Boyce v Allianz Australia Insurance Ltd

[2018] NSWCA 22

Court of Appeal

Supreme Court

New South Wales

• Summary available

Medium Neutral Citation:

Boyce v Allianz Australia Insurance Ltd [2018] NSWCA 22

Hearing dates:

6 February 2018

Decision date:

20 February 2018

Before:

Basten JA at [1];
Macfarlan JA at [101];
Sackville AJA at [102]

Decision:

(1)   Allow the appeal and set aside the orders made in the Common Law Division on 20 June 2017.

 

(2)   Order that the Review Panel certificates dated 31 August 2016 and 5 September 2016 be set aside.

 

(3)   Order that the review of the Certificate issued by the Assessor on 6 May 2016 be referred to the Motor Accidents Medical Assessment Service for referral to a newly constituted Medical Review Panel.

 

(4)   Order that the first respondent pay the appellant’s costs of the appeal.

 (5)   Order that the first defendant (Allianz) pay the plaintiff’s costs in the Court below.

Catchwords:

ADMINISTRATIVE LAW – judicial review – motor vehicle accident – review of certificate of medical assessment review panel – Panel not advised by Authority of appellant’s objection to assessment without re-examination – appellant not re-examined – whether constructive failure to exercise statutory function

 

ADMINISTRATIVE LAW – judicial review – motor vehicle accident – review of certificate of medical assessment review panel – Panel not advised by Authority of appellant’s objection to assessment without re-examination – appellant not re-examined – whether procedurally unfair – whether appellant suffered practical injustice – Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam (2003) CLR 1 considered

  TORTS – motor vehicle accident – damages – claim for non-economic loss – assessment of whole person impairment – procedure adopted by review panel

Legislation Cited:

Motor Accidents Compensation Act 1999 (NSW), ss 44, 57A, 58, 59, 60, 63, 65, 131, 132, 133; Ch 16; Pt 3.4

Cases Cited:

Ali v AAI Ltd [2016] NSWCA 110
Allianz Australia Insurance Ltd v Rutland [2015] NSWCA 328
Applicant NAFF of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 221 CLR 1; [2004] HCA 62
Boyce v Allianz Australia Insurance Ltd [2017] NSWSC 785
Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 77 ALJR 1088; [2003] HCA 26
Frost v Kourouche [2014] NSWCA 39; 66 MVR 140
Haoucher v Minister for Immigration and Ethnic Affairs (1990) 169 CLR 648; [1990] HCA 22
Kioa v West (1985) 159 CLR 550; [1985] HCA 81
Malloch v Aberdeen Corporation [1971] 1 WLR 1578
McKee v Allianz Australia Insurance Ltd (2008) 71 NSWLR 609; [2008 NSWCA 163
Minister for Immigration and Border Protection v WZARH (2015) 256 CLR 326; [2015] HCA 40
Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28
R (on the application of Bancoult No 3) v Secretary of State for Foreign and Commonwealth Affairs [2018] UKSC 3
Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam (2003) 214 CLR 1; [2003] HCA 6
Re Refugee Tribunal; Ex parte Aala (2000) 204 CLR 82; [2000] HCA 57
Stead v State Government Insurance Commission (1986) 161 CLR 141; [1986] HCA 54

Texts Cited:

M Aronson, M Groves, G Weeks, Judicial Review of Administrative Action and Government Liability (6th ed, 2017, Lawbook Co)

 

Medical Assessment Guidelines, 1 October 2008
Permanent Impairment Guidelines, 1 October 2007
Review Panel Practice Note 3/2005

  Greg Weeks, Soft Law and Public Authorities – Remedies and Reform (2016, Hart Publishing)

Category:

Principal judgment

Parties:

Joanna Boyce (Appellant)
Allianz Australia Insurance Ltd (First Respondent)
State Insurance Regulatory Authority (Second Respondent)

Representation:

Counsel:
Mr D Higgs SC/Mr S Tzouganatos/Mr J King (Appellant)
Mr K P Rewell SC (First Respondent)
Submitting appearance (Second Respondent)

  Solicitors:
Turner Freeman (Appellant)
Curwoods Lawyers (First Respondent)
Crown Solicitor’s Office (Second Respondent)

File Number(s):

2017/212015

 Decision under appeal 

Court or tribunal:

Supreme Court

Jurisdiction:

Common Law Division

Citation:

[2017] NSWSC 785

Date of Decision:

20 June 2017

Before:

Fagan J

File Number(s):

2016/353452

HEADNOTE

[This headnote is not to be read as part of the judgment]

On 8 June 2012, Ms Joanna Boyce suffered injuries in a motor vehicle accident. The other driver admitted liability. Ms Boyce (the plaintiff) could only recover damages for non-economic loss if her injuries gave rise to whole person impairment greater than 10%: Motor Accidents Compensation Act 1999 (NSW), s 131. She underwent separate assessments for different injuries. Dr Rochford assessed impairment related to a bladder injury at 10%.

The defendant’s insurer (the respondent) applied for and was granted a review of Dr Rochford’s certificate. The proper officer of the State Insurance Regulatory Authority (‘the Authority’) wrote to the plaintiff, notifying her of the review and stating that she should advise if she objected to the panel proceeding without re-examining her. Ms Gleeson, the plaintiff’s solicitor, wrote to the Authority she objected. Although this correspondence was received by the Authority, the Review Panel was not made aware of the objection, and the Panel made its assessment without conducting an interview or clinical examination. The Panel revoked the original certificate and assessed impairment caused by the bladder injury at 2%. The assessment brought the claimant’s combined whole person impairment down to 10%, below the s 131 threshold.

The plaintiff commenced proceedings in the Common Law Division seeking judicial review of the Review Panel certificate. Ms Gleeson deposed that, had she been notified of the Panel’s intent to proceed without re-examining Boyce, she would have provided further documentary material to the Panel to assist with their determination.

On 20 June 2017, the primary judge (Fagan J) dismissed the summons on the basis that no reviewable error had been established. The plaintiff appealed.

The principal issue for determination on appeal was whether the Panel’s failure to interview and examine Ms Boyce as part of the assessment, or notify her of its intent to proceed without interview and examination constituted –

(1)   a constructive failure to exercise jurisdiction; and

(2)   a breach of procedural fairness.

The Court (Basten JA, Macfarlan JA and Sackville AJA) allowed the appeal and held:

In relation to (1):

1. (Per Basten JA, Macfarlan JA agreeing): the review panel was required to conduct a fresh assessment of the appellant’s whole person impairment, based on information current at the time of the assessment: [9]. Whole person impairment assessments should include an interview and clinical examination “wherever possible”: [21]-[22].

2. The decision not to examine and interview the appellant was an essential step in the assessment process: [50]; [58]. Whether there was a need for re-examination was a factual issue for determination by the panel; however, that determination could not be properly made on a false premise regarding the appellant’s wishes: [49]; [56]; [58].

Minister for Immigration and Border Protection v WZARH (2015) 256 CLR 326; [2015] HCA 40 discussed; Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 77 ALJR 1088; [2003] HCA 26 considered.

3. It was not enough for the panel to accept all of Dr Rochford’s descriptions and findings while varying his conclusions; the panel was required to determine the matter afresh: [57].

Allianz Australia Insurance Ltd v Rutland [2015] NSWCA 328 applied.

In relation to (2):

4. As the appellant was not advised that the review assessment would occur without re-examination, she was deprived of the opportunity to put her case before the panel, as to why she “objected” to the Panel proceeding “on the papers”, and as to what she might do if her objection were rejected: [94].

5. The respondent’s argument that the appellant had not suffered practical injustice was misconceived. The Court’s role is not to determine whether re-examination, or other alternative steps, might have impacted the panel’s ultimate conclusion: [70]; [94]. The respondent could not demonstrate that the appellant was not deprived of the possibility of a successful outcome: [95], [132], [134].

Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam (2003) 214 CLR 1; [2003] HCA 6 distinguished; Minister for Immigration and Border Protection v WZARH (2015) 256 CLR 326; [2015] HCA 40 applied;

6. (Per Sackville AJA, Macfarlan JA agreeing): even if it were necessary for the appellant to demonstrate she would have taken further steps to persuade the Review Panel, Ms Gleeson’s affidavit discharged that burden: [136]; [138].

Judgment

1. BASTEN JA: On 8 June 2012 the appellant, Joanna Boyce, suffered an injury in a motor vehicle accident, when her vehicle was struck from the rear. She brought proceedings against the other driver in negligence; liability was admitted. The present litigation arises from an assessment undertaken by a medical assessor under the Motor Accidents Compensation Act 1999 (NSW).

2. For the appellant to be able to obtain damages for non-economic loss it is necessary for her to obtain an assessment of whole person impairment greater than 10%. She had several disparate injuries, but the relevant one for present purposes was an injury to her bladder. To recover non-economic loss, an assessment of impairment based on that specific injury of 3% was required. The initial medical assessor, Dr Michael Rochford, urologist, assessed the impairment relating to the injury to her bladder at 10%. On an application for review by Allianz Australia Insurance Ltd (the defendant’s insurer, and the first respondent on the appeal), a proper officer of the State Insurance Regulatory Authority (the second respondent) concluded that there should be a review by a medical assessment review panel. That review resulted in a certificate recording an assessment of 2% impairment.

3. Ms Boyce commenced proceedings in the Common Law Division seeking judicial review of the Review Panel’s certificate. The basis on which she did so was that the Review Panel failed to carry out an interview and clinical examination before reaching its assessment. On 20 June 2017, the primary judge (Fagan J) dismissed the summons on the basis that no reviewable error had been established. [1]

   1. Boyce v Allianz Australia Insurance Ltd [2017] NSWSC 785 (“Boyce”).

Grounds of appeal

4. There were 17 grounds of appeal; one (“unreasonableness”) was not pressed and the remaining substantive grounds, bar one, all related to an allegation of procedural unfairness. The remaining ground alleged a constructive failure on the part of the Review Panel to exercise its statutory function. It is convenient to address these grounds together.

Failure to conduct interview and clinical examination

5. The appellant’s case in support of an obligation for the Review Panel to conduct an interview and clinical examination relied upon a combination of three factors, namely (a) the statutory scheme for assessments; (b) various procedural guidelines and (c) her written request for an examination. The third element (the written request) depended on a factual matter which was not in dispute, namely that the request had gone astray and had not been provided to the Review Panel or the proper officer assisting it. It is convenient to start with the statutory scheme.

