Submissions on behalf of Zurich
29 It was common ground that Zurich could not bring itself within s92(1)(a) of the Act. For Zurich to be successful in having the second defendant's claim made exempt from assessment under Part 4.4, it had to have a determination that the claim was unsuitable for assessment under s92(1)(b).
30 Zurich submitted that the words "the assessment … under s92 … "in para 16.1 of the guidelines included a determination by a claims assessor that a claim was suitable for assessment under Part 4.4 and that consequently a certificate had to be issued with a statement of reasons as required by para 16.3. This had clearly not happened. As a result the determination by the assessor was void for failure to comply with the guideline. It followed that the approval by the PCA was also a nullity.
31 I do not agree with this interpretation of Chapter 16 of the guidelines. It seems to me that the "certificate under section 92(1)(b)" in para 16.3 of the guidelines refers to the preliminary assessment and determination that the claim is not suitable for assessment under Part 4.4. That is the only assessment specifically referred to in s92. Unless the assessment was of that kind then Chapter 16 of the guidelines does not require a certificate to issue and does not require compliance with para 16.3.
32 I appreciate that the very concept of "assessment" envisages a balancing of outcomes. If the word "assessment" as used in s92 were unqualified then the argument put on behalf of Zurich would have considerable force. That, however, is not how s92 operates.
33 Section 92 in its terms refers to one kind of assessment only, ie a preliminary assessment with a determination that the claim is not suitable for assessment under Part 4.4. Unless the assessment is of that kind, it is not an assessment under s92 which only refers to claims which are exempt from assessment under Part 4.4.
34 No assistance is provided for Zurich's application by Chapter 16 of the guidelines.
35 It was submitted on behalf of Zurich that there was jurisdictional error or an error of law on the face of the record on the part of both the claims assessor and the PCA because neither of them carried out the functions required of them under s92(1)(b) of the Act and by Chapter 4 of the guidelines, in particular paras 4.17 and 4.23 thereof.
36 That submission was elaborated as follows. Insofar as the assessor was concerned, he had made an assessment but no determination as required by the Act. Even the assessment was flawed in that he had not had regard to the matters in para 4.23 of the guidelines and had not had regard to all of the heads of damage which would be affected by the causation finding of the medical assessor if it were allowed to stand. In relation to the PCA it was submitted that the concept of "approval" in s92(1)(b) required an independent assessment and determination by the PCA. This was also required in terms by paras 4.17 and 4.23 of the guidelines. Rubber-stamping the assessment of an assessor was not sufficient. An independent function had to be performed by the PCA.
37 In relation to the PCA it was submitted that exhibit D, which was the "Determination Review Form", relating to the second defendant, was not completed which indicated that the PCA had not had regard to the matters contained in it. In addition the purported certificate issued by the PCA indicated jurisdictional error in its failure in terms to address the matters required to be considered in para 4.23 of the guidelines.
38 The start point for a consideration of these submissions is s92 of the Act. Section 92(1) is structured so as to mandate exemption where required by the regulations or the guidelines under (a) whilst allowing a discretion in other cases.
39 The claims assessor's discretion under s92(1)(b) is broad with no express fetter and is capable of being exercised at his or her own instigation. The fact that the decision requires "the approval" of the PCA reflects the intention of the Act that the primary means of assessment and resolution of disputed claims (excepting prescribed categories of cases) is the claims assessment system in Part 4.4. Absent the criteria prescribed under s92(1)(a) it is for the claims assessor with the concurrence of the PCA to determine what is not capable of resolution within that system.
40 What needs to be understood is that s92 identifies those claims which are exempt from assessment and procedures to be followed in relation to them but says nothing about what process (if any) is to be followed with respect to claims which are assessed as suitable for assessment under Part 4.4 of the Act.
41 Section 92(1)(b) refers to "a preliminary assessment of the claim". This is not defined. In the guidelines it is contrasted with the term "general assessment". From the way in which it is used in the Act it is obviously something less than the sort of assessment envisaged by s94. I do not regard the phrase as a term of art, but take it to have the ordinary meaning which its words convey, ie an assessment which is of its nature based on incomplete information and which is conducted at an early stage in an application.
