Allianz Australia Insurance Limited v Motor Accident Authority of NSW

[2006] NSWSC 1096

CITATION:	Allianz Australia Insurance Limited v Motor Accidents Authority of NSW and ors. [2006] NSWSC 1096 This decision has been amended. Please see the end of the judgment for a list of the amendments.
HEARING DATE(S):	11/10/06 12/10/06 13/10/06
JUDGMENT DATE :	16 October 2006
JUDGMENT OF:	Sully J at 1
DECISION:	Summons dismissed. Plaintiff to pay costs of second defendant; no order as to costs of the first and third defendants
LEGISLATION CITED:	Motor Accidents Compensation Act 1999 (NSW)
CASES CITED:	Zurich Australian Insurance Limited v MAA and anor. [2006] NSWSC 845 Minister of National Revenue v Farm World Equipment Ltd (1996) 142 Sask R 194 (QB)
PARTIES:	Allianz Australia Insurance Limited Motor Accidents Authority of New South Wales Frank Lorusso David Ford
FILE NUMBER(S):	SC 2006/14956
COUNSEL:	K. Rewell SC/W. Fitzimmons - Plaintiff M. Robinson - 1st Defendant P. Semmler QC - 2nd Defendant
SOLICITORS:	Sparke Helmore - Plaintiff Boh Yeng - 1st and 3rd Defendants A. S. Dunn Lawyers - 2nd Defendant

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

SULLY J

16 October 2006

14956/2006 – ALLIANZ AUSTRALIA INSURANCE LIMITED v MOTOR ACCIDENTS AUTHORITY OF NEW SOUTH WALES & ORS

JUDGMENT

HIS HONOUR:

INTRODUCTION

1 By a summons filed by leave in Court on 11 October instant, Allianz Australia Insurance Limited as plaintiff claims against two defendants the following relief:

1. An order that the first defendant be restrained, until further order, from proceeding with the Claim Assessment and Resolution Service (“CARS”) Assessment Hearing in respect of the claim brought by the second defendant arising from a motor vehicle accident on 1 September 2002, which is listed before Assessor Ford on Wednesday, 11 October 2006 at 10am at 1 Oxford Street, Darlinghurst, New South Wales 2010.

2. An order setting aside the decision of Assessor Ford dated 11 October 2006 rejecting the plaintiff’s application that the claim brought by the second defendant be exempt from assessment by CARS.

3. An order remitting the plaintiff’s application to the Principal Claims Assessor for allocation, by her, to another Claims Assessor, for the determination of such application according to the law.
4. Such other order or orders as this Honourable Court sees fit, including an order for costs.

2 The first defendant named in the summons is the Motor Accidents Authority of New South Wales. That authority is constituted by the provisions of Pt 8.1 of Chapter 8 of the Motor Accidents Compensation Act1999 (NSW). The authority is for the purposes of any Act a statutory body representing the Crown. The authority has a battery of statutory functions as provided by the provisions of Div 3 of Pt 8.1 of Ch 8 of the Act. It will be necessary to consider presently some aspects of the operation of the scheme that is established by the Act.

3 The second defendant named in the summons, Mr Frank Lorusso, is a young man now aged about thirty-two and a half years. He suffered significant personal injuries in a motor vehicle accident that occurred on 1 September 2002. The plaintiff is the insurer which is in every practical sense liable to pay such amount of compensation as the second defendant might be found entitled to receive pursuant to the statutory regime established in that behalf by the Act. That the second defendant is entitled to be paid at least some amount of such compensation is not a proposition in dispute in the proceedings that have given rise to the summons. It seems to be clear that the second defendant’s entitlement, whatever precise quantum might be ultimately assessed, could well run into millions of dollars.

4 On 13 October instant there was filed by order of this Court an amended summons. It adds a third defendant to the proceedings in this Court. That defendant is Mr David Ford. Mr Ford is a claims assessor and is as such a member of the Motor Accidents Claims Assessment and Resolution Service which is established by s 98 of the Act as a unit of the Authority set up “in association with” the operations of the Authority. As a designated claims assessor, Mr Ford is empowered, speaking broadly for the moment, to assess any “claim relating to a motor accident occurring after the commencement of (the) Act”. Certain claims are specifically exempted from such normal assessment procedure: see s 92 of the Act to which it will be necessary to return later in these reasons. In any claim not thus exempted, there must be an assessment of the claim by a designated claim’s assessor. The basic objectives of the making of the assessment are prescribed by s 94 of the Act. The assessor’s powers in that connection are prescribed by ss 100, 101 and 102 of the Act and the conduct by the assessor of assessment proceedings is governed by s 104 of the Act. To various of these further statutory provisions, also, it will be necessary to return later herein.