(a)   statutory scheme

6. The Review Panel’s certificate was issued on 31 August 2016. The following discussion of the statutory provisions (and the procedural guidelines) refers to the legislation (and documents) in force at that time.

7. Pursuant to s 131 of the Motor Accidents Compensation Act, no damages could be awarded for non-economic loss unless the degree of permanent impairment was greater than 10%. In the event of a dispute as to a claimant’s satisfaction of that requirement, an assessment by a medical assessor was required. [2] Such a dispute, referred to as a “medical assessment matter”, was to be undertaken by a medical assessor appointed by the Motor Accidents Medical Assessment Service. [3]

   2. Motor Accidents Compensation Act, s 132(1).

   3. Motor Accidents Compensation Act, ss 57A, 58(1)(d), 59 and 60(2).

8. The process for review of a medical assessment was set out in s 63, which relevantly provided:

63   Review of medical assessment by review panel

(1)   A party to a medical dispute may apply to the proper officer of the Authority to refer a medical assessment under this Part by a single medical assessor to a review panel of medical assessors for review.

(2)   An application for the referral of a medical assessment to a review panel may only be made on the grounds that the assessment was incorrect in a material respect.

…

(3)   The proper officer of the Authority is to arrange for any such application to be referred to a panel of at least 3 medical assessors, but only if the proper officer is satisfied that there is reasonable cause to suspect that the medical assessment was incorrect in a material respect having regard to the particulars set out in the application.

(3A)   The review of a medical assessment is not limited to a review only of that aspect of the assessment that is alleged to be incorrect and is to be by way of a new assessment of all the matters with which the medical assessment is concerned.

(4)   The review panel may confirm the certificate of assessment of the single medical assessor, or revoke that certificate and issue a new certificate as to the matters concerned.

Of critical importance to the appellant’s case is the description in subs (3A) of the form of the review, namely “by way of a new assessment” of all the matters with which the initial assessment was concerned. The introduction of that provision disposed of a possible construction of subs (3) which limited the scope of the review to the “material respect” as to which the proper officer was satisfied that there was reasonable cause to suspect error. [4]

4. Cf McKee v Allianz Australia Insurance Ltd (2008) 71 NSWLR 609; [2008] NSWCA 163 dealing with s 63 before the insertion of subs (3A).

9. Although it was not suggested that a review panel should not have regard to the assessment under review, it may be inferred that the “new” assessment must be based on clinical information current at the time of the panel’s assessment, an inference confirmed by cl 1.23 of the Permanent Impairment Guidelines. [5] Accordingly, the appellant argued, if an original assessment required a clinical examination of and interview with the claimant, so should the review panel assessment.

   5. See at [18] below.

10. The other salient statutory provisions are those providing for procedural steps to be undertaken in the course of medical assessments. First, there are sets of medical guidelines, the issue of which was provided for in s 44 in the following terms:

44   Medical Guidelines of Authority

(1)   The Authority may issue guidelines (Motor Accidents Medical Guidelines) with respect to the following:

…

(c)   the assessment of the degree of permanent impairment of an injured person as a result of an injury caused by a motor accident,

(d)   the procedures for the referral of disputes for assessment or review of assessments, and the procedure for assessment and review of assessments, under Part 3.4.

11. Assessments of permanent impairment were made under Pt 3.4, which included s 58(1)(d). There was a complementary provision in s 65:

65   Authority monitoring and oversight

(1)   Medical assessments under this Part are subject to relevant provisions of Motor Accidents Medical Guidelines relating to the procedures for the referral of disputes for assessment or review of assessments and the procedure for assessment.

(2)   The Authority may arrange for the provision of training and information to medical assessors to promote accurate and consistent medical assessments under this Part.

Subsection (2) has been relied on to promulgate practice notes relating to procedural issues.

12. Section 44(1) also provided for guidelines relating to the assessment of the degree of permanent impairment, as required by s 132(1). The following section relevantly provided:

133   Method of assessing degree of impairment

(1)   The assessment of the degree of permanent impairment of an injured person as a result of the injury caused by a motor accident is to be expressed as a percentage in accordance with this Part.

(2)   The assessment of the degree of permanent impairment is to be made in accordance with:

(a)   Motor Accidents Medical Guidelines issued for that purpose, or

(b)   if there are no such guidelines in force—the American Medical Association’s Guides to the Evaluation of Permanent Impairment, Fourth Edition.

13. It is unclear whether the different expressions in s 65(1) (“subject to”) and in s 133(2) (“in accordance with”) have different legal consequences; [6] nothing terms on that point in this case.

(b)   procedural guidelines

6. Ali v AAI Ltd [2016] NSWCA 110 at [86]-[89] (Leeming JA).

Medical Assessment Guidelines

14. The Medical Assessment Guidelines made under s 44(1)(d) of the Motor Accidents Compensation Act cover, amongst other things, the procedure for review of assessments under Pt 3.4 of the Act. Applications for review are addressed in the first instance to the proper officer, who is required to consider the application under s 63. Chapter 16 deals with reviews and provides for the procedure to be adopted by the proper officer in determining whether to refer the application to a panel under s 63(3). [7] The proper officer is responsible not only for a referral to a review panel, but also for convening a review panel and arranging for the appointment of a chairperson for the panel. [8] The proper officer is to advise the parties of the arrangements for the review within five days of convening the panel. [9] The proper officer shall act as secretary to the panel and provide administrative support. Further, the officer “shall arrange for copies to be sent to each member of the Review Panel” of all material before the original assessor, the original assessor’s certificates, the review application and reply and supporting material. [10] The review panel is to carry out an assessment, with specific functions being identified in cll 16.21-16.26. Relevantly, cl 16.21 provides:

    7.    Medical Assessment Guidelines, cll 16.11-16.15.

    8.    Medical Assessment Guidelines, cl 16.17.

    9.    Medical Assessment Guidelines, cl 16.18.

    10.    Medical Assessment Guidelines, cl 16.19.

Review Panel assessment

16.21   The Review Panel is to hold an initial meeting or teleconference within 30 days of the date the panel was convened and, at that meeting or in subsequent meetings, is to:

16.21.1    consider afresh all aspects of the assessment under review;

16.21.2   determine whether re-examination of the claimant is required, and if so set a timetable for that to occur;

16.21.3   determine whether additional information is required in order to make a decision;

16.21.4   determine whether each of the certificates issued by the original Assessor is to be confirmed or revoked;

16.21.5   if revoked, determine what new certificates are to be issued;

….

15. The obligation imposed under cl 16.21.1 to “consider afresh all aspects of the assessment under review” is consistent with the obligation imposed by s 63(3A). However, the obligation under cl 16.21.2 is not to examine the claimant, but to determine whether “re-examination” is required. The assumption underlying this provision is that the initial assessor will have examined the claimant. As with cl 16.21.3 in relation to “additional information”, there is an evaluative judgment to be made by the panel in regard to each matter. In substance, the issue in the present case is whether there are constraints on that judgment with respect to carrying out an examination of the claimant.

Permanent Impairment Guidelines

16. The second set of relevant medical guidelines is that entitled “Guidelines for the Assessment of the Degree of Permanent Impairment”. These are issued pursuant to s 44(1)(c) of the Motor Accidents Compensation Act; s 133 requires that the assessment of permanent impairment “is to be made” in accordance with these Guidelines.

17. The introduction to the Permanent Impairment Guidelines notes that they were “based on” the American Medical Association publication of 1995 (referred to as the “AMA 4 Guides”), but with a number of significant departures. Assessors are advised: [11]

“However, in these Guidelines there are some very significant departures from that document. The MAA Guidelines are based on the American Medical Association publication … (AMA 4 Guides). However, in these Guidelines there are some very significant departures from that document. Persons undertaking impairment assessments for the purposes of the NSW Motor Accidents Compensation Act 1999 must read these MAA Guidelines in conjunction with the AMA 4 Guides. These MAA Guidelines are definitive with regard to the matters they address. Where they are silent on an issue, the AMA 4 Guides should be followed.”

The introduction then states: [12]

“The convention used in these MAA Guidelines is that if the text is in bold, it is a directive as to how the assessment should be performed.”

11.    Permanent Impairment Guidelines, cl 1.2.

12.    Permanent Impairment Guidelines, cl 1.3.

18. This last statement is ambiguous in two respects. First, in some legal contexts, provisions are described as “mandatory or directory.”[13] However, in the Guidelines it is clear that a “directive” is mandatory. There is then a question as to the use of the term “definitive”. If the Guidelines are “definitive” only with respect to matters in bold type, there is potential confusion as to the meaning of s 133(2) which requires that the assessment “is to be made in accordance with” the Guidelines. However, the purpose of cl 1.2 and 1.3 of the Guidelines is to fix the relationship of the Guidelines with the AMA 4 Guides. The purpose of placing certain parts of the text in bold is that the AMA 4 Guides are not to be followed on such matters. It would be inconsistent with the combination of s 133(2) and the mandatory terms in which parts of the unbolded text are expressed to suggest that the assessor can ignore what is, in effect, the bulk of the Guidelines. The point may be illustrated by two consecutive paragraphs under the head “Permanent impairment”:

1.23   The evaluation should only consider the impairment as it is at the time of the assessment.

1.24   The evaluation should not include any allowance for a predicted deterioration ….

Although the latter provision is not bolded, it is in its terms mandatory. [14]

13. See, for example, Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28 at [38].

14.    Compare Ali at [93]-[99].

19. Under the heading “Application of Guidelines” reference is made to their application to original assessments (cl 1.4), further assessments (cl 1.5) and reviews of assessments (cl 1.6). The primary purpose of these provisions is not to limit the application of the Guidelines in some form, but to deal with changes in the Guidelines over time. Relevantly for present purposes, cl 1.6 provides:

Reviews of Assessments – These Guidelines apply in the review of an assessment (under s 63 of the Act) as follows:

(a) Decisions of the Proper Officer under s 63(1)(2)(3)

…

(b) Review Panel assessments under s 63(4)

These Guidelines apply to all review panel assessments of the degree of permanent impairment (under s 58(1)(d) of the Act) conducted by a review panel on or after the commencement date.

