 9. 14.4 When conducting an Allocation Review of an application for further assessment pursuant to Chapter 9, the Proper Officer is to determine whether the application is suitable for referral for further assessment. 14.5 When determining whether a matter should be referred for further assessment under section 62(1)(a) whilst conducting an Allocation Review, the Proper Officer shall have regard to: 14.5.1 the application and any reply; 14.5.2 any other applications and replies and/or MAS certificates on this medical dispute or any other medical disputes at MAS in relation to the same claimant, not limited to the same matter, after the parties have been provided with a copy of these documents; and 14.5.3 the objects of the Act and the objects of MAS. 14.6 For the purposes of section 62(1A) the word 'material' includes that it is relevant and capable of altering the outcome of a dispute about: 14.6.1 reasonable and necessary treatment, from 'not reasonable and necessary' to 'reasonable and necessary' or vice versa; 14.6.2 related treatment, from 'not related' to 'related' or vice-versa; or 14.6.3 permanent impairment, from 'not greater than 10% whole person impairment' to 'greater than 10% whole person impairment' or vice-versa. 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.

Assessment of further applications 14.9 When the Proper Officer decides to refer a matter for further assessment, the Proper Officer shall determine how the application is to proceed in accordance with the provisions of Chapter 9 and, in particular, determine an appropriate Medical Assessor or Assessors to conduct the further medical assessment …." 15 Otherwise, I confirm the analysis of the overall operation of MACA, which I set out in Graham Kelly v Motor Accidents Authority of New South Wales and Anor [2006] NSWSC 1444; (2006) 46 MVR 553 at [9]-[15]. As to the function and procedure for medical assessments, I confirm my view, expressed in Garcia v Motor Accidents Authority of New South Wales [2009] NSWSC 1056; (2009) 54 MVR 102 at [8] and [13]. 16 Plainly, the outcome of a medical assessment is crucial to each disputant. It determines whether an injury is causally linked to a particular motor vehicle accident and, most relevantly for present purposes, the level of whole person impairment caused by the accident. That assessment will determine whether, if at all, a claimant is entitled to damages for non-economic loss. The determination of the assessment is a matter that fundamentally affects the rights of both the claimant before the Authority and any insurance company who may be respondent to such claim. 17 I turn then to the construction of s 62 of MACA. It is not suggested, nor could it be, that there has been a reference for further assessment by a court or claims assessor such as to enliven the provisions of s 62(1)(b). In this case, the third defendant relies upon a reference under and pursuant to the provisions of s 62(1)(a). The subsection is in unusual terms. 18 The preamble in s 62(1) provides that a matter "may be referred" on a further occasion and then, by paragraph (a) thereof, provides that the reference may be effected 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. As a consequence of that drafting technique, while the preamble to s 62(1) of MACA is seemingly in permissive (or facultative) terms, it is permissive of a party, relevantly, being able to refer a matter for further assessment, but only on limited grounds. 19 Thus, while the word "may" would ordinarily involve a discretion, in this case, the "discretion" to refer is reposed in the party and, once validly exercised, there is a requirement that the Authority undertake the assessment: see Re Coldham; Ex Parte Brideson [1989] HCA 2; (1989) 166 CLR 338 at 347-348. 20 MACA does not expressly require, or contemplate, a decision of the Authority, or any officer thereof, that the conditions precedent to the referral by a party have been met, assuming, for present purposes (but to be discussed later in these reasons), that the criteria in s 62(1)(a) and s 62(1A) of MACA are "conditions precedent". For relevant purposes, it is sufficient to note that both a claimant before the Authority and a respondent (including a relevant insurance company) are each parties to the medical dispute. 21 The terms of MACA contemplate that, subject to the satisfaction of one or more of the criteria in s 62(1)(a) of MACA, such a party is entitled, itself, to refer the matter for further assessment, without an intervening decision of the Authority or any officer thereof. There is the further condition imposed by s 62(1A) of MACA that the deterioration of the injury and/or the additional information must be material. 22 As such, there is a seeming inconsistency between the provisions of the Guidelines and the legislative provisions allowing a party, without decision of the Authority, to refer the matter for further assessment. This tension was the subject of comment by Davies J in De Gelder v Motor Accidents Authority of NSW [2009] NSWSC 1173 at [33]-[37]. Role of the Proper Officer 23 The provisions of s 60(2) and s 62(1B) of MACA require the referral for medical assessment (either initially or a further assessment) to be by referral to the Authority and for the Authority, through a designated staff member, to refer the matter to one or more medical assessors. For all practical purposes, there seems little or no difference in the operation of s 60(2) and s 62(1B) of MACA, even though they are worded slightly differently. The foregoing is not to suggest that the designated member of staff (referred to as the Proper Officer of the Authority, for the purpose of s 62(1B) of MACA) is the same person who would refer the matter on behalf of the Authority for the purpose of s 60(2) of MACA. 24 However, the referral to the Proper Officer is an administrative step designed to ensure that the reference by a party to the medical dispute, on the one hand, or a court or claims assessor, on the other hand, is programmed, in a listing or calendar sense, into the work of the Authority. 25 The role of the Proper Officer is to arrange the further medical assessment under s 62, which further medical assessment has, pursuant to MACA, already been referred. That role was described by Hoeben J as a function that is purely administrative, rather than judicial: Goodman v The Motor Accidents Authority of NSW and Anor [2009] NSWSC 875; (2009) 53 MVR 420. His Honour was there concerned with an argument that the Proper Officer was required to give reasons for the decision purportedly made under s 60(2) of MACA. 26 I accept, with great respect, the description by Hoeben J of the role of the Proper Officer, described above. The role contemplated by MACA for the Proper Officer (either under s 60 or under s 62) is a procedural role not an administrative or jurisdictional gateway through which the parties are required to pass. In particular, s 62(1B) of MACA deals with a reference, not only by the parties to the medical dispute, but also by a court or claims assessor. A reference by a court or claims assessor requires no precondition. Yet the task of the Proper Officer is identical, regardless of the source of the reference. 