26 Before proceeding to address the various arguments that have been litigated by the plaintiff, it seems to me that I should first address the issue which I regard as being decisive in this case (it was an issue ventilated by the second defendant).
27 It seems to me that these proceedings can be disposed of by having regard to discretionary considerations. The plaintiff stood by and allowed the further assessment to be made. She did not decide to take action in respect of her complaints until after she had received a result which brought about a substantial reduction in the assessment of the whole person impairment. By operation of statute, the Certificate of the second Assessor prevailed over its predecessor. She had an adequate alternative statutory remedy (by way of review to a Review Panel pursuant to s63) to challenge the further assessment. Rather than pursue the statutory remedy, she has come to this Court. In the circumstances, I do not consider that the Court should exercise the discretionary power that it has in her favour (see, inter alia, Boral Gas (NSW) Pty Limited v Magill (1993) 32 NSWLR 501).
28 The alternative statutory remedy was one that would have offered her quicker determination. It could have been brought immediately following the decision of the second Assessor and the review may have been concluded well before the bringing of these proceedings (there was in fact a delay of about five months before the plaintiff brought these proceedings). A remedy by way of judicial review may still have been available to her in the event that she was unhappy with a decision from the Review Panel.
29 Further, it seems to me that the review process was a more satisfactory remedy. The complaints of the plaintiff concerning the second assessment involved allegations of error in the assessment process and concerned, inter alia, matters which were dependant upon particular or technical knowledge of medical specialists (including whether or not the Medical Assessment Guidelines had been met). I shall briefly mention some of these matters in due course.
30 Whilst what has been said suffices to dispose of these proceedings, in deference to what has been argued by Counsel, I will briefly deal with other matters that were argued.
31 However, before proceeding further, I should observe that I am not satisfied that the decision of the Proper Officer failed to take into account relevant objects of the Act.
32 It was common ground that the Act itself did not impose any statutory obligation to give reasons. The case for the plaintiff is that such an obligation should be imported and reference was made to Campbelltown City Council v Vegan [2006] NSWCA 284.
33 In this case, the function performed was administrative rather than judicial. In these circumstances the authorities reveal that, generally speaking, no such obligation can be imported from the general law. The justification for an obligation to give reasons is derived from the right of appeal granted in relation to an exercise of judicial power. As was said by Basten JA in Vegan, at paragraph 106, the decision in Osmond v Public Service Board [1984] 3 NSWLR 447 "remains the law in this country".
34 In Riverina Wines Pty Ltd v Registrar of the Workers Compensation Commission of NSW [2007] NSWCA 149 the similar position of the Registrar, or his or her Delegate, in the regime established by the WIM Act (s327) was considered by the Court of Appeal. It was held that there was no need for reasons in respect of a decision which allowed an application to appeal to proceed. The reasoning relied on was that such a decision did not finally determine rights. What was being done was to allow the matter to go forward to a body that did make a final determination (the Appeal Panel).
35 I have earlier set out clauses 8.4 and 8.5 of the Medical Assessment Guidelines. It seems to me that these provisions evince a clear intention that the Proper Officer is not obliged to give reasons where a decision is made to refer a matter for further assessment (a notice setting out brief reasons for the decision is required only where the application is refused).
36 For all these reasons, I consider that the Proper Officer was not obliged to give reasons for her decision.
37 I leave aside the question of whether or not sufficient reasons were in fact given in this case. It seems to me to be arguable that the second paragraph of the letter from the Authority did in fact sufficiently disclose the Proper Officer's reasoning process (it can be inferred that the material contained in the application was determined to meet the requirement of "additional relevant information about the injury").