20. There are also general requirements with respect to “Causation of injury”, “Impairment and disability” and then, importantly, “Evaluation of impairment”. The last heading includes the following propositions:

1.19   The assessor should consider the available evidence and be satisfied that there:

(i)   was an injury to the part being assessed caused by the accident;

(ii)   is a defined diagnosis that can be confirmed by examination; and

(iii)   is an impairment as defined at 1.11 of the MAA Guidelines.

1.20   An assessment of the degree of permanent impairment involves three stages:

(i)   A review of medical and hospital records, including:

-   all available treating and medico-legal doctor notes and reports (general practitioner, specialist and allied health), both prior to and following the accident; and

-    diagnostic findings from all available relevant investigations.

(ii)   An interview and a clinical examination, wherever possible, to obtain the information specified in the MAA Guidelines and the AMA 4 Guides necessary to determine the percentage impairment; and

(iii)   The preparation of a report using the methods specified in these MAA Guidelines which determines the percentage permanent impairment together with the evidence, calculations and reasoning on which the determination is based. The applicable parts of the MAA Guidelines and the AMA 4 Guides should be referenced.

21. On one view, there is an inconsistency between cl 1.20(ii) of the Permanent Impairment Guidelines and cl 16.21.2 of the Medical Assessment Guidelines. The latter suggests that the panel is required to determine whether a re-examination is required, whereas the Permanent Impairment Guidelines provide that “[a]n interview and a clinical examination” is to be conducted as a part of the process “wherever possible”, at least in circumstances where such an interview and examination is “necessary” to obtain the information required.

22. Any apparent inconsistency may readily be resolved. First, some forms of assessment may turn on diagnostic tests, whereas other forms of assessment (including levels of pain) will require reporting by the claimant. Clause 1.20(ii) envisages such differences in circumstance. It also envisages that an interview and clinical examination may not be practically possible in some cases. The Permanent Impairment Guidelines are specific to a particular kind of assessment; the Medical Assessment Guidelines apply to assessment disputes generally. To the extent that the Permanent Impairment Guidelines do require examination of the claimant, that obligation is not diminished by the general Medical Assessment Guidelines.

23. Relevantly for present purposes, the Permanent Impairment Guidelines rely upon Ch 11 of the AMA 4 Guides, although for sexual dysfunction they require “objective pathology” before an impairment percentage can be given. [15]

    15.    Permanent Impairment Guidelines, cll 8.21-8.22.

24. Chapter 11 of the AMA 4 Guides provides “criteria for evaluating the effects that permanent impairments of the urinary and reproductive systems have on the ability of individuals to perform their activities of daily living.” With respect to the bladder, Ch 11.3 notes that “the bladder is a voluntarily controllable reservoir for urine that normally permits the patient to retain urine for several hours. Symptoms and signs of impairment of function of the bladder may include urinary frequency, pain with voiding (dysuria),…. Objective techniques useful in evaluating function of the bladder include but are not limited to cystoscopy ….”

25. It is clear that subjective reporting of “[s]ymptoms and signs of impairment of function” and of the effect on “activities of daily living” form an essential part of the evaluation of permanent impairment with respect to the bladder.

(d)   correspondence with proper officer

26. Section 65(2) of the Act provides that “[t]he Authority may arrange for the provision of training and information to medical assessors to promote accurate and consistent medical assessments under this Part.” Pursuant to this section, the Authority promulgated a “Review Panel Practice Note 3/2005” (“the practice note”) addressing “the Review Panel process”. Even when expressed in mandatory language, and where they may confine and structure discretion, such documents are not likely to give rise to controls which are legally enforceable by way of judicial review. [16] On the other hand, such provisions may provide a basis for demonstrating unfairness resulting from the breach of a procedural requirement.

    16.    See generally, Greg Weeks, Soft Law and Public Authorities – Remedies and Reform (2016, Hart Publishing) at pp 30-35; M Aronson, M Groves, G Weeks, Judicial Review of Administrative Action and Government Liability (6th ed, 2017, Lawbook Co) at [3.270].

27. In large part, the practice note speaks in generalities and provides checklists of things to be considered. Relevantly for present purposes, it identifies a number of matters which the chairperson should ensure that the panel has considered, identified by reference to five questions of which the first is: [17]

“Is a re-examination of the injured person required in order to be satisfied that the correct decision is made?”

17.    Practice Note, par 3.a.

28. Paragraph 4 reads in part as follows:

4.   Whether Re-examination is required:

a.   General Principles:

i.   The Review Panel should generally include a re-examination of the claimant, except in cases where there is no dispute, ambiguity or uncertainty as to the clinical findings that are required in order to complete all aspects of the assessment.

ii   If the Review Panel is informed that a party has objected to the review being conducted ‘on the papers’, then the Panel should generally conduct a re-examination.

iii   A re-examination should generally be conducted by more than one Panel member, unless all Panel members are satisfied that, having regard to the circumstances of the case, examination by a single Panel member is appropriate.

iv   Generally where the credit of the claimant is in issue, a re-examination by more than one Panel member should be conducted.

(In some cases the Review Panel members may have agreed, prior to the initial Panel conference, that an examination will be required. In such cases the secretary will have made the necessary arrangements and deferred the initial Panel conference until after the examination has taken place) ….

b.   No re-examination required:

…

In all cases where the Panel decides that a re-examination is not required, the reasons for this decision should be clearly stated in the Panel’s certificate reasons.

29. It was in this context that the Authority wrote to the solicitors for the appellant (Turner Freeman) on 9 August 2016 notifying them that the matter would be referred to a review panel. The letter identified the terms of the original assessment and, under the heading “Referral to a Review Panel”, noted that the panel would conduct a “new assessment” and would “confirm or revoke the certificate” issued by the assessor. The letter continued:

“If you object to the Review Panel being conducted without an examination of the claimant, please advise immediately in writing, providing reasons why you believe an examination is required. If no objections are received by the initial conference date, the Panel will assume that there is no objection to the review being conducted on the documentary material provided.”

It will be appropriate to return to the language used in the Authority’s letter.

30. On 11 August 2016 Ms Sally Gleeson, a partner at Turner Freeman, replied, referring to the letter of 9 August and continuing:

“We request that the Review Panel examines the Claimant. Without an examination, proper consideration cannot be given by the Review Panel to the assessment conducted by Assessor Rochford, the application for review on behalf of the insurer and the Claimant’s injuries. This is particularly in view of the fact that the Review Panel will determine the matter ‘de novo’.”

31. On 16 August 2016 Ms  Gleeson sent an email to the Authority in the following terms:

“As per my telephone conversation with Nathan this morning, please find attached our letter of 11 August.

We kindly request that the Claimant be examined by the Review Panel, as per your letter of 12 August.

We look forward to hearing from you ….”

32. There were aspects of the email which were not self-explanatory. For example, the first sentence suggested that the Authority may have already mislaid the letter of 11 August and was being given a second copy. Further, there appears to have been a letter from the Authority of 12 August (which was not in evidence), although it was possibly a mistaken reference to the letter of 9 August received on 10 August.

33. In an affidavit of 25 November 2016 some further clarification was given by Ms Gleeson in respect of the first question. She stated: [18]

“As I had not heard back from MAS about an examination of the plaintiff, on 16 August 2016, I telephoned MAS and left a message for Ms Nicholls, seeking a reply to my letter dated 11 August 2016. Ms Nicholls was unavailable and I was referred to ‘Nathan’ from MAS with whom I spoke. Nathan advised me that their system could not identify my letter and therefore, Nathan asked me to email my letter to him so that he could attend to it.”

18.    Affidavit, Sally Gleeson, 25 November 2016, at par 29.

34. Ms Gleeson said she did not receive a response until after the decision of the Review Panel of 31 August 2016, and then only by email dated 8 September 2016. As Ms Gleeson noted, the email of 8 September demonstrated that the Authority had in fact received the earlier email from her of 16 August.

35. Ms Gleeson further stated in her affidavit that the Review Panel had “ignored my objection to their assessment going ahead without their examination of the plaintiff but had not advised me that they were proceeding in that fashion.” [19] The affidavit continued: [20]

“If I had been advised by the Review Panel that their intention was to determine the matter without examining the plaintiff, then I would have provided the Review Panel with further material to assist them in making their determination. The written material would have included, for example, the plaintiff’s updated statement, outlining the material facts pertaining to her bladder dysfunction and its impact on her daily life, to assist the panel in making its determination. The relevance of the panel being able to see and properly assess the plaintiff is crucial because the assessment of the whole person impairment relating to the plaintiff’s bladder dysfunction must be made according to medical guidelines which provide for a range of impairment of whole person impairment in the area of bladder dysfunction, ranging from between 0% to 15%. The actual figure to be chosen is heavily dependent on subjective matters, including how the injury affects the injured person and its impact on their daily life.”

19.    Affidavit, par 37.

20.    Affidavit, par 38.

36. Despite the fact that the Authority had received the request from the appellant’s solicitor, and that the proper officer of the Authority was directly involved in the review process, it appears to have been assumed that the Panel was unaware of the correspondence. That assumption should be accepted.

37. The review certificate contained a heading “Documentation and Other Material Reviewed.” [21] The correspondence with the appellant’s solicitor was not identified in that section.

    21.    Certificate, p 2 of 6, Review details Part C.

38. It may be that the certificate was wrong in this respect; there were other matters in the certificate of material significance which were wrong. For example, in identifying the dispute between the parties, the certificate stated:

“The Panel considered the matters cited in the Reply to the Application for Review and noted that:

●   the respondent agreed with the application.”

The respondent’s reply submission commenced with the statement that the original assessment “is not affected by error.”

39. Under the heading “Matters considered and Decided by the Panel” the certificate stated:

“The proper officer identified that Dr Rochford had not provided sufficient information so that his path of reasoning, and reasons for his conclusions, were apparent from his Certificate.”

The proper officer made no such decision; in accordance with the Act, she was merely satisfied that “there is reasonable cause to suspect that the assessment is incorrect in a material respect”.

40. Despite these patent errors, it should not be inferred that the statement as to the material received by the Review Panel was inaccurate; there was nothing in the reasons to suggest that they knew that the applicant was seeking an interview and clinical examination.