42 Chapter 4 of the guidelines needs to be considered in that context. As a start point the guidelines appear to draw a distinction between the issuing of a "Certificate of Exemption" when s92(1)(a) is relied upon for exempting a claim and the issuing of "a preliminary determination that the matter is not suitable for assessment" when dealing with the exemption of a claim under s92(1)(b). That distinction appears to be maintained in para 4.25 of the guidelines.
43 As the Application for Exemption form completed by Zurich makes clear, its application was for a preliminary determination that the matter was not suitable for assessment as provided by para 4.11 of the guidelines. The application was addressed to the Authority and not to the Claims Assessor. This would seem to confirm that the application was made in accordance with para 4.11 and not 4.19 of the guidelines and was the sort of application envisaged by s88(2) and s90 of the Act.
44 The use of the words "preliminary determination" in the guidelines is not particularly helpful since it appears to telescope the two concepts referred to in s92(1)(b), ie "a preliminary assessment" and a determination that the claim is not suitable for assessment under Part 4.4. That, however, appears to be what para 4.11 of the guidelines envisages.
45 Para 4.12 of the guidelines imposes a mandatory requirement that a specific form be completed and that it be completed in a certain way. It is mandatory that the form "set out or be accompanied by such particulars and information as may be required by that form".
46 In para 8 of the form completed by Zurich (p 159 of exhibit C) the two boxes ticked referred to the following matters:
"The matter involves complex issues in the assessment of quantum or the value of the claim - provide a summary of the issues about quantum or the value of the claim and a brief statement explaining why you say they are complex."
"The matter involves complex issues in respect of the relationship between any other accident, injury or condition and this accident and the injury sustained in it - attach a copy of any relevant medical reports and provide a summary of the issues and a brief statement explaining why you say they are complex."
47 As indicated, the form was accompanied by five pages of submissions which focused upon the causation issue apparently raised by the medical assessor's reports and the reports of Dr Potter and the need for Zurich to be able to conduct further investigations into that issue. No other matters were relied upon. This is important because para 8 of the form listed all the matters in para 4.23 of the guidelines. What para 8 as completed by Zurich made clear, was that Zurich was only relying upon two of the matters referred to in para 4.23 of the guidelines, ie 4.23.4 and 4.23.6.
48 As I read Chapter 4 of the guidelines, there is a distinction between an application for a preliminary determination under para 4.11 and under 4.19. An application under 4.11 has to follow the procedures specified in 4.12, 4.13, 4.14, 4.15, 4.16 and 4.17. An application under para 4.19 does not. As I read Chapter 4 of the guidelines, an application under para 4.19 could be made orally and informally. Paras 4.19, 4.20, 4.21 and 4.22 of the guidelines make provision for what happens in that latter circumstance.
49 The claim by Zurich, however, was made pursuant to para 4.11 of the guidelines. That being so, it was necessary, in accordance with para 4.17 of the guidelines, for the PCA to consider the application and make a determination within a specified time. It is clear from the use of the word "determination" in para 4.17 of the guidelines that it envisages one of two results, either that the matter was unsuitable for assessment under Part 4.4 of the Act, or that it was suitable for such assessment. The guidelines say nothing about the consequences of the latter determination, ie that the matter was suitable for assessment under Part 4.4. The guidelines only deal with the consequences of a finding as to unsuitability for assessment.
50 There also seems to be some tension between para 4.17 of the guidelines and s92 of the Act. Although the word "only" is not used in s92, the scheme of the Act would seem to suggest that the only way in which a claim is exempt from assessment under Part 4.4 of the Act is if one of the two limbs of s92 have been satisfied. Para 4.17 of the guidelines if read literally suggests a third limb, ie a determination by the PCA that a matter is unsuitable for assessment under Part 4.4 without any contribution from the claims assessor.
51 Quite clearly the guidelines are to be read subject to the Act. It is possible to reconcile para 4.17 of the guidelines with s92 in that the second sentence in para 4.17 makes specific reference to an assessment "under s92(1)(b)". This would suggest that if the PCA made a determination that a matter was unsuitable for assessment under Part 4.4 of the Act then the assessor would have to become involved and perform the specific functions referred to in subs 92(1)(b) for the subsection to take effect.