5 The first defendant and the third defendant have filed in the usual form submitting appearances. The second defendant has appeared by Senior and Junior Counsel and has disputed the plaintiff’s entitlement to any of the heads of relief claimed in the summons.

THE ASSESSMENT PROCEEDINGS IN CONNECTION WITH THE CLAIM OF THE SECOND DEFENDANT

6 On 31 August 2005, the second defendant’s solicitors lodged an Application for General Assessment by the Claim Assessment and Resolution Service. The Application notifies, among other things, that liability to compensate the second defendant is not disputed by the present plaintiff insurer; but that no attempts at settlement have been made; and that every one of seven stated heads of damage is contested both as to entitlement and as to quantum in the event of its being held that there is an entitlement.

7 Leaving aside for the moment the topic of statutory exemptions from the statutory assessment scheme, an application for a general assessment triggers the operation of Div 2 of Pt 4.4 of Ch 4 of the Act. Significant to the operation of Div 2 are the provisions of s 94.

“94 Assessment of claims
(1) The claims assessor is, in respect of a claim referred to the assessor for assessment, to make an assessment of:
(a) the issue of liability for the claim (unless the insurer has accepted liability), and
(b) the amount of damages for that liability.
(2) Such an assessment is to be made having regard to such information as is conveniently available to the claims assessor, even if one or more of the parties to the assessment does not co-operate or ceases to co-operate.
(3) The assessment is to specify an amount of damages.
(4) The claims assessor must, as soon as practicable, after an assessment issue the insurer and claimant with a certificate as to the assessment.
(5) The claims assessor is to attach a brief statement to the certificate, setting out the assessor’s reasons for the assessment.
(6) If the Principal Claims Assessor is satisfied that a certificate as to an assessment or a statement attached to the certificate contains an obvious error, the Principal Claims Assessor may issue, or approve of the claims assessor issuing, a replacement certificate or statement to correct the error.”

8 By a letter dated 9 May 2006, the plaintiff and the second defendant were notified that a general assessment of the second defendant’s claim had been allocated to the third defendant who would hold a preliminary assessment conference on 30 May 2006.

9 That conference took place; and on the following day the third defendant issued a written conference report “in accordance with cl 12.6 of the Motor Accident Authority’s Claims Assessment Guidelines”. The report notes the third defendant’s opinion that the claim is “suitable for assessment” and that subject to certain stated directions “the parties agree that...the matter is ready to proceed to assessment”.

10 The directions to which the report refers were given pursuant to s 100 of the Act which section provides:

“100 Power of claims assessor to require information
(1) A claims assessor may give a direction in writing to a party to an assessment under this Part requiring the party:
(a) to produce to the assessor, at a time and place specified in the direction, specified documents in the possession of the party, being documents that the assessor considers relevant to the assessment of the claim concerned, or
(b) to furnish specified information to the assessor within a time specified in the direction, being information that the assessor considers relevant to the assessment of the claim concerned.
(2) A party to an assessment who fails without reasonable excuse to comply with a direction given to the person under this section is guilty of an offence.
Maximum penalty: 50 penalty units.
(3) If a party to an assessment fails without reasonable excuse to produce a document or furnish information in compliance with a direction given to the person under this section, the person cannot as a party to proceedings before a court have the document or information admitted in the proceedings unless the court otherwise orders in the special circumstances of the case.
(4) The regulations may make provision for or with respect to any of the following matters:
(a) exempting specified kinds of documents or information from the operation of this section.
(b) specifying cases and circumstances in which a claims assessor is required to exercise the assessor’s powers under subsection (1).”

11 Two only of the directions have present significance. One of them set a further preliminary conference for 23 June 2006. The other of them was:

“4. Prior to the next tele-conference on 23 June 2006 the solicitor for the insurer will address the issue raised in their letter dated 23 September 2005 to MAAS regarding whether or not they will allege that the claimant is a person under legal incapacity.”

12 By a letter dated the day preceding the proposed further conference, the plaintiff’s solicitors put to the second defendant’s solicitors the following propositions:

“In our letter to the Motor Accidents Assessment Service dated 23 September 2005, a copy of which was provided to you we stated:

Further, the application filed by the Claimant also includes a claim for ‘fund management’ and notes ‘the treating psychiatrist, Dr Jungfer, has opined that the Claimant will be incapable of managing his own finances’.
This gives rise to an issue of whether it is alleged that the Claimant is a person under legal incapacity which in turn gives rise to the question of whether CARS is an appropriate forum for this claim given its lack of protective jurisdiction.”

We note that this issue has not been addressed.