Findings as to grounds of appeal

(a)   constructive failure to exercise statutory function

41. The appellant’s case commenced with the proposition that the Review Panel was required to make a “new assessment of all the matters with which the medical assessment is concerned.”[22] Secondly, that assessment (like the original assessment) must be made in accordance with the Permanent Impairment Guidelines as required by s 133(2). The respondent did not challenge the proposition that a medical assessment was governed by the Permanent Impairment Guidelines, so that a departure from their requirements could constitute reviewable error. Rather, the respondent contended that there had been no significant departure.

    22. Motor Accidents Compensation Act, s 63(3A).

42. The relevant provisions with respect to the assessment of impairment contained two important propositions. One was that the assessment “involves three stages”, the second of which was “[a]n interview and a clinical examination”. [23] That obligation was qualified by the words “wherever possible”, but it was not in doubt that an interview and clinical examination would have been possible in the present case, as the appellant was both willing and able to undergo that exercise and requested that it occur.

    23. Permanent Impairment Guidelines, par 1.20(ii), set out at [20] above.

43. The second proposition, relied on by the respondent, was that cl 1.20(ii) allowed a discretionary judgment on the part of the review panel, because the purpose of the interview and clinical examination was to obtain information necessary to determine the extent of the impairment. The existence of such a discretion was, it was submitted, confirmed by the procedural requirement that a review panel should determine whether re-examination of the claimant is required. [24]

    24. Medical Assessment Guidelines, cl 16.21.2, set out at [14] above.

44. The interrelationship between the provisions in the separate guidelines has already been addressed; the general statement in the procedural guideline should not be understood as diminishing the obligations of the panel as set out in the Permanent Impairment Guidelines, given statutory force by s 133(2). However, the respondent’s submission that the scope of the obligation is governed by its purpose, which is limited to obtaining information which is “necessary” to the exercise of the function, raised a question as to whether the scope of the obligation is a matter entirely for the review panel or is itself subject to judicial control.

45. Although the respondent accepted that the relevant criteria required information as to the effect of the impairment on activities of daily living and on the normal functioning of the bladder, being information which could only be obtained from the appellant, it submitted that the relevant information had already been obtained by Dr Rochford and recorded by him in his certificate which was before the Review Panel. It was therefore not “necessary” to repeat the task in order to obtain the information; or at least it was open to the Panel to take that view, as they did.

46. There was, of course, a time lapse of some four months between Dr Rochford’s assessment and that undertaken by the Review Panel. Because the Panel was required[25] to consider the impairment “at the time of the assessment”, a further step in the appellant’s submission was that the Review Panel lacked any basis to find that it had current information. The appellant sought to demonstrate that the appellant’s medical condition was a fluctuating condition. The respondent countered that Dr Rochford had expressed the view that the appellant’s medical condition had stabilised.

    25. See Permanent Impairment Guidelines, cl 1.23 set out at [18] above.

41. In relation to the appellant’s submission, the Panel did not consider whether her condition might fluctuate, because it was not raised before them. In relation to the respondent’s submission, permanency of impairment was a statutory precondition to the carrying out of a medical assessment; [26] further the Permanent Impairment Guidelines required that it have stabilised before being assessed. [27] Applying the definition of permanency in the Guidelines, Dr Rochford expressed the view that the appellant “has reached a state of maximum medical improvement and her symptoms are unlikely to change significantly in the next year.” This was not a finding that her condition might not fluctuate over the ensuing months. In any event, these factual disputes cannot be resolved in judicial review proceedings.

    26. Motor Accidents Compensation Act, s 132(3).

    27.    Permanent Impairment Guidelines, cl 1.21.

42. The opinion of the Panel as to the need to carry out an interview and clinical assessment was expressed in the following terms:

“The panel considered all of the available evidence and decided that a re-examination of the claimant was not necessary. There was substantial information available in the reports and Mrs Boyce had provided a clear description of her current status when assessed at [interview] by Assessor Rochford.”

49. Accepting that the question as to the need for “re-examination” was a factual issue for the Panel (and not a matter for the reviewing court to determine), the Panel’s decision was not a proper exercise of the function conferred on it.

50. First, the decision to conduct (or not conduct) an interview and clinical examination is a material (perhaps critical) step in the review process, given the nature of the criteria to be applied and cl 1.20(ii) of the Permanent Impairment Guidelines.

51. The importance of such a process may be understood by analogy with the factual circumstances addressed by the High Court in Minister for Immigration and Border Protection v WZARH. [28] The applicant had claimed a protection visa based on his well-founded fear of harm in his home country, Sri Lanka, arising from his Tamil ethnicity. In protection visa cases, it is routine that the decision-maker will have access to “country information” in varying degrees of particularity against which to assess a claim of a well-founded fear of persecution. Nevertheless, the applicant’s own history will also be of central importance to the decision-making process. The applicant was interviewed by an officer who was unable to complete the process, responsibility being transferred to a second officer. The second officer formed an adverse view of the credibility of the applicant, but without conducting a further hearing. The second officer had, however, listened to a tape of the original hearing and read the transcript. Nevertheless, Kiefel, Bell and Keane JJ stated:

“[40]   The fact that the First Reviewer interviewed the respondent affords, at the very least, some practical indication of what procedural fairness required in the circumstances of this case. An interview in the course of the IMR [Independent Merits Review] process provides the reviewer with opportunities for direct questioning of the applicant; for clarification of areas of confusion or poor understanding on both sides; and for the observation of the demeanour of the applicant. Impressions formed by a decision‑maker from the demeanour of an interviewee may be an important aspect of the information available to the decision‑maker.

…

[43]   An interview by the Second Reviewer might have made a difference to the outcome of the IMR process. [29] This may be seen from what was involved in any assessment of the respondent's application to be undertaken by the Second Reviewer. The acceptance or rejection of his case was likely to turn, not only upon apparent inconsistencies or uncertainties in his account, but also upon impressions formed about how he had responded to questions about his recollection of events in the recorded interview with the First Reviewer.”

28. (2015) 256 CLR 326; [2015] HCA 40.

29. Stead v State Government Insurance Commission (1986) 161 CLR 141 at 145‑147; [1986] HCA 54.

52. The question of procedural unfairness will be addressed below; these observations are relevant to the importance of allowing a claimant to give his or her account in person to the decision-maker. Similar reasoning may be applied to a medical interview and examination.

53. Secondly, the Panel had only brief notes of the history and symptoms recounted to Dr Rochford. He had set out in his certificate (in the present tense) what might be described as symptoms of bladder dysfunction as reported by the appellant. The Panel had no information as to whether the appellant agreed that his description reflected the seriousness of her condition, although the Panel itself, in determining that the level of impairment was 2%, rather than 10%, identified a major discrepancy between Dr Rochford’s description and his assessment. The Panel may have thought that the appellant accepted Dr Rochford’s description because she had not sought a further interview and examination, but that was an erroneous assumption.

54. In Dranichnikov v Minister for Immigration and Multicultural Affairs,[30] the applicant contended in the High Court “that the Tribunal misstated and failed to deal with the case presented to it.”[31] Gummow and Callinan JJ responded to this complaint in the following terms:

“[24]   To fail to respond to a substantial, clearly articulated argument relying upon established facts was at least to fail to accord Mr Dranichnikov natural justice. …

[25] The question remains however whether what occurred, either characterised as a failure to accord natural justice or as that, and more, which we consider it to be, including a constructive failure to exercise jurisdiction, entitles Mr Dranichnikov to relief under s 75(v) of the Constitution.”

30. (2003) 77 ALJR 1088; [2003] HCA 26.

31. Dranichnikov at [23].

55. To similar effect, Kirby J stated:[32]

“Obviously, it is not every mistake in understanding the facts, in applying the law or in reasoning to a conclusion that will amount to a constructive failure to exercise jurisdiction. But where, as here, the mistake is essentially definitional, and amounts to a basic misunderstanding of the case brought by an applicant, the resulting flaw is so serious as to undermine the lawfulness of the decision in question in a fundamental way.”

Kirby J concluded that Mr Dranichnikov had “established a constructive failure on the part of the Tribunal to exercise its jurisdiction and power in reviewing the decision of the delegate.”[33]

32. Dranichnikov at [88].

33. Dranichnikov at [89].

56. By parity of reasoning, given that the Panel was required to consider subjective as well as objective criteria, which could only be assessed upon examination of the appellant and considering her description of her condition, the circumstances in which it can be legitimate to reject an application for examination will be rare. The decision not to examine in such circumstances cannot properly be exercised on a false belief that the claimant does not seek an examination.

57. The decision of the Panel to rely entirely upon the description given by the original assessor of the complainant’s condition, while concluding that his assessment should be reduced by 80%, was flawed. The Panel was required to carry out the whole process of assessment afresh; to accept all the findings (it made no finding of its own as to permanency) of the original assessor, whilst rejecting his conclusion, was to run perilously close to the error identified in Allianz Australia Insurance Ltd v Rutland,[34] namely to reassess only that aspect of the original assessment which the proper officer had found reasonable cause to suspect was incorrect in a material respect.

    34. [2015] NSWCA 328 (McColl and Meagher JJA, Macfarlan JA agreeing).

58. Whether the Panel would have refused to allow an interview and clinical examination had it known that the appellant sought one cannot be known. All it decided was that a re-examination “was not necessary.” It reached that conclusion on a false premise. The conclusion was an essential element of the assessment process, which accordingly miscarried.

59. The primary judge reached a different conclusion. In dealing with the grounds of review, the primary judge commenced with the complaint of failure to exercise the statutory function. He reasoned that “[c]lause 16.21.2 of the Medical Assessment Guidelines … makes it clear that it was for the Panel members to determine, according to their respective professional opinions, whether a re-examination of the plaintiff was required.”[35]

    35. Boyce at [55].

60. He noted that there was doubt as to the legal status of the Guidelines, but continued:[36]

“Whatever the legal status of the guidelines, for reasons which follow (a) they do not on their face require re-examination of the claimant by a review panel in every case and (b) in the particular circumstances of this review, consideration of the guidelines does not show that re-examination was essential to performance of the panel’s statutory function.”

Both these propositions may be accepted, but they do not grapple with the fact that the Panel addressed the issue on a false basis.