52 It is for that reason, it seems to me, that para 4.23 requires both an assessor and the PCA to have regard to the circumstances of the claim, including the specific matters set out therein when determining whether a matter is not suitable for assessment.
53 Against that background the scheme of the Act in relation to exemptions from assessment seems to be tolerably clear. Most claims will be assessed in accordance with Part 4.4 of the Act. There will be some claims which are exempt from assessment, but they will be in the minority and be the exception. Lest such exemptions be granted too freely (and thereby defeat the objects and purpose of the Act) strict requirements are imposed before a claim is exempt from assessment. In the case of an exercise of a discretion by an assessor, that requires the approval of the PCA before a certificate of exemption can issue. It follows that if a party to a claim wished to challenge a certificate of exemption, or a determination that a matter was not suitable for assessment under Part 4.4, it could do so for failure to follow the procedure set in place for the granting of such exemptions from assessment. What is less clear (as has arisen here) is what can be done by a party which is aggrieved because either a certificate of exemption from assessment has not been granted or a determination as to non suitability has not been made.
54 The scope for intervention by this Court with regard to administrative decision making is limited. For Zurich to be successful in establishing jurisdictional error it has to bring itself within the principles in Craig v South Australia (1985) 184 CLR 163 at 179:
"If … an administrative tribunal falls into an error of law which causes it to identify a wrong issue, to ask itself a wrong question, to ignore relevant material, to rely on irrelevant material or, at least in some circumstances, to make an erroneous finding or to reach a mistaken conclusion, and a tribunal's exercise or purported exercise of power is thereby affected, it exceeds its authority or powers. Such an error of law is jurisdictional error which will invalidate any order or decision of the tribunal which reflects it."
55 Zurich submits that at most the memorandum by Mr Flynn to the PCA of 20 March 2006 provides a preliminary assessment of the claim but does not contain a determination and consequently has not complied with the requirements of s92(1)(b) of the Act. As indicated above, I am not persuaded that where a claims assessor has made a preliminary assessment that a matter is suitable for assessment under Part 4.4 that subs 92(1)(b) has to be complied with.
56 If I am wrong in that conclusion, it seems to me that Mr Flynn in his memorandum of 20 March 2006 has in fact made a preliminary assessment and has made a determination. The memorandum comprehensively reviewed the arguments which had been put before him on behalf of Zurich and reached a conclusion in relation to them. That it seems to me is all that is required by the word "determined" as used in s92(1)(b), ie that the decision maker has in fact made a decision. Accordingly, I reject the submission by Zurich that in the memorandum of 20 March 2006 Mr Flynn did not make a preliminary assessment and a determination.
57 Zurich also submitted that jurisdictional error had occurred in that the assessor had ignored relevant material and had asked himself the wrong question by failing to have regard to the matters referred to in para 4.23 of the guidelines. It was submitted that the same jurisdictional error had occurred when the PCA issued her certificate in that she had uncritically approved the assessor's defective approach and had herself failed to comply with the requirements of both the Act and the guidelines. This was because she had not carried out an independent assessment, such as was required by the use of the word "approval" in subs 92(1)(b) and she had not independently had regard to the matters referred to in para 4.23 of the guidelines.
58 It is clear from the combination of paras 4.17 and 4.23 of the guidelines that the PCA has to make a determination within a specified time limit. Para 4.17 envisages two possible outcomes although it only makes provision for certain steps being taken if the determination is that the matter is unsuitable for assessment. Since para 4.23 of the guidelines uses the word "determining" it seems to me that a determination by both the assessor and the PCA has to have regard to the specific items identified in the sub-paragraphs of para 4.23. In that regard I accept the submission on behalf of Zurich.
59 I do not accept, however, that compliance with guideline para 4.23 requires both the assessor and the PCA to specifically refer to each sub-paragraph in 4.23 by way of indicating that he or she has had regard to it.
60 Para 4.23 needs to be read with para 4.12. As indicated, the form by which the application was brought listed all of the sub-paragraphs in para 4.23. It was then up to the applicant (as required by para 4.12) to "assist the assessor" by setting out the particulars and information required by the form. What is envisaged and what happened in this case was that two specific sub-paragraphs of para 4.23 were identified on the form as being relied on, ie 4.23.4 and 4.23.6. It was to these sub-paragraphs that the applicant's submissions were addressed. It was these sub-paragraphs and the submissions in relation thereto which were specifically considered by the assessor.