27 It is necessary, then, to deal with the tension between that role contemplated by MACA, and the terms of the Guidelines. 28 Earlier in these reasons for judgment, the Court recited the relevant parts of Chapter 14 of the Guidelines, relating to further assessment and review applications and, particularly, the terms relating to the role of the Proper Officer. There are a number of aspects of Chapter 14 of the Guidelines that are seemingly inconsistent with the functions of the Proper Officer (and the parties to a medical dispute) under s 62 of MACA. For example, clause 14.1 of the Guidelines refers to "an application … for further assessment". The parties to a medical dispute do not apply for a further assessment, they directly refer the matter for further assessment. Nevertheless, the Guidelines, appropriately, require such a referral to be in a prescribed form with the accompanying information that is required. It is unnecessary to deal with the terms of clause 14.2 of the Guidelines, but clauses 14.3, 14.4, 14.5, 14.6 and 14.7 are predicated on the basis that the parties apply to the Proper Officer for a reference for a further assessment and the Proper Officer decides whether a reference shall occur. 29 As earlier stated, the terms of MACA require the Proper Officer to undertake a procedural task equivalent to, in effect, the listing of the further assessment before a medical assessor. The Proper Officer is not given, by the terms of MACA, a decision-making jurisdiction as to whether the referral for a further medical assessment has been validly made, or, whether the conditions in s 62(1)(a) and s 62(1A) of the MACA have been satisfied. The foregoing does not require a result that the Proper Officer has no function to determine, or examine, the conditions in s 62(1)(a) and s 62(1A) of MACA. 30 A Proper Officer, being an officer of the Authority with an administrative function required by the terms of MACA, is required to be satisfied, before referring a matter for further medical assessment, that the terms of MACA have been properly invoked. But such a determination does not determine, authoritatively or otherwise, in a manner that binds the parties to the medical dispute (or a court or claims assessor), the validity of the referral by the party. 31 It is unnecessary to discuss any other aspect of the Guidelines and any seeming or arguable contradiction between the terms of the Guidelines and the terms of MACA. It is sufficient, for relevant purposes, for the Court to determine that it is permissible for the Guidelines to establish a procedure whereby the Proper Officer determines whether MACA requires a reference by the Proper Officer to a medical assessor. That is a determination as to whether the Proper Officer is required to perform the functions under s 60(2) and/or s 62(1B) of MACA. Certiorari issued to the Proper Officer 32 In the amended summons, the plaintiff seeks the issue of an order in the nature of certiorari, removing the decision of the Proper Officer of 9 March 2009. Some texts have suggested that a statutory provision (in this case, a reference for re-assessment) coming into effect in certain circumstances cannot operate unless someone decides that those circumstances exist: M Aronson, B Dyer, M Groves, Judicial Review of Administrative Action, 4th ed (2009) Lawbook Co at 69-70. This statement seems to be based upon the judgment of the Full Court of the Federal Court of Australia in Australian Postal Corporation v Forgie [2003] FCAFC 223; (2003) 130 FCR 279 ("Forgie"). I will return to the judgment of the Federal Court in Forgie. 33 Classically, in determining whether a writ of certiorari (or orders in the nature thereof) will issue against a person or body, the courts apply the "Atkin dictum", being the passage from the judgment of Atkin LJ (as he then was) in R v Electricity Commissioners [1924] 1 KB 171 at 205, in which his Lordship said: "Wherever any body of persons having legal authority to determine questions affecting the rights of subjects, and having the duty to act judicially, act in excess of their legal authority they are subject to the controlling jurisdiction of the King's Bench Division exercised in these writs." 34 The foregoing passage was a reference not only to the writ of certiorari, but also to the writ of prohibition. Further, the issue of certiorari is not confined to circumstances where a body acts in excess of its legal authority. Certiorari will issue for any error of law on the face of the record. Certiorari is here used to include an order in the nature of certiorari, pursuant to the terms of s 69 of the Supreme Court Act 1970. While it is not relevant at this stage of the proceedings, I reiterate that orders under s 69 of the Supreme Court Act will issue for an error of law on the face of the record, which term includes the reasons for judgment (see s 69(4) of the Supreme Court Act), but the error must be in the ultimate determination of the court or tribunal and only if that determination has been made on the basis of the error alleged (s 69(3) of the Supreme Court Act). 35 The overall effect of s 62 of MACA is that a party to the medical dispute (ignoring as irrelevant, for present purposes, a referral by a court or claims assessor) refers a matter for further medical assessment. The party does not make an application for a referral. In somewhat unusual terms, s 62(1B) of MACA specifies that the reference for further medical assessment is "by referral to" the Proper Officer. The statutory task of the Proper Officer is not to dismiss an application (cf Guidelines clause 14.7), but the Proper Officer is entitled to decide for herself or himself whether there has been a referral, i.e. whether the statutory conditions for a referral have been satisfied. 36 The effect of such a decision determines whether the Proper Officer will, thereafter, list what purports to be the referral of a matter for further medical assessment before a medical assessor. Such a decision does not require the Proper Officer to act judicially. The Proper Officer is not, as Hoeben J made clear in Goodman, supra, required to issue reasons for decision (at least pursuant to the statute), is not required (by the statute) to apply the rules of procedural fairness, and is performing a purely procedural task. That procedural task is required by the Act, if there has been a valid referral for a further medical assessment and the determination of whether the statutory requirements have been satisfied is a decision only for the purpose of ascertaining whether the statute requires the Proper Officer to preform that procedural task. 37 The mere fact, if it be the fact, that a task is purely administrative in nature does not preclude the issue of certiorari in an appropriate case. Thus, a determination by way of recommendation that is a procedural step antecedent to the ultimate decision may give rise, if appropriate error is disclosed, to the issue of prerogative writ. Examples abound of such circumstances and have included Royal Commissions, recommendations to Ministers and the like. The test for the issue of the writ is not whether the act that is challenged is administrative in nature, but whether the body or person that performs the challenged act is required to act judicially. 