36. Boyce at [37].

61. The judge also referred to the following statement in Rutland:[37]

“Finally, although the Review Panel could determine that it was unnecessary to examine the respondent, its discretion to do so (MA Guidelines, cl 16.21.2) is limited by the requirement that it assess all of the matters with which the permanent impairment assessment is concerned (s 63(3A)). Additional matters to be taken into account include (1) the requirement that the Review Panel assess the impairment at the time the matter comes before it (PI Guidelines, cl 1.23); (2) that an assessment of permanent impairment is said to involve a clinical examination ‘wherever possible’ to obtain the required information (PI Guidelines, cl 1.20(ii)); (3) that clinical judgment is considered the ‘most important tool’ in assessing a mental impairment in accordance with the Psychiatric Impairment Rating Scale (PI Guidelines, cl 7.17); and (4) that the Review Panel was required to determine whether additional information was needed (MA Guidelines, cl 16.21.3).”

37. Rutland at [31].

62. The Court in Rutland further noted that the review panel did not have the benefit of any transcript or clinical notes of the original assessors examination and said that in those circumstances, “and recognising that clinical judgment between medical practitioners may vary on the issue which had to be assessed, it would, in our view, be surprising and unusual that a panel of medical assessors seeking to assess a person’s degree of impairment due to a particular psychological injury would not interview the relevant individual so as to be satisfied they have an accurate and complete history of his or her pre-accident lifestyle, activities and habits and the extent to which those may have changed as a result of that injury ….”[38]

    38. Rutland at [33].

63. It is true that Rutland involved circumstances which differed from the present case in two respects, namely (a) that the question was not whether the review panel was required to interview the claimant, but whether it had approached its tasks too narrowly by focusing on the alleged errors in the original assessment,[39] and (b) the relevant impairment involved a psychiatric illness, not bladder dysfunction. However, the observations set out above had direct relevance for the present case. It is true that they may have supported a conclusion that “[r]e-examination is not so inflexibly prescribed that failure to undertake it necessarily and of itself constitutes a repudiation of the statutory function”, as suggested by the primary judge, but that was not the question which needed to be addressed. [40]

    39. Rutland at [24].

    40. Boyce at [56].

64. The primary judge’s conclusion was in the following terms:[41]

“The effect on ‘daily life’ of having to pass urine at one to two hourly intervals and three to four times at night is self evident. It was open to the Panel to conclude, as it apparently did, that the description of symptoms said everything there was to be said about impact on ‘daily life’ and that no elaboration would assist with inferring the level of impairment.”

41. Boyce at [58].

65. The first sentence in this passage is open to challenge on two grounds. First, it did not refer to evidence which was current at the time of the review, as opposed to the time of the original assessment, albeit the difference was only four months. Secondly, a judgment as to where on the scale of percentage impairment the claimant’s account as summarised by Dr Rochford would fall appears not to have been self-evident to the medical practitioners, who differed widely; it is certainly not a matter on which the Court’s view is relevant. Further, to say that practitioners might reasonably conclude that a further clinical examination or account of the appellant’s circumstances would not lead to a different result, does not mean that they could properly perform their function without taking the steps which would usually be involved in such an assessment. It is possible that the difference between the percentages accepted by the Review Panel and by Dr Rochford was a function of the fact that Dr Rochford examined the appellant personally, whereas the Review Panel did not.

66. The decision of the Review Panel not to interview and clinically examine the appellant was fatally flawed. Given the criteria which they were required to address, the failure properly to address that issue involved a constructive failure to carry out their statutory function of conducting a new assessment. The fact that it occurred without fault on the part of the Panel is immaterial.

(b)   failure to accord procedural fairness

67. On the assumption that the foregoing conclusion is erroneous, it is necessary to assess whether the appellant was denied procedural fairness by not being given an opportunity for an interview and clinical examination, as requested by her solicitor, or to take alternative steps if her request were denied. It was common ground that the Review Panel was obliged to accord the appellant procedural fairness.

68. The primary judge correctly rejected any unqualified analogy between the function of a review panel and that of a court. [42] He then reasoned that an examination is not otherwise “a self-evident aspect of procedural fairness” and referred again to the decision in Rutland:[43]

“However it was not held that re-examination is an indispensable component of procedural fairness in every review. McColl and Meagher JJA (Macfarlan JA agreeing) said at [46]:

[46] … As the primary judge noted, the obligation of procedural fairness did not necessarily require the Review Panel to examine the respondent: [89]. It did, however, require the Panel to give her the opportunity to address it on whether the inference it proposed to draw concerning an aspect of her functional impairment was available on the facts as they were at that time.”

42. Boyce at [62].

43. Boyce at [63].

69. The primary judge did not at this point advert to the fact that the appellant had asked for an opportunity to be interviewed and clinically examined, a fact of which the Review Panel was unaware. However, he concluded that an “interview”, which he then treated as equivalent to a “hearing”, would only be necessary where there was a “critical issue which affected the review panel’s determination and which would not have been anticipated by the plaintiff, such that she ought to have been given an opportunity to respond.”[44] The judge continued:

“The clinical nature of the Review Panel’s assessment on the particular facts of this case was such that there was nothing she could have contributed in an interview or hearing.”

44. Boyce at [66].

70. This statement assumed both that the brief summary of the appellant’s case in Dr Rochford’s certificate meant that the Panel had all the relevant facts, and that the appellant’s circumstances had not changed since she gave her account to Dr Rochford. The reasoning falls into the error identified by Deane J in Kioa v West:[45]

“Clearly enough, the mere circumstance that there is no apparent likelihood that the person directly affected could successfully oppose the making of a deportation order neither excludes nor renders otiose the obligation of the administrative decision-maker to observe the requirements of procedural fairness. Indeed, the requirements of procedural fairness may be of added importance in such a case in that they ensure an opportunity of raising for consideration matters which are not already obvious.”

45. (1985) 159 CLR 550 at 633; [1985] HCA 81.

71. Finally, with respect to the separate concept of a clinical examination, the judge concluded:

“So far as the assessment would be affected by the plaintiff’s description of symptoms, she had given a description to Dr Rochford and the Panel members had it in the documents before them.”

72. This too is not a basis for denying the person an opportunity to have a clinical examination in order to (a) correct any errors in the account in Dr Rochford’s certificate, (b) flesh out the detail which was probably missing from the brief record, and (c) update the description of her circumstances and symptoms.

73. However, the issue is not whether she should have been given an opportunity to give her account of her symptoms and the effect on her daily activities, nor whether the Review Panel should have carried out a clinical examination, but rather, in circumstances where she had expressly requested that those steps be taken, whether she should have been advised in advance that they would not be taken so that further information could be supplied indirectly by means of a submission.

74. A judicial assumption that an opportunity to provide further evidence or material could not have affected the outcome is fraught with difficulty. In Re Refugee Tribunal; Ex parte Aala,[46] the prosecutor, Mr Aala, was advised by the Tribunal before which he was appearing that it had certain material which he had provided in advance of the hearing. As a result, he did not make submissions repeating what was in that material. In fact the Tribunal did not have it. Gleeson CJ stated:[47]

“It cannot be concluded that the denial of that opportunity made no difference to the outcome of the proceeding. [48] The Tribunal's conclusion that certain information given by the prosecutor was a concoction was based, in part, upon an unwarranted assumption as to what the prosecutor had previously told various authorities; an assumption which, according to the evidence, the prosecutor could and would have corrected had he not been inadvertently misled by the Tribunal. It is possible that, even if the prosecutor had been given an opportunity to deal with the point, the Tribunal's ultimate conclusion would have been the same. But no one can be sure of that. Decisions as to credibility are often based upon matters of impression, and an unfavourable view taken upon an otherwise minor issue may be decisive. As a result of the conduct of the Tribunal, the prosecutor was deprived of a fair opportunity of presenting his case, and of correcting an erroneous and unfavourable factual assumption relevant to his credibility. The circumstance that this resulted from an innocent misstatement does not alter the position. The question concerns the nature and extent of the statutory power exercised by the Tribunal, and the condition that the power be exercised in a manner which was procedurally fair; not the good faith of the Tribunal.”

46. (2000) 204 CLR 82; [2000] HCA 57.

47. Aala at [4].

48.    Stead at 145 (Mason, Wilson, Brennan, Deane and Dawson JJ).

75. A central element in this case is that the claimant was willing and able to participate in a further interview and clinical examination and had asked that that happen. The trial judge dismissed both the grounds of constructive failure to exercise a statutory function and procedural unfairness without regard to the letter from the proper officer inviting her to indicate if she objected to a review “on the papers”. When the judge turned to the effect of the letter, he merely said that it “did not alter” the conclusion already reached. He continued:[49]

“Such a letter was incapable of imposing upon the Review Panel an obligation to take into account the views of the claimant as to whether re-examination of herself was required, where no such obligation otherwise arises under the legislation constituting and empowering the Panel. Despite this invitation having been extended by the proper officer, neither the Panel’s decision to proceed to its review task without re-examining nor its ultimate decision to issue the Review Certificate were vitiated, in an administrative law sense, by the Panel having not become aware of the plaintiff’s desire to be re-examined.”

49. Boyce at [71].

76. This reasoning cannot be accepted. First, the proffering of an opportunity to allow an applicant to take a particular step can indeed give rise to procedural unfairness if the opportunity is subsequently withdrawn without notice, even if the opportunity need not have been proffered in the first place. Secondly, it was not merely the proffering of an opportunity, but the response with the request for an interview and examination which needed to be addressed. Thirdly, because the Tribunal was unaware of what had transpired, there was no decision to proceed without granting the appellant the steps she sought to have taken, or allow her the opportunity to adopt an alternative course. (Her situation was close to that of persons misled into not making submissions.) Fourthly, the approach adopted by the Review Panel appears to have been based on the proposition that the appellant “agreed with” the application for review. That was patently fallacious; indeed, it suggested that the Panel had not read or understood the substantive reply which had been filed by the appellant’s solicitor. At least, if it took that view, it was a matter which should have been exposed to the appellant to allow her to respond.

77. On appeal, the respondent contended that, accepting that the response to the letter had gone astray, there was no procedural unfairness because no “practical injustice” had occurred, adopting the language of Gleeson CJ in Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam. [50] Senior counsel further submitted that the statement by the appellant’s solicitor as to what steps she would have taken on behalf of the appellant had she known that an interview and clinical examination would be refused, as set out at [35] above, did not demonstrate injustice for two reasons. First, the solicitor did not identify the content of any further submissions which would have been made, so as to allow the Court to assess whether there had been any change in circumstances warranting a further examination. Secondly, the assertion that evidence would have been put before the Review Panel was based on the solicitor’s false belief that the Panel had “ignored the particular findings on examination by Dr Rochford”. [51]

    50. (2003) 214 CLR 1; [2003] HCA 6 at [37].