13 On 23 June, the further preliminary conference duly took place. Following the completion of the conference and in a document dated that same day, the third defendant issued, again in accordance with cl 12.6 of the guidelines previously herein mentioned, an additional preliminary conference report. Further and detailed directions were given pursuant to s 100 but their detail need not now be canvassed. A general assessment conference, that is to say the equivalent of a final hearing, was fixed for 11 October instant. There ensued correspondence between the plaintiff’s solicitors and the solicitors for the second defendant. The upshot of that correspondence was an urgent teleconference conducted on 14 September 2006. On 18 September, the third defendant issued a second additional preliminary conference report. It reads relevantly:

“DIRECTIONS MADE UNDER SECTION 100
1. This was an urgent tele-conference called at the request of the solicitors for the insurer. The purpose in calling the tele-conference was the solicitor for the insurer requested clarification as to one aspect of the claimant’s claim for damages, being the cost of the appointment of a Fund Manager. I have not formed any preliminary view about the claimant’s claim for damages as I have not had the opportunity of perusing all of the material served to date by the claimant nor am I yet to receive the insurer’s submissions in reply on damages, however it is my understanding at this juncture, in essence the solicitors for the claimant are seeking damages in relation to the claim that the claimant may require the assistance of a “financial” manager rather than a “fund manager”.
2. In any event, I am not going to determine any preliminary issues at this stage and I am satisfied on the material present before me, especially having regard to the report of Dr Patricia Jungfer in her report dated 13 September 2006, that this claimant is able to manage his affairs.
3. I therefore indicated to both parties that as far as I am concerned the matter is to remain on timetable and the general assessment conference will proceed as scheduled for 11 October 2006 at 10am.”

14 This material needs to be supplemented by the contents of paras 33 and 34 of an affidavit sworn on 12 October instant by Mr Colvin, the plaintiff’s solicitor and read in support of the summons.

“33. During the course of the further preliminary conference on 14 September 2006 it was requested on behalf of the plaintiff that Dr Buckley, Dr Jungfer and Mr O’Neill be available for questioning at the assessment conference.
34. The Assessor indicated that he was not minded to grant that request. The second defendant’s counsel stated that the plaintiff’s representatives could submit a list of any questions to the second defendant’s experts which they would forward to the experts.”

15 On 11 October instant, the second defendant’s claim was duly listed before the third defendant for general assessment. The third defendant describes in a third additional preliminary conference report issued by him on that day, and as follows, what first transpired at the general assessment conference.

“1. This matter was set down for a General Assessment conference to commence at 10am today. On 10th October 2006 at 4pm, the solicitors for the insurer forwarded to my office submissions in support of an Application for Exemption. At the same time, the solicitors for the insurer also forwarded by facsimile the written submission on behalf of their client.
2. On page 13 of the submissions in support of the Application for Exemption, the solicitors for the insurer set out the grounds upon which they requested the present claim is not suitable for assessment and should be exempted pursuant to the provisions of section 92(1)(b) of the Act. The grounds are as follows:

(i) The claim for the cost of fund management of itself takes the claim outside the jurisdiction of a CARS Assessor.
(ii) The claimant is making a claim for all heads of damages and there is a significant disagreement between the claimant and the insurer in respect of the entitlement to those damages (clause 7.11.1).
(iii) The claim clearly involves complex issues of quantum and the amount of the claim in circumstances where the claimant’s claim amounts to a major/catastrophic claim in which brain injury is alleged (clause 7.11.4).
(iv) The claimant has been medically assessed as entitled to non-economic loss pursuant to section 131 of the Act and that assessment of itself involves significant issues of medical complexity (clause 7.11.5).
(v) The claim involves complex legal issues (clause 7.11.2).”

16 The third defendant goes on to explain that he decided to refuse the plaintiff’s exemption application. The relevant paragraph of the third defendant’s report sets out as follows the third defendant’s reasons for his decision:

“10. I informed both parties orally after reading the written submissions and also after hearing oral submissions, that I refused the insurer’s application for this matter to be exempted from CARS. I have made this decision for the following reasons:
(i) I am still of the opinion based upon all of the medical reports and documentation presented to me in this matter that the claimant is able to manage his own affairs, and I have yet to form any preliminary view as to whether or not the claimant is entitled to the cost of fund management. It may well be the claimant requires assistance in the management of his affairs and that assistance may be provided by a financial manager rather than a fund manager.
(ii) It is not uncommon in the many cases which come before CARS Assessors in the Motor Accidents Authority that there is significant disagreement between the claimant and the insurer in respect of entitlement to those damages. This is generally the reason why the case has not been settled. It is my experience in claims involving lesser claims for damages there can also be significant disagreement.
(iii) I do not believe the claim involves complex issues of quantum even in circumstances where the claimant’s claim amounts to a major/catastrophic claim in which brain injury is alleged. After reading all of the medical reports which have been produced in this matter I did not find myself in a situation where I considered any of the issues to be of such a complex nature that I could not reach a decision regarding the ultimate award of damages which I intended to make in the matter. I also note the solicitors or the insurer have not served the report from the occupational therapist whom they engaged on their behalf. The occupational therapist is a Miss Sanja Staracek. Nor, have they served a report from Dr Spira, neurosurgeon. Senior counsel for the insurer stated that there was a significant disagreement in relation to the claim for past and future care and yet his client does not wish to provide me nor provide the solicitors for the claimant with a copy of the said report from Sanja Staracek.
(iv) The claimant is entitled to non-economic loss pursuant to section 131 of the Act, however I do not believe the assessment of damages for non-economic loss involves significant issues of medical complexity as I have read all of the medical reports which have been produced in this matter and as I have stated above, I have not found any such issues of a complex nature which would cause me difficulties in reaching a determination as to quantum of damages for non-economic loss.
(v) It was also submitted the claim involves complex legal issues. I do not believe this is so. There is no allegation of contributory negligence, the matter is for assessment only. After reading the insurer’s submissions in reply on damages, there are a number of concessions made regarding possible quantum of the claimant’s claim and whilst there may be disagreement as to the amount of damages, I do not consider there is any legal issue which is of a complex nature.
(vi) I therefore reject the insurer’s Application for Exemption and I will now proceed with the General Assessment Conference.”

17 In the immediate aftermath of the third defendant’s announcement of his decision to refuse the exemption application, the plaintiff appeared before me in my then capacity as Common Law Division Duty Judge and moved for an urgent injunction in the terms noted in the first prayer for relief.

THE PROCEEDINGS IN THIS COURT

18 At the heart of the proceedings in this Court is the proposition that the nature of the second defendant’s claim, correctly understood, is such that its assessment ought to be exempted from the statutory regime; and that the third defendant, in refusing the plaintiff’s application for exemption, fell into error of a kind which this Court both is empowered to correct and ought to correct.

19 The proper consideration of that proposition calls for an examination of, in particular, s 92 of the Act and with that section certain of the so-called Guidelines which have been promulgated as part of the overall assessment regime that was introduced by the Act.

20 Section 92 of the Act provides:

“92 Claims exempt from assessment

(1) A claim is exempt from assessment under this Part if:
(a) the claim is of a kind that is exempt under MAA Claims Assessment Guidelines or the regulations, or
(b) a claims assessor has made a preliminary assessment of the claim and has determined (with the approval of the Principal Claims Assessor) that it is no suitable for assessment under this Part.

(2) If a claim is exempt from assessment under this Part, the Principal Claims Assessor must, as soon as practicable, issue the insurer and claimant with a certificate to that effect (enabling court proceedings to be commenced in respect of the claim concerned).”

21 The “MAA Claims Assessment Guidelines” to which reference is made in s 92(1)(a) are a species of delegated legislation for which provision is made by s 69 of the Act. That section provides:

“69 Claims Assessment Guidelines of Authority
(1) The Authority may issue guidelines with respect to the procedures to be followed by claims assessors in the assessment of claims under Part 4.4 and associated matters ( MAA Claims Assessment Guidelines ).
(2) The Authority may amend, revoke or replace MAA Claims Assessment Guidelines.
(3) The Authority is to consult the following about any proposed MAA Claims Assessment Guidelines:
(a) Insurance Council of Australia Limited,
(b) Council of the Bar Association,
(c) Council of the Law Society.

(4) MAA Claims Assessment Guidelines may adopt the provisions of other publications, whether with or without modification or addition and whether in force at a particular time or from time to time.

(5) MAA Claims Assessment Guidelines are to be published in the Gazette and take effect on the day of that publication or, if a later day is specified in the Guidelines for that purpose, on the day so specified.

(6) Sections 40 (Notice of statutory rules to be tabled) and 41 (Disallowance of statutory rules of the Interpretation Act 1987 apply to MAA Claims Assessment Guidelines in the same way as those sections apply to statutory rules.”

22 The guidelines are arranged in Chapters. Chapter 7 deals with s 92 exemptions. Clauses 7.1-7.5 inclusive deal with s 92(1)(a) exemptions and cll 7.6-7.11 inclusive deal with s 92(1)(b) exemptions. The parts of ch 7 that are at present relevant are:

“Section 92(1)(a)
7.1 For the purpose of section 92)1((a) the PCA shall issue a certificate of exemption when satisfied that, as at the time of the assessment, the claim involves one or more of the following circumstances.
7.1.3 the claimant lacks legal capacity.