38 The approach taken by the Full Court of the Federal Court (Black CJ, Merkel and Stone JJ) in Forgie, supra, was that where the government, or an instrumentality thereof, is liable, if certain circumstances exist, but is not liable if other circumstances exist, then there is a necessary implication that a decision or determination must be made by a person with authority to make it: see Forgie, supra, at [9], [10] and [43]. That principle, with which I do not cavil, is based upon the proposition that the liability of the Commonwealth, or in that case Comcare, dependent, as it was, on particular circumstances, must require the Commonwealth or that instrumentality to make a decision. The Federal Court was there concerned with whether a decision had been made, which was amenable to a review under the Administrative Decisions (Judicial Review) Act 1977 (Cth). 39 However, in the present situation, liability is not sheeted home to government, but to a respondent (or its insurer) and liability depends upon the medical assessment, not the reference for a further medical assessment. Moreover, it is the parties to the medical dispute that are given the capacity to refer the matter for further medical assessment. In those circumstances, the rationale in Forgie is inapplicable. 40 Many examples exist of non-self-executing decisions (and/or recommendations) that have been held to be amenable to prerogative relief: see Ainsworth v Criminal Justice Commission [1992] HCA 10; (1992) 175 CLR 564; (1992) 66 ALJR 271; Mahon v Air New Zealand [1984] AC 808; Police Integrity Commission v Shaw [2006] NSWCA 165; (2006) 66 NSWLR 446. 41 On the view that I have taken of the role of the Proper Officer, the Proper Officer is not required to act judicially, is required to take a purely procedural step and does not, of herself or himself, make a decision that affects the rights of any of the parties. The procedural decision to organise a further medical assessment (or to refuse to organise such an assessment) is not effective to alter the rights of the parties, which are granted, or not granted, by the MACA, not the decision of the Proper Officer. The rights of the parties are conferred by the provisions of s 62(1) and s 62(1A) of MACA and not otherwise. And, subject to the later comments in these reasons, those rights would be enforceable, regardless of the "decision" of the Proper Officer. 42 The foregoing does not mean, as previously stated, that the Proper Officer is incapable of making a decision. As the previous analyses of MACA make clear, the process undertaken, through medical assessment and claims assessment, is intended to be informal. A decision of the kind seemingly required by the Guidelines may be accepted by each of the parties, even if initially disputed, because an independent person has considered the issues that exist between the parties. However, the legal rights of the parties are not dependent upon that decision. 43 In short, for the foregoing reasons, I find that certiorari will not issue in relation to the decision of the Proper Officer of this kind and, in particular, the decision of the Proper Officer, of 9 March 2009, is not amenable to certiorari, or orders in the nature thereof. That finding does not finalise the proceedings and does not determine whether orders, other than certiorari, might issue that determine the rights of the parties. Such a conclusion depends upon whether the conditions imposed by MACA on a referral for a further medical assessment are "jurisdictional facts". Jurisdictional facts 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. 50 In the present circumstances, s 62 allows a party to refer for further medical assessment "only on the grounds of the deterioration of the injury or additional relevant information about the injury". On one view of the expression utilised in s 62(1)(a), the condition precedent to the referral for re-assessment is that it be based upon (i.e. on the grounds of) deterioration of the injury (hereinafter "deterioration") or additional relevant information about the injury (hereinafter "additional information"). 51 On the foregoing view, as long as a party to the medical dispute based the referral for re-assessment on one of those two grounds, the referral occurred. And, on that basis, MACA did not require the objective existence of a deterioration in the injury or additional information, only the existence of grounds alleging same. The difficulty with such an approach is the express limitation in s 62(1A) of MACA. The provisions of s 62(1A) disentitles a party to the medical dispute from referring the matter for re-assessment on one or other of the grounds "unless the deterioration or additional information is such as to be capable of having a material effect on the outcome of the previous assessment". 52 Plainly, s 62(1A) requires the satisfaction of a precondition and that precondition is the objective fact that the deterioration or additional information has a material effect on the outcome of the previous assessment. Further, the terms of the sub-section, particularly the use of the definite article to describe deterioration or additional information, lead inexorably to the conclusion that it is only the objective existence of a deterioration and/or additional information that is capable of grounding a reference in s 62(1)(a) of MACA. 53 I am of the view that the objective existence of a deterioration of the injury and/or additional relevant information is the criterion that is necessary to enable a party to the medical dispute to refer the matter again for medical assessment. The absence of both of those criteria would invalidate any purported reference for a re-assessment, and if the criterion upon which the party relied is not capable, objectively, of having a material effect on the outcome of the previous assessment, that too would preclude a reference. 54 As a consequence, the existence, objectively, of a deterioration of the injury or, alternatively, additional relevant information about the injury, is a "jurisdictional fact" the non-existence of which precludes and/or invalidates any purported reference by a party to the medical dispute. Further, if the deterioration or additional information is not such as to be capable of having a material effect on the outcome of the previous assessment, that too is a "jurisdictional fact", the absence of which would preclude and/or invalidate any reference for a medical re-assessment. Conclusion 55 There are three criteria that must be satisfied before there can be a referral for a further medical assessment by a party to the medical dispute. Those criteria are:

(i) one of: (a) a deterioration of the injury sought to be re-assessed; or

(b) additional relevant information about the injury; and

(ii) that the deterioration or additional information is such as to be capable of having a material effect on the outcome of the previous medical assessment. 56 The foregoing does not, obviously, include a reference by a court or claims assessor, but, in relation to a reference by a party to the medical dispute, the above criteria must objectively exist. It is insufficient for the party that seeks the reference (or another party) to have a view, even a reasonable view, of the existence of the relevant criteria. Obviously, without such a view, and possibly without a reasonable view, no such application would be made. But it is the objective existence of the criteria that preconditions the referral. 57 Having decided, as I have, that the Proper Officer is not, in a decision of the kind here reached, amenable to certiorari, the question arises as to whether the Court has available to it an appropriate remedy, or should exercise any jurisdiction that it may have to effect a remedy. 58 This issue was discussed by Gaudron J in City of Enfield, supra, in the following terms: "[56] Those exercising executive and administrative powers are as much subject to the law as those who are or may be affected by the exercise of those powers. It follows that, within the limits of their jurisdiction and consistent with their obligation to act judicially, the courts should provide whatever remedies are available and appropriate to ensure that those possessed of executive and administrative powers exercise them only in accordance with the laws which govern their exercise. The rule of law requires no less.