    51.    Affidavit, Sally Gleeson, 25 November 2016, at par 43.

78. The second submission may be addressed first. As counsel for the respondent recognised, the affidavit was a mixture of factual material and material in the nature of submissions. The passage in which it said that the Panel “ignored” the particular findings on examination by Dr Rochford is argumentative in style; it does not purport to state a fact, but an inference from the large divergence between the 2% reached by the Panel and the 10% reached by the original assessor on the same material. In any event, the beliefs of the solicitor as to how the Panel reached its decision are of no present relevance.

79. The first submission, based on “practical injustice”, needs to be addressed by reference to the issues in Ex parte Lam and to pre-existing and well established principles which were not in issue in Ex parte Lam.

80. Broadly speaking, the reviewing court does not assess the conclusions of the tribunal against the material before it, as it might on an appeal by way of rehearing. The underlying principle derives from the fact that judicial review is only concerned with policing the legal limits of power. The rules applied in respect of judicial review where there is an allegation of procedural unfairness are those identified in Stead v State Government Insurance Commission, albeit a case involving an appeal from a civil trial. [52] At trial, evidence had been called as to causation from a medical expert for the defendant; in the course of the plaintiff’s submissions, the trial judge indicated that he did not accept the expert and no further submissions were made on behalf of the plaintiff. The judge ultimately accepted the evidence and, on appeal, the plaintiff’s complaint of procedural unfairness was upheld. The question was whether relief should be withheld on the basis that no miscarriage of justice had occurred because further argument could not have made a difference to the result.

    52. (1986) 161 CLR 141 at 145-147; [1986] HCA 54.

81. The High Court noted that to refuse relief would be to deny the plaintiff a fair trial; subject to one qualification, relief would not be refused: [53]

“That qualification is that an appellate court will not order a new trial if it would inevitably result in the making of the same order as that made by the primary judge at the first trial. An order for a new trial in such a case would be a futility.”

The Court continued: [54]

“It is no easy task for a court of appeal to satisfy itself that what appears on its face to have been a denial of natural justice could have had no bearing on the outcome of the trial of an issue of fact. And this difficulty is magnified when the issue concerns the acceptance or rejection of the testimony of a witness at the trial.”

Further, referring to the judgment of Bollen J in the Full Court, the High Court continued: [55]

“He was conscious that, not having seen the witnesses, he could not evaluate their evidence in the way in which a trial judge can. It is for this very reason that, in our view, the Full Court was disabled in the circumstances of this case from reaching a sound conclusion that a new trial in which the applicant's counsel would have an adequate opportunity of presenting submissions on the issue of causation could make no difference to the result.”

53.    Stead at 145.

54.    Stead at 145-146.

55.    Stead at 146.

82. A similar approach was adopted in the UK in 1971 in Malloch v Aberdeen Corporation,[56] although the UK Supreme Court has recently reopened the issue. [57] In Australia, Stead has been consistently applied in judicial review proceedings, for example, in Ex parte Aala. [58] Ex parte Aala was another case in which a party before a tribunal was misled into not making submissions about a particular matter. Referring to Stead, as already noted, Gleeson CJ said that, “[i]t cannot be concluded that the denial of that opportunity made no difference to the outcome of the proceeding. … It is possible that, even if the prosecutor had been given an opportunity to deal with the point, the Tribunal’s ultimate conclusion would have been the same. But no one can be sure of that. Decisions as to credibility are often based upon matters of impression, and an unfavourable view taken upon an otherwise minor issue may be decisive.”[59]

    56. [1971] 1 WLR 1578, 1582 (Lord Reid).

    57. R (on the application of Bancoult No 3) v Secretary of State for Foreign and Commonwealth Affairs [2018] UKSC 3 at [23], [42] (Lord Mance, Lords Neuberger, Clarke and Reed agreeing); cf [107]-[111] (Lord Kerr, Lady Hale agreeing at [128]).

    58.    Above at fn 46.

    59. Ex parte Aala at [4].

83. To similar effect, Gaudron and Gummow JJ stated:[60]

“However, the conditioning of a statutory power so as to require the provision of procedural fairness has, as its basis, a rationale which differs from that which generally underpins the doctrine of excess of power or jurisdiction. The concern is with observance of fair decision-making procedures rather than with the character of the decision which emerges from the observance of those procedures. Unless the limitation ordinarily implied on the statutory power is to be rewritten as denying jurisdictional error for ‘trivial’ breaches of the requirements of procedural fairness, the bearing of the breach upon the ultimate decision should not itself determine whether prohibition under s 75(v) [of the Constitution] should go. The issue always is whether or not there has been a breach of the obligation to accord procedural fairness and, if so, there will have been jurisdictional error for the purposes of s 75(v).”

60. Ex parte Aala at [59].

84. In these cases, the Court was not concerned with what further submissions might have been made, because the reviewing court is in no position to assess the significance which might have been paid to further submissions, whatever they might be, by the tribunal of fact, which did not hear them. As further explained by Gaudron and Gummow JJ, cases where futility will lead to a refusal of relief include cases where “the decision-maker was bound by the governing statute to refuse” the application or the applicant had been stopped in making submissions “on a point of law which must clearly have been answered unfavourably” to the applicant. [61] No such conclusion could be reached in the circumstances of this case.

    61. Ex parte Aala at [58].

85. Ex parte Lam concerned the cancellation of the applicant’s visa. The decision-maker had to take into account the best interests of his children. The applicant had supplied submissions in relation to the interests of his children and his bond with them and included a letter from the carers of the children. A letter from a departmental officer sought contact details for the children’s carers because it wished to contact them before making a decision to cancel the visa. The applicant supplied the information, but the department did not take steps to contact the relevant carer, Ms Tran. The visa was cancelled and the applicant sought to review the cancellation on the basis that he had had a “legitimate expectation” that Ms Tran would be contacted before a decision was made. Gleeson CJ, after referring to the sole basis of complaint, namely the lack of contact with Ms Tran after the letter was sent, stated:[62]

“That being what is involved in the complaint, it is also important to note what is not involved. There is no suggestion that the applicant in any way relied to his disadvantage upon the representation that Ms Tran would be contacted after 7 November 2000. In argument, any such suggestion was disclaimed. The applicant does not seek, either by evidence or by argument, to make out a case that he was deprived of an opportunity to put any further information or submissions to the respondent, or that he did, or failed to do, anything, because of any belief or understanding that was engendered in his mind by the letter of 7 November.”

62. Ex parte Lam at [19].

86. The application was dismissed, on the basis that disappointment of a “legitimate expectation” provided no independent ground of review. As further explained by the Chief Justice:[63]

“But what must be demonstrated is unfairness, not merely departure from a representation. Not every departure from a stated intention necessarily involves unfairness, even if it defeats an expectation. In some contexts, the existence of a legitimate expectation may enliven an obligation to extend procedural fairness. In a context such as the present, where there is already an obligation to extend procedural fairness, the creation of an expectation may bear upon the practical content of that obligation. [64] But it does not supplant the obligation. The ultimate question remains whether there has been unfairness; not whether an expectation has been disappointed.”

63. Ex parte Lam at [34].

64. See Haoucher v Minister for Immigration and Ethnic Affairs (1990) 169 CLR 648 at 672 per Gaudron J.

87. In a passage expressly relied upon by the respondent, the Chief Justice continued:[65]

“A common form of detriment suffered where a decision-maker has failed to take a procedural step is loss of an opportunity to make representations. … A particular example of such detriment is a case where the statement of intention has been relied upon and, acting on the faith of it, a person has refrained from putting material before a decision-maker. In a case of that particular kind, it is the existence of a subjective expectation, and reliance, that results in unfairness. Fairness is not an abstract concept. It is essentially practical. Whether one talks in terms of procedural fairness or natural justice, the concern of the law is to avoid practical injustice.”

65. Ex parte Lam at [37].

88. To similar effect, McHugh and Gummow JJ stated:[66]

“It was not suggested that in reliance upon that letter the applicant had failed to put to the Department any material he otherwise would have urged upon it.” [67]

66. Ex parte Lam at [106].

67.    See also Hayne J at [122] and Callinan J at [148].

89. Ex parte Lam was an extreme case. Statements that the applicant placed no reliance on the letter and would not have placed further material before the decision-maker had he been told that the department did not intend to contact the carer again, does not mean that, in order to succeed, all applicants must put on evidence as to such matters. Ex parte Lam sounded the death knell of legitimate expectations as an independent head of review in Australia, but otherwise did not change established principle. So much may be inferred from Applicant NAFF of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs,[68] decided less than two years after Ex parte Lam. The applicant was interviewed by the Tribunal, at the conclusion of which the Tribunal member said:[69]

“Given that there are some inconsistencies with regard to the dates of the detentions and the number of detentions, I will have to write to you about those.”

68. (2004) 221 CLR 1; [2004] HCA 62.

69. Applicant NAFF at [11].

90. In fact she did not do so. The Tribunal decision, adverse to the applicant, was challenged for procedural unfairness. The High Court identified procedural unfairness in the following terms:[70]

“It is possible that the reason why the Tribunal member failed to send the promised questions was that, on reflection, she thought that everything she required had in fact already been put before her, or that a resolution of the perceived inconsistencies in the appellant's statements was not crucial in deciding the review against him. If either of these explanations, or any other explanation, existed, it is to be expected that the Tribunal member would have advanced it, either by a letter to the appellant or in her detailed reasons for decision. She did not do so. It is probable, when the workload under which the Tribunal labours is borne in mind, that the Tribunal member did not send the promised questions because she had forgotten or overlooked the fact that she had made the promise to send them. Her failure to give any indication otherwise suggested that her original impression that the review process was incomplete had not altered on reflection, and was soundly based. It would not be complete until the steps which she had thought could remedy its defects had been carried out. The failure to complete the review process was a failure to comply with the duty imposed by s 414(1) to conduct the review and the duty under s 425(1) to hear from the appellant.”