Section 92(1)(b)
7.6 For the purpose of section 92(1)(b), an assessor may, in dealing with an application for general assessment and following a preliminary assessment of the claim, determine that the claim is not suitable for assessment.
7.7 An assessor may make a preliminary determination that a claim is not suitable for assessment on their own motion or upon application by the claimant, the insurer or both at any time during the course of an assessment.
7.8 If the assessor determines that the claim is not suitable for assessment, the file must be returned forthwith to the PCA for approval with a brief statement of reasons.
7.9 If the PCA approves the preliminary determination under section 92(1)(b) the PCA shall issue a certificate of exemption and notification to the parties within five days of the return of the file from the assessor.
7.10 If the PCA does not approve the preliminary determination, an officer of CARS is to forward the claim to a different assessor for assessment within 10 days of the return of the file from the original assessor.
7.11 In determining whether a claim is not suitable for assessment an assessor and the PCA shall have regard to the circumstances of the claim as at the time of the preliminary determination including:
7.11.1 the heads of damage claimed by the claimant and the extent of any agreement by the insurer as to the entitlement to those heads of damage.
7.11.2 whether the claim involves complex legal issues.
7.11.3 whether the claim involves complex factual issues.
7.11.4 whether the claim involves complex issues of quantum or complex issues in the assessment of the amount of the claim including but not limited to major or catastrophic, spinal or brain injury claims.
7.11.5 whether the claimant has been medically assessed and is entitled to non-economic loss pursuant to section 131 and the claim involves other issues of complexity.
7.11.6 whether the claim involves complex issues of causation in respect of the relationship between the accident, the injuries sustained and disabilities arising from it including but not limited to multiple accidents or pre-existing injuries or medical conditions.”

(References to “PCA” are references to the Principal
Claims Assessor).

23 When I commenced the hearing of the plaintiff’s present claim, I did so upon the basis that I would be called upon to consider from the point of view of both s 92(1)(a) and s 92(1)(b) the third defendant’s decision to refuse exemption. Insofar as a s 92(1)(a) point was an issue, that issue was limited to the topic covered by cl 7.1.3: that is to say, the topic of the second defendant’s “legal capacity”. Learned Senior Counsel for the second defendant objected vehemently to the propriety of this Court’s dealing with that particular issue because, as was submitted, no party had actually put to the third defendant, or was putting to this Court, that it was demonstrably the case that the second defendant lacked “legal capacity”. That was, as matters then stood, plainly the case.

24 Two ensuing developments changed that state of affairs.

25 First, the plaintiff framed and submitted to the Principal Claims Assessor an application for a s 92(1)(a) exemption based upon the proposition advanced clearly and positively that the second defendant lacked “legal capacity”.

26 Secondly, it transpired that the Principal Claims Assessor had been present in Court throughout the hearing and the Principal Assessor, with the active encouragement of the Court, undertook an urgent consideration of the plaintiff’s s 92 (1)(a) application.

27 In written reasons published on 13 October instant, the Principal Claims Assessor dismissed the application. The Court is grateful for that intervention upon very short notice of the Principal Assessor. The decision of the Principal Assessor removes any need for this Court now to consider any s 92(1)(a) aspect of the relevant decision of the third defendant.

28 The upshot of the foregoing developments is that this Court is now to determine, as on a final hearing, the plaintiff’s claims for relief insofar as those claims engage the s (92)(1)(b) aspects of the relevant decision of the third defendant.

29 There is an additional issue concerning which the plaintiff claims the relief articulated in the summons and which this Court must now determine as on a final hearing. That issue concerns the refusal of the third defendant to permit cross-examination by learned counsel for the plaintiff of four particular medical and paramedical experts who have been qualified by the second defendant. I shall return in a separate section of these reasons to this additional issue.

THE THIRD DEFENDANT’S DECISION: S 92(1)(b)

30 The first thing that needs to be said is that the third defendant, when he came to consider and then to decide the exemption application, was not operating in a conceptual and procedural vacuum.

31 The third defendant was bound, first, by the provisions of s 5 and 6 of the Act. Those sections provide:

“5 Objects of Act
(1) The objects of this Act are as follows:
(a) to encourage early and appropriate treatment and rehabilitation to achieve optimum recovery from injuries sustained in motor accidents, and to provide appropriately for the future needs of those with ongoing disabilities,
(b) to provide compensation for compensable injuries sustained in motor accidents, and to encourage the early resolution of compensation claims,
(c) to promote competition in the setting of premiums for third-party policies, and to provide the Authority with a prudential role to ensue against market failure,
(d) to keep premiums affordable, recognising that third-party bodily insurance is compulsory for all owners of motor vehicles registered in New South Wales,
(e) to keep premiums affordable, in particular, by limiting the amount of compensation payable for non-economic loss in cases of relatively minor injuries, while preserving principles of full compensation for those with severe injuries involving ongoing impairment and disabilities,
(f) to ensure that insurers charge premiums that fully fund their anticipated liability,
(g) to deter fraud in connection with compulsory third-party insurance.
(2) It must be acknowledged in the application and administration of this Act:

(a) that participants in the scheme under this Act have shared and integrated roles with the overall aim of benefiting all members of the motoring public by keeping the overall costs of the scheme within reasonable bounds so as to keep premiums affordable, and
(b) that the law (both the enacted law and the common law) relating to the assessment of damages in claims made under this Act should be interpreted and applied in a way that acknowledges the clear legislative intention to restrict the level of non-economic loss compensation in cases of minor injuries, and
(c) that:
(i) the premium pool from which each insurer pays claims consists at any given time of a finite amount of money, and
(ii) insurers are obliged under this Act to charge premiums that will fully fund their anticipated liability, and
(iii) the preparation of fully-funded premiums requires a large measure of stability and predictability regarding the likely future number and cost of claims arising under policies sold once the premium is in place, and

(iv) the stability and predictability referred to in subparagraph (iii) require consistent and stable application of the law, and

(d) that insurers, as receivers of public money that is compulsorily levied, should account for their profit margins, and their records should be available to the Authority to ensure that accountability.

6 Interpretation and application of Act by reference to objects
(1) In the interpretation of a provision of this Act or the regulations, a construction that would promote the objects of this Act or the provision is to be preferred to a construction that would not promote those objects.
(2) In the exercise of a discretion conferred by a provision of this Act or the regulations, the person exercising the discretion must do so in the way that would best promote the objects of this Act or of the provision concerned.”

32 The third defendant was bound, secondly, by the procedural requirements of Chapter 14 of the Guidelines which Chapter deals with the topic “Assessment Procedure”. The provisions which are now particularly relevant are:

“14.1 In conducting an assessment an assessor may determine the assessor’s own procedure and is not bound by the rules of evidence and may inquire into any matter in such manner as the assessor thinks fit. 14.3 The assessor is to act with as little formality as the circumstances of the case permit and according to equity, good conscience and the substantial merits of the case.
14.4 The assessor is to take into account the objects of the Act at all times.
14.7 The assessor is to progress the resolution of the claim as quickly, fairly and as cost-effectively as is practicable.
14.8 The assessor shall determine the way in which an assessment is to proceed and may:
14.8.1 decide the elements of a claim on which oral evidence or oral argument may be submitted, and
14.8.2 direct that evidence or argument be presented in writing, and
14.8.3 direct that submissions be presented in writing, and
14.8.4 determine whether an assessment conference is necessary and the time and place for any assessment conference that is to be held, and
14.8.5 determine whether any other conference is necessary, and
14.8.6 direct the number and/or type of witnesses who can give evidence at the conference.”

33 The third defendant was, thirdly, acting as a person who had been appointed to be a claims assessor upon the basis that he was in the opinion of the first defendant “suitably qualified” to hold that appointment.

34 The third defendant had, fourthly, curial guidance in the form of the judgment of Hoeben J of this Court in Zurich Australian Insurance Limited v MAA and Another [2006] NSWSC 845, a decision to which the third defendant was taken by the submissions made to him by the plaintiff. I note in particular and as the third defendant was expressly invited to do, paras 53 and 54 of that judgment:

“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) 184CLR 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.”

35 I am, with respect, in general agreement with his Honour’s analysis.

36 Fifthly and finally, it is in my view appropriate to bear in mind, albeit by way of analogy, the following observations of the Court of Criminal Appeal in connection with the examination of a summing up at trial:

“The practice of subjecting a summing-up, after the trial is over, to a minute and detailed textual criticism in the hope of finding something on which to base an argument cannot be too strongly discouraged. Such a practice does not in my opinion assist in the proper administration of justice, and this Court was not called into existence to wrestle with exercises in mental ingenuity of that kind.
.….Every summing up must be regarded in the light of the conduct of the trial and the questions which have been raised by the counsel for the prosecution and for the defence respectively. This Court does not sit to consider whether this or that phrase was the best that might have been chosen, or whether a direction which has been attacked might have been fuller or more conveniently expressed, or whether other topics which might have been dealt with on other occasions should be introduced. ( R v Sorlie (1925) 25 SR 532 at 539).”

37 I can see no reason in principle why those observations should not apply mutatis mutandis to reasons published by a claims assessor in explanation of a particular decision. What is fairly to be expected of the assessor is that there should be available a statement at once simple, succinct and clear by reference to which either an appellate Court or some other Court of competent jurisdiction can test logically and according to correct principle whether the assessor’s decision is supported by a process of reasoning that is supportable in law and in fact.