61 The words used in para 4.23 are "have regard to the circumstances of the claim at the time of assessment including" the various sub-paragraphs in 4.23. It seems to me that an assessor "has regard" to those sub-paragraphs when he or she reads the form by which the application has been brought, in particular para 8 of the form, and having checked the various sub-paragraphs of para 4.23 there referred to, sees that two in particular have been identified as providing the basis for the application.
62 This is what the assessor clearly did, as can be seen from his email of 20 March 2006 to the PCA. I do not consider that the assessor had to do anything more to comply with para 4.23 of the guidelines.
63 This is particularly so when the challenge is one that relates to the formation of an opinion by an administrative tribunal (Buck v Bavone (1976) 135 CLR 110 at 118-119.) It also needs to be kept in mind that neither the assessor nor the PCA is obliged to give reasons for his or her determination. The primary requirement in para 4.23 of the guidelines is that regard be had to the "circumstances of the claim". This it seems to me carries the meaning that only so many of the sub-paragraphs of para 4.23 as are engaged by the "circumstances of the claim" need to be considered by the assessor. The particular sub-paragraphs of para 4.23 which were relevant as "circumstances of the claim" were those identified and relied upon by the plaintiff in its application.
64 The situation is the same in relation to the PCA. I accept that she had to make a separate determination as required by paras 4.17 and 4.23 of the guidelines. There is nothing to suggest that the "certificate" issued by the PCA (para [14] hereof) was anything other than a separate determination by her. The fact that exhibit D had not been filled out is at best neutral. Once it is accepted that the PCA carried out a separate determination the same considerations apply as they did to the determination of the assessor. I consider the "certificate", which refers to the assessment conducted by the PCA on 27 March 2006, is a sufficient compliance on its face with both paras 4.17 and 4.23 of the guidelines.
65 There is nothing in s92(1)(b) nor in s105(3) of the Act which would lead to a contrary conclusion. In fact s105(3) is irrelevant to the matters under consideration. That subsection is in terms unrelated to the decision making functions of the assessor.
66 Two further challenges were made by the plaintiff to the form of the assessor's determination of 20 March 2006. It was submitted that the assessor had applied the wrong test under sub-paras 4.23.4 and 4.23.6 of the guidelines when he determined:
"The issue in respect of the medical evidence is not such that requires it being too complex and prevents it from being suitable for assessment."
67 It was submitted that the use of the words "too complex" involved a concession that the issues were complex. Once that determination was made the assessor should have determined that the matter was not suitable for assessment under Part 4.4 of the Act.
68 I am of the opinion that the guidelines are not to be read or applied in the inflexible manner implicit in this submission. The assessor was exercising an administrative discretion which of its nature required a comparative assessment. The assessment itself was preliminary. To assess whether or not something is "complex" of necessity involves a comparison.
69 I am not satisfied that the use of the words "too complex" in the context of a preliminary assessment and determination demonstrated error in the assessor's approach.
70 It was submitted by the plaintiff that when the assessor said: "In my view it is neither my role or appropriate that I embark upon a fact finding mission in respect of these medical issues" he was refusing to undertake the task required of him by para 4.23 of the guidelines and consequently his exercise of discretion miscarried. I do not agree.
71 In context what the assessor was saying was that the MAS had made detailed findings as to medical issues in his report and the assessor was not going to "second guess" those findings by the MAS. The effect of what the assessor was saying was that he was not going to analyse the medical material to determine whether the conclusions of the MAS were correct. He was going to accept the doctor's conclusions and to apply them as best he could in performing the particular function given to him by the Act and the guidelines. Not only has no error been revealed in that approach, it seems to me that it would have been erroneous for the assessor to involve himself in questions which involved purely medical issues and which under the Act were the exclusive preserve of the MAS.
72 It was submitted by the plaintiff that the comments and conduct of the assessor gave rise to a reasonable apprehension of bias in the exercise of his discretion. Reliance was placed upon the following comments by the assessor in his determination of 20 March 2006:
"I was extremely sceptical as to the merits of the Application"