The Court then stated:[71]

“The entitlement of the appellant to complain about the failure of the Tribunal to complete the review process does not depend on the tender of evidence that he was misled or prejudiced. It is true that in some cases it may be necessary for disappointed applicants for review to file evidence about what steps they would have taken if the alleged breach of procedural fairness had not occurred. But the failure of the present appellant to file evidence about what he would have done had the Tribunal member's promise been fulfilled is not fatal to the appeal for at least one reason specific to the present case. While the appellant knew that the foreshadowed questions would relate to inconsistencies in what he had said about the detentions, it would not have been possible for him to file an affidavit stating what answers he would have given to particular questions without knowing what the questions would have been. He could not anticipate what material he would be asked to supply, nor could he anticipate how any particular material to be requested would relate to the potential lines of reasoning of the Tribunal member, and hence he could not anticipate what he might usefully say on the subject generally.”

70. Applicant NAFF at [32].

71. Applicant NAFF at [34].

91. Most recently, the High Court returned to the question of “legitimate expectations” in Minister for Immigration and Border Protection v WZARH. [72] In two joint judgments, the Court affirmed that the concept of “legitimate expectations” is both unnecessary and unhelpful. The facts have been briefly stated above. [73] Kiefel, Bell and Keane JJ identified two issues for determination, namely “whether it was unfair for the Second Reviewer to proceed by reference only to some of the information made available to the First Reviewer and the impressions as to his credibility formed from those materials, and whether it was unfair to deny the respondent the opportunity to be heard on whether the IMR should proceed in that way.”[74]

    72.    Above fn 28.

    73. At [51].

    74. WZARH at [38].

92. The joint reasons then addressed the first issue in the passages set out at [51] above and continued:

[45]   As to the second of the questions which arise in this case, for reasons entirely beyond the respondent's control, information available from the interview conducted by the First Reviewer was only partly reflected in the recommendation made to the Minister; and because the respondent was not told of the alteration of the review process, he was denied an opportunity to be heard as to how the changed process might be completed so that he would not be disadvantaged by the change. As Nicholas J rightly said,[75] the respondent:

‘was deprived of the opportunity to apply for an oral hearing before the [Second Reviewer], an application which … the Minister would have been hard pressed to resist.’

[46]   It is difficult to identify any reasonable basis on which the Second Reviewer could fairly have refused the respondent an opportunity to be heard on the question of how the review process should proceed once that process was altered by the withdrawal of the First Reviewer. [76] Elementary considerations of fairness required that the respondent be informed that the process explained to him by the First Reviewer would not be completed so that he would have the opportunity to be heard on the question of how the process should now proceed.

[47]   In Lam,[77] Gleeson CJ said:

‘There are undoubtedly circumstances in which the failure of an administrative decision‑maker to adhere to a statement of intention as to the procedure to be followed will result in unfairness and will justify judicial intervention to quash the decision’.”

75. WZARH v Minister for Immigration and Border Protection (2014) 230 FCR 130 at 148 [57].

76. Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 at 352 [31], 369 [86], 379‑380 [120]‑[124]; [2013] HCA 18.

77. (2003) 214 CLR 1 at 9 [25].

93. Gageler and Gordon JJ in WZARH dealt expressly with the observations of Gleeson CJ in Ex parte Lam at [58] and [60]. Read in their context, those observations were as follows:

“[55]   The concern of procedural fairness, which here operates as a condition of the exercise of a statutory power, is with procedures rather than with outcomes. It follows that a failure on the part of an assessor or reviewer to give the opportunity to be heard which a reasonable assessor or reviewer ought fairly to give in the totality of the circumstances constitutes, without more, a denial of procedural fairness in breach of the implied condition which governs the exercise of the Minister's statutory powers of consideration.

…

[57]   That approach to the determination of the existence and consequence of a breach of an implied condition of procedural fairness governing the exercise of a statutory power is wholly consistent with the often-repeated observation of Gleeson CJ in Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam [78] that the concern of procedural fairness is to ‘avoid practical injustice’, and with his Honour's conclusion in that case that there was no denial of procedural fairness where ‘[n]o practical injustice ha[d] been shown’. [79] The absence of practical injustice in Lam lay in the fact that ‘[t]he applicant lost no opportunity to advance his case’,[80] it was not ‘shown that he lost an opportunity to put any information or argument to the decision-maker, or otherwise suffered any detriment’. [81]

[58]   Contrary to the submission of the Minister in this appeal, and as has repeatedly been recognised in the Full Court of the Federal Court. [82] Lam is not authority for the proposition that it is incumbent on a person who seeks to establish denial of procedural fairness always to demonstrate what would have occurred if procedural fairness had been observed. What must be shown by a person seeking to establish a denial of procedural fairness will depend upon the precise defect alleged to have occurred in the decision-making process.

…

[60]   Where, however, the procedure adopted by an administrator can be shown itself to have failed to afford a fair opportunity to be heard, a denial of procedural fairness is established by nothing more than that failure, and the granting of curial relief is justified unless it can be shown that the failure did not deprive the person of the possibility of a successful outcome. The practical injustice in such a case lies in the denial of an opportunity which in fairness ought to have been given. [83] ”

78. (2003) 214 CLR 1 at 14 [37]; [2003] HCA 6.

79. (2003) 214 CLR 1 at 14 [38].

80. (2003) 214 CLR 1 at 14 [38].

81. (2003) 214 CLR 1 at 13 [36].

82. Eg WACO v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 131 FCR 511 at 524-525 [57]-[58]; NBNB v Minister for Immigration and Border Protection (2014) 220 FCR 44 at 46 [4].

83. WACO v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 131 FCR 511 at 525 [58].

94. The present case was not one in which a claimant was dissuaded from making submissions because she was misled by the decision-maker; rather it was a case in which the decision-maker failed to provide an opportunity either for an interview and clinical examination, or for further submissions, because it was itself misled as to the appellant’s wishes, through no fault of hers. The result, however, was the same: the appellant was deprived of an opportunity to put her case fully before the Review Panel, either as to why she “objected” to the Panel proceeding “on the papers”, or as to what she might do if her objection were rejected. That constitutes procedural unfairness; she did not have to tell the reviewing court what she would have said if she had been accorded the opportunity by the Panel, not least because the court could not (and should not) assess how the Panel might have responded.

95. Further, given the criteria and the statutory scheme outlined above, including by reference to the Permanent Impairment Guidelines, this is a case where impressions created by a personal interview and clinical examination may well have been of such potential significance that a reasonable review panel could not properly have denied her the opportunity for such a process had it been aware that she sought it. That alone may be sufficient to justify a finding of procedural unfairness. It cannot be demonstrated that the absence of such opportunities “did not deprive [the appellant] of the possibility of a successful outcome”, and hence relief should not be refused.

The terms of the letter

96. Although the appeal must be upheld for the reasons already given, it is appropriate to note that the letter from the proper officer, which reflected the language of the practice note, spoke of a party who has “objected to the review being conducted ‘on the papers’.” [84] That aspect of the practice note is inconsistent with the preceding statement of principle, namely that the panel “should generally include a re-examination of the claimant, except in cases where there is no dispute, ambiguity or uncertainty as to the clinical findings that are required in order to complete all aspects of the assessment.”

    84.    Practice Note, par 4.a.ii.

97. The importance of an interview and clinical examination in circumstances where the criteria indicate that information supplied by the claimant will be material, if not critical, casts doubt on the propriety of a letter which appears to assume that the review will be conducted “on the papers” unless the claimant “objects” and further requires that, if the claimant does object, he or she should provide reasons why an examination is required.

98. Whether such letters are in identical form where it is the claimant who seeks review, rather than the respondent, is not apparent from the evidence. In either case, the underlying inference of an assumption against interview and clinical examination is inconsistent with the principles discussed above.

99. Further, the letter required a response “by the initial conference date”, but no date was identified, presumably because no date had then been fixed. Whether the claimant was advised of the date in a manner which reiterated the right to make a request (or “objection”) is not known. No harm was done in the present case because the appellant had an experienced solicitor.

Orders

100. The Court should make the following orders:

1. Allow the appeal and set aside the orders made in the Common Law Division on 20 June 2017.

2. Order that the Review Panel certificates dated 31 August 2016 and 5 September 2016 be set aside.

3. Order that the first respondent pay the appellant’s costs of the appeal.

4. Order that the first defendant (Allianz) pay the plaintiff’s costs in the Court below.

101. MACFARLAN JA: I agree with the judgments of both Basten JA and Sackville AJA.

102. SACKVILLE AJA: I am grateful to Basten JA for recording the facts and setting out the relevant provisions of the following:

• the Motor Accidents Compensation Act 1999 (NSW) (MAC Act);

• the Guidelines for the Assessment of the Degree of Permanent Impairment of an Injured Person (PI Guidelines), issued by the State Insurance Regulatory Authority (Authority) pursuant to s 44(1)(c) of the MAC Act;

• the Medical Assessment Guidelines (MA Guidelines) issued by the Authority pursuant to s 44(1)(d) of the MAC Act; and

• Practice Note 3/2005 (Practice Note) issued by the Authority for “the provision of training and information to medical assessors” pursuant to s 65(2) of the MAC Act.

Background

103. The appellant commenced proceedings in the Common Law Division seeking judicial review of the Review Panel Certificate issued on 31 August 2016 by the Medical Review Panel (Review Panel) pursuant to s 63(4) of the MAC Act. The Review Panel revoked the Medical Assessment Certificate issued by Dr MJ Rochford on 6 May 2016 which assessed the degree of permanent impairment of the appellant for the purposes of s 131 of the MAC Act at 10 per cent. In lieu of that assessment, the Review Panel assessed the appellant’s degree of permanent impairment relating to injuries sustained by her in the motor vehicle accident of 8 June 2012 at two per cent. The Review Panel described the appellant’s injuries resulting from the accident as “Urinary bladder-overactive”.

104. In order for the appellant to be entitled to damages for non-economic loss s 131 of the MAC Act requires that her degree of permanent impairment be greater than 10 per cent. The consequence of the Review Panel’s assessment, taking into account other Medical Assessment Certificates issued in relation to different injuries sustained by the appellant, was that she could not satisfy the statutory threshold and thus was not entitled to damages for non-economic loss.

105. The appellant’s summons in the Common Law proceedings alleged that the Authority should have advised the appellant’s solicitor that the Review Panel would not interview the appellant or, alternatively, that the Review Panel should have interviewed the appellant before making its decision. The failure to take either course was said to constitute a denial of procedural fairness.