38 The plaintiff makes five separate criticisms of the third defendant’s reasons. It is convenient to take them up seriatim.

39 The first criticism concerns para 10(ii) of the reasons. I have previously quoted that at paragraph 16 of this judgment.

40 It is submitted that the assessor’s reference to the frequency of significant disagreement between a claimant and an insurer in respect of an entitlement to damages is “plainly irrelevant to cl 7.11.1 of the Guidelines”.

41 I do not agree. First, the Guideline 7.11 requires the assessor to “have regard to the circumstances of the claim...including...” the specific matters thereinafter specified. In other words, subclause 7.11.1 and its concomitant subclauses are mandatory heads of consideration, but they are not in my view exclusive. Secondly, and even were the subclauses exclusive, all that the assessor seems to me to be saying is that there are a lot of heads of damage claimed and an unhelpful absence of any agreement about any of them; but that there is nothing unusual in that state of affairs; and that were it to be held that such a state of affairs more or less required an exemption certificate to issue, then the objectives of the Act would be significantly watered down.

42 The second criticism concerns para 10(iii) of the reasons. It is submitted that the assessor acted upon a wrong principle by making an impermissibly subjective judgment that he would be able to master the relevant facts, circumstances and evidence so as to be able to reach a proper decision in accordance with the statutory assessment regime.

43 I do not agree. It seems to me that a fair reading in context of the assessor’s particular words indicates that he correctly asked whether the issues as he saw them, and based upon the evidence then before him, were “complex issues” whether of law, of fact or of quantum. The assessor was entitled to judge that matter in a practical way that reflected his own practical experience.

44 I do not see it as being necessary to become entangled in over-refined technical debating points about what does and does not, or might or might not, satisfy the description “complex” in the relevant context. I prefer, with respect, the approach of Laing J in Minister of National Revenue v Farm World Equipment Ltd (1996) 142 Sask R 194 (QB). In that case his Lordship had to consider a statutory reference to “the complex nature of the investigation”. His Lordship said:

“Webster’s Third New International Dictionary has a number of definitions of the word ‘complex’. The one...that I conclude is most in keeping with what the drafter of s 490 of the Criminal Code intended is: ‘having many varied interrelated parts, patterns, or elements and consequently hard to understand fully...marked by an involvement of many parts, aspects, details, notions and necessitating earnest study or examination to understand or cope with.’...On the material before me I am not satisfied that the investigation being conducted by the Department in this matter is of a complex nature. The scope of the investigation and the alleged offences were identified at the time the search warrant was obtained. The investigation involves reviewing the records of one business and two individuals, and comparing these records to the records of suppliers to the business and customers of the business. The investigation involves substantial ‘grunt’ work, but there is no allegation that the material is difficult to understand...”(at p 197, paras 13-14).

45 I apprehend the assessor’s approach to have been in substance the same.

46 The third criticism, also, focuses upon para 10(iii) of the reasons, this time upon the assessor’s reference to the failure of the plaintiff to serve reports of a certain occupational therapist and of a certain neurosurgeon. This consideration, it is submitted, was irrelevant to the correct application of the relevant guidelines.

47 I do not agree. In my opinion, a fair reading in context of what the assessor actually said suggests no more than the observation that the party having the burden of establishing an entitlement to exemption because of, among other things, an asserted complexity of quantum issues had conspicuously failed to adduce some particular evidence which certainly existed, and which, had it supported the claim for exemption, might reasonably have been expected to have been tendered.

48 The fourth criticism is that there was ample medical evidence before the assessor “to demonstrate a significant disagreement between the plaintiff and the second defendant as to the second defendant’s entitlement to damages”. I take that criticism as so formulated to be a submission that such significant disagreement must have entailed reasonably a conclusion that the issues were so “complex” that an exemption was required.

49 I have identified this submission as a distinct head of criticism, but I apprehend that it is in substance a re-presentation of, or of aspects of, the first three heads of criticism. I cannot add usefully to what I have earlier written about those other heads of criticism.

50 The fifth criticism focuses upon para 10(v) of the assessor’s reasons. The submission raises the vexed question of the claim made by the second defendant for an amount in excess of $700,000 for the provision of, depending upon one’s forensic point of view, financial management advice or trust fund management. I agree with the submission that the assessor does not refer in terms to that head of damages or to any particular questions that will have to be resolved in connection with it.