[59] Once it is appreciated that it is the rule of law that requires the courts to grant whatever remedies are available and appropriate to ensure that those possessed of executive and administrative powers exercise them only in accordance with the laws which govern their exercise, it follows that there is very limited scope for the notion of 'judicial deference' with respect to findings by an administrative body of jurisdictional facts. Of course, other considerations apply with respect to non-jurisdictional facts for there is no legal error involved if an administrative body simply makes a wrong finding of fact. And, again, different considerations apply where what is in issue is not a jurisdictional fact, but the decision-maker's opinion as to the existence of that fact. In that situation, the question is whether, on the available material, it was reasonably open for the decision-maker to form the opinion in question.

[60] Where, as here, the legality of an executive or administrative decision or of action taken pursuant to a decision of that kind depends on the existence of a particular fact or factual situation, it is the function of a court, when its jurisdiction is invoked, to determine, for itself, whether the fact or the factual situation does or does not exist. To do less is to abdicate judicial responsibility. However, there may be situations where the evidence before the court is the same or substantially the same as that before the primary decision-maker and minds might reasonably differ as to the finding properly to be made on that evidence. In that situation a court may, but need not, decline to make a different finding from that made by the primary decision-maker, particularly if the latter possesses expertise in the area concerned. Even so, in that situation, the question is not so much one of 'judicial deference' as whether different weight should be given to the evidence from that given by the primary decision-maker." 59 In the current situation, there is no administrative or judicial body that is determining the existence, or otherwise, of the jurisdictional facts that precondition the medical re-assessment, or, more accurately, the reference for a medical re-assessment. Nevertheless, the approach, at least, must be no less stringent than the attitude outlined by Gaudron J and recited above. 60 Further, as has been made clear by the High Court in Kirk v Industrial Relations Commission; Kirk Group Holdings Pty Ltd v WorkCover Authority of New South Wales (Inspector Childs) [2010] HCA 1; (2010) 239 CLR 531; (2010) 84 ALJR 154, Chapter III of the Constitution (particularly s 73 thereof) requires that there be a Supreme Court of New South Wales with a defined characteristic to confine inferior courts and tribunals within the limits of their authority by the grant of certiorari, prohibition and/or mandamus: see Kirk, supra, particularly at [55], [93], [95], [96] and [98]. (It is unnecessary to discuss whether an error of law, fundamental to the determination of a court or tribunal, is, on that account, jurisdictional and cannot be protected from the supervisory jurisdiction of the Court: see Kirk at [100].) 61 Nevertheless, the medical assessor who would, without appropriate order from this Court, issue an assessment that would, pursuant to the terms of s 62(2) of MACA, prevail over any previous certificate, must be required to exercise jurisdiction, if the reference were made and the jurisdictional preconditions were satisfied; and must be restrained from exercising jurisdiction, if a referral were purportedly made that does not satisfy the statutory jurisdictional criteria, outlined above. 62 Of course, the Court would continue to have available any discretion, otherwise inherent in the nature of relief sought, in determining whether or not to issue prerogative relief, particularly certiorari or mandamus. But whether or not a particular order in the nature of a particular prerogative relief is discretionary, or there exists a residual discretion in the Court, is not a matter that is currently before the Court. 63 On the foregoing basis, the Court takes the view that the Authority (including the Proper Officer or a medical assessor to which a matter is purportedly referred) is amenable to prohibition, preventing the conduct of an assessment (or the referral to a medical assessor for the conduct of an assessment) where the jurisdictional preconditions have not been satisfied. Likewise, the Authority (including the Proper Officer) would be amenable to mandamus to require the organisation of a further medical assessment by a medical assessor, in circumstances where the jurisdictional preconditions have been met. 64 The Court finds and determines:

(i) Certiorari will not issue against the Proper Officer in relation to his decision of 9 March 2009;

(ii) Prohibition is capable of being issued, directed to the Motor Accidents Authority, to the Proper Officer and/or to a medical assessor (if one had been appointed) restraining them from dealing with a purported reference for further medical assessment, if the Court determines that the criteria in s 62(1)(a) have not been satisfied or the condition in s 62(1A) has not been satisfied;

(iii) Each of those criteria are jurisdictional facts and will give rise to the issue of orders in the nature of prerogative relief of the kind already mentioned. 65 The Court will list for hearing, and the issue of final orders, the determination of whether the aforesaid criteria have been satisfied. As a consequence, the remainder of the hearing will determine whether orders sought in paragraphs 1 and 3 of the amended summons, in these proceedings, or other appropriate or ancillary orders will issue.

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