51 It does not follow, however, that the assessor simply did not advert to the matter at all. I should have thought that para 10(i) is, in terms, to the contrary. All that the assessor seems to me to be saying is that doing the best he could with what he had before him, he was not persuaded that there had been established an issue so “complex” as to require a statutory exemption from the statutory regime. It should be added in fairness to the assessor that as at the time of his decision, nobody, including the second defendant, had actually propounded a case of legal incapacity. I am wholly unpersuaded that the assessor was not entitled lawfully to conclude that the topic of fund management, in whatever guise it might be raised, was not so plainly “complex” as to require that the whole of the second defendant’s claim be taken out of the statutory regime.

THE THIRD DEFENDANT’S DECISION: CROSS-EXAMINATION

52 It is convenient to commence by noting the following submission of the second defendant:

“60. The Assessor has delivered reasons for refusing the Plaintiff’s Application to cross-examine medical experts. The reasons disclose error, in that the Assessor has relied on his own impression as to the potential contribution the evidence of those experts may have made without adequate basis for doing so, and in circumstances where a substantial medical dispute is apparent.
The reasons thus given by the assessor are these:
2. At the commencement of the general assessment conference, Senior Counsel for the insurer made a further application that the following medical experts be available at the general assessment conference for the purposes of being asked questions by him. The medical experts were as follows:
(a) Dr Buckley.
(b) Dr Jungfer.
(c) Dr McCarthy.
(d) Anna Castle-Burton.
3. I was then informed by Queen’s Counsel for the claimant that Dr Jungfer would be available to attend the general assessment conference that morning. I therefore requested Dr Jungfer to be contacted and requested her to be in attendance at Level 21, No 1 Oxford Street, Darlinghurst at 12.30pm that day.
4. I then enquired as to why Senior Counsel for the insurer wished to have Dr McCarthy present. I was then advised by Senior Counsel for the insurer that they wished to ask her certain questions about some of her opinions expressed in her medical reports. Senior Counsel for the claimant stated Dr McCarthy was the claimant’s treating doctor at Westmead Hospital and had not further treated the claimant since his discharge from her care over four years ago. I can see no purpose in having Dr McCarthy present at the general assessment conference in view of the long period since she had provided treatment to the claimant and I wished to proceed with the general assessment conference as scheduled on 11 October 2006. Dr McCarthy was not one of the doctors mentioned during the earlier tele-conference on 14 September 2006 when the solicitor for the insurer requested that certain doctors be contacted and asked questions concerning the claimant’s claim. In view of the fact Dr McCarthy had not seen the claimant for over four years, I saw no necessity in having her attend the general assessment conference for questioning.
5. In relation to the request that the claimant’s occupational therapist, Anna Castle-Burton be available for questioning I also refused the application made by Senior Counsel for the insurer. In view of the fact that insurer had not served the report of their own occupational therapist, Ms Sanja Staracek and I presume there would be questions put to Ms Castle-Burton based upon the unserved report of Ms Staracek, I declined to make a request that she be available for questioning at the general assessment conference.
6. In relation to the request that Dr Buckley attend the general assessment conference I was of the view this application was based upon the fact Dr Buckley did provide a report where he stated, inter alia, “the claimant should be placed under the supervision of the Office of the Protective Commissioner”. Dr Buckley saw the claimant on a medico-legal basis. I am of the opinion that Dr Jungfer, as the claimant’s treating psychiatrist, is in the best position to make this informed decision and since Dr Jungfer would be available to attend the general assessment conference at 12.30pm, I did not consider it necessary to require the attendance of Dr Buckley.”

53 I do not believe that it does justice to those reasons to say of them that they do not rise above the level of the assessor’s “own impression”. The assessor’s reasons explain in the case of each witness individually the process of reasoning upon the basis of which the assessor reached each individual conclusion. Certainly, what is involved in each case is an individual judgment, but that alone cannot decide the present issue. The plaintiff must demonstrate on the probabilities, not that a different result could have been reached, but that a different result was the only reasonable one which could have been reached in the given context. I am unpersuaded that the plaintiff has discharged that onus. I see nothing in the stated reasons that smacks of the arbitrary or of the merely idiosyncratic. The approach of the assessor seems to me to accord in a down-to-earth kind of way with the statutory principles by which, as previously herein explained, he was bound.

CONCLUSIONS AND ORDERS

54 For the whole of the foregoing reasons, I am of the opinion that the plaintiff has not established an entitlement to the first and second of the claimed heads of relief. That being so, I can see no justification for making aliunde the remitting order which is the third such head of relief.

The summons is accordingly dismissed. The plaintiff must pay the costs of the second defendant; no order as to the costs of the first and third defendants.

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23/10/2006	-	Names of solicitors changed on cover sheet - Paragraph(s) Not applicable
23/10/2006	-	Spelling mistake in word 'lawyers' - Paragraph(s) Not applicable