106. As the primary Judge noted, the appellant’s submissions in the Common Law proceedings strayed from the grounds identified in the summons. Among the additional arguments advanced on her behalf, the appellant contended that the decision comprised in the Review Panel Certificate was vitiated by jurisdictional error because the Panel was required by statute to conduct a re-examination of the appellant but had failed to do so.

107. The appellant’s notice of appeal identifies 17 grounds of appeal. In my opinion it is necessary to deal only with the contention that the primary Judge erred in failing to conclude that the Review Panel denied the appellant procedural fairness. I express no view on the other grounds raised by the appellant some of which raise issues not fully canvassed in the parties’ submissions.

Procedural fairness

PI Guidelines and the Practice Note

108. Mr Rewell SC, who appeared for the first respondent (Insurer) did not dispute that the principles of procedural fairness apply to a determination by the Review Panel. [85] Nor did Mr Rewell dispute that the PI Guidelines applied to the Review Panel’s review of Dr Rochford’s assessment. [86] Thus the Review Panel, in assessing the degree of the appellant’s impairment, had to follow the three stages specified in cl 1.20 of the PI Guidelines. The second of the three stages is as follows:

“(ii)   An interview and a clinical examination, wherever possible, to obtain the information specified in the [MA Guidelines] and the AMA 4 Guides necessary to determine the percentage impairment”.

The Review Panel was required by cl 1.23 of the PI Guidelines to “only consider the impairment as at the time of assessment”.

85. Frost v Kourouche [2014] NSWCA 39; 66 MVR 140 at [31] (Leeming JA, Beazley P and Basten JA agreeing).

86. Allianz Australia Insurance Ltd v Rutland [2015] NSWCA 328 at [10] (McColl and Meagher JJA, Macfarlan JA agreeing).

109. The Practice Note was issued pursuant to the Authority’s power to provide training and information to assessors. Nonetheless, Mr Rewell correctly accepted that the contents of the Practice Note can be taken into account in determining whether the appellant was denied procedural fairness. The Practice Note includes the following provisions:

“4a.   General Principles:

i   The Review Panel should generally include a re-examination of the claimant, except in cases where there is no dispute, ambiguity or uncertainty as to the clinical findings that are required in order to complete all aspects of the assessment.

ii   If the Review Panel is informed that a party has objected to the review being conducted ‘on the papers’, then the Panel should generally conduct a re-examination.”

The appellant’s request

110. The Authority wrote to the appellant’s solicitor on 9 August 2016 inviting her to indicate whether the appellant objected to the Review Panel being conducted without an examination and, if so, to provide reasons why an examination was required. As Basten JA has pointed out, the letter was apparently drafted by reference to par 4(a)(ii) of the Practice Note and seems not to have taken account of the general principle stated in par 4(a)(i) of the Practice Note[87] or the terms of cl 1.20(ii) of the MA Guidelines. [88]

     87. Set out at [109] above.

     88. Set out at [108] above.

111. In any event, the solicitor’s responses made it clear that the appellant wished to be examined by the Review Panel. Indeed the solicitor’s letter of 11 August 2016 asserted that the Review Panel could not give proper consideration to the application for review without an examination of the appellant, particularly having regard to the Review Panel’s duty to determine the matter afresh. The solicitor’s letter was not passed on to the Review Panel which proceeded on the erroneous assumption that the appellant did not object to the review being conducted on the documentation provided to the Review Panel. The appellant’s solicitor was not notified that the Review Panel did not propose to re-examine her until after the Review Panel made its assessment of her percentage permanent impairment by reason of the injuries to the appellant’s bladder.

Principles

112. A decision-maker’s departure from a representation made by it or on its behalf as to the manner in which a review or assessment is to take place does not, of itself, constitute a denial of procedural fairness to the claimant. [89] However, such a departure may constitute a denial of procedural fairness if the circumstances show that the claimant has suffered practical injustice.

     89.    M Aronson, M Groves and G Weeks, Judicial Review of Administrative Action and Government Liability, Law Book Co, 6th ed 2017 at [7.200].

113. In Re Minister for Immigration and Multicultural and Indigenous Affairs; ex parte Lam (Ex parte Lam),[90] Gleeson CJ observed that:[91]

“the content of the requirements of fairness may be affected by what is said or done during the process of decision-making, and by developments in the course of that process, including representations made as to the procedure to be followed. So, for example, if a decision-maker informs a person affected that he or she will hear further argument upon a certain point, and then delivers a decision without doing so, it may be easy to demonstrate that unfairness is involved. But what must be demonstrated is unfairness, not merely departure from a representation. Not every departure from a stated intention necessarily involves unfairness, even if it defeats an expectation. … The ultimate question remains whether there has been unfairness; not whether an expectation has been disappointed.”

Gleeson CJ went on to say that a common example of practical injustice resulting from a decision-maker’s failure to take a procedural step is where the claimant relies on the decision-maker’s statement of intention and refrains from putting forward material to support his or her case. [92]

90. (2003) 214 CLR 1; [2003] HCA 6.

91. Ex parte Lam at [34].

92. Ex parte Lam at [37].

114. Gleeson CJ identified Haoucher v Minister for Immigration and Ethnic Affairs (Haoucher)[93] as a case in which a decision-maker’s failure to take a procedural step caused a claimant to lose an opportunity to make representations and thus denied the claimant procedural fairness. In Haoucher, the Minister had a statutory power to order the deportation of a non-citizen who had been convicted of certain offences. A ministerial policy statement tabled in Parliament stated that only in exceptional circumstances would the Minister overturn a recommendation by the Administrative Appeals Tribunal to revoke a deportation order. The High Court, by majority, held that procedural fairness required that the deportee be given the opportunity to be heard on the question of exceptional circumstances. [94] Specifically, the deportee was entitled to know what circumstances were said by the Minister to be exceptional and to be given an opportunity to address the question. [95]

     93. (1990) 169 CLR 648; [1990] HCA 22.

     94.    Haoucher at 655 (Deane J); at 665, 670-671 (Toohey J); at 684 (McHugh J). Dawson and Gaudron JJ dissented.

     95.    Haoucher at 671.

115. Some of the language in the majority judgments in Haoucher refers to “legitimate expectations”, a concept since rejected as a touchstone for determining whether procedural fairness should be accorded to a person or for determining the content of procedural fairness. [96] But as Gleeson CJ’s reference shows, the decision in Haoucher does not depend on the concept of legitimate expectations, but on the principle that if a decision-maker has represented that a particular procedure will be followed, fairness may require that the decision-maker be held to the representation. [97]

     96. Minister for Immigration and Border Protection v WZARH (2015) 256 CLR 326; [2015] HCA 40 at [30] (Kiefel, Bell and Keane JJ).

     97.    A principle accepted by Dawson J in dissent in Haoucher: at 659-660.

116. If a decision-maker fails to follow an announced procedure, there may be an issue as to whether the claimant must show that he or she would have acted differently had the correct procedure been followed. In Ex parte Lam, the Minister was considering whether to cancel the applicant’s visa on character grounds. A representative of the Minister indicated to the applicant that the Department wished to contact a carer of the applicant’s children to assess the impact of cancellation of the visa on the children. No such contact took place. However, there was no suggestion that the applicant would have acted differently had he had known that the Department would not contact the carer.

117. The applicant’s claim to have been denied procedural fairness was rejected. According to Gleeson CJ, no practical injustice had been shown because the applicant had not lost any opportunity to present his case and had not relied to his disadvantage on the Department’s statement of intention. [98] Other members of the Court took the same view. [99]

     98. Ex parte Lam at [38].

     99.    Ex parte Lam at [106] (McHugh and Gummow JJ); at [122] (Hayne J); at [149] (Callinan J).

118. The decision in Ex parte Lam does not mean that it is always necessary for a person seeking to establish a denial of procedural fairness to prove what he or she would have done if procedural fairness had been observed. As Gageler and Gordon JJ explained in Minister v WZARH: [100]

“[58]   … What must be shown by a person seeking to establish a denial of procedural fairness will depend upon the precise defect alleged to have occurred in the decision-making process.

[59]   There are cases in which conduct on the part of an administrator in the course of a hearing can be demonstrated to have misled a person into refraining from taking up an opportunity to be heard that was available to that person in accordance with an applicable procedure which was otherwise fair. To demonstrate that the person would have taken some step if that conduct had not occurred is, in such a case, part of establishing that the person has in fact been denied a reasonable opportunity to be heard.

[60]   Where, however, the procedure adopted by an administrator can be shown itself to have failed to afford a fair opportunity to be heard, a denial of procedural fairness is established by nothing more than that failure, and the granting of curial relief is justified unless it can be shown that the failure did not deprive the person of the possibility of a successful outcome. The practical injustice in such a case lies in the denial of an opportunity which in fairness ought to have been given.” (Citations omitted.)

100.    Minister v WZARH at [58]-[60].

119. The facts of Minister v WZARH bear some resemblance to those of the present case. The claimant sought an “Independent Merits Review” of a decision of a delegate of the Minister to refuse the claimant’s application for a protection visa. The claimant was interviewed by a reviewer who told him she would undertake a rehearing of his claim and consider all information he provided. Subsequently, a second reviewer took over the review. The second reviewer rejected the claimant’s application without a further interview of the claimant, although the second reviewer had available a transcript and recording of the interview conducted by the first reviewer. The High Court held that the second reviewer had denied the claimant procedural fairness by failing to conduct another face to face interview.

120. The plurality in Minister v WZARH pointed out that the first reviewer could take into account the impression gained at the interview in determining whether the claimant’s account of events was truthful. This fact provided a basis on which to distinguish Ex parte Lam. [101] The plurality reasoned as follows: [102]

“[38]   It may be accepted that, as the Minister argued, the [claimant] was not entitled to insist upon the observance of a particular form of decision making process. But that is not to the point. Rather, the questions are whether it was unfair for the Second Reviewer to proceed by reference only to some of the information made available to the First Reviewer and the impressions as to his credibility formed from those materials, and whether it was unfair to deny the [claimant] the opportunity to be heard on whether the IMR [Independent Merits Review] should proceed in that way.

…

[40]   The fact that the First Reviewer interviewed the [claimant] affords, at the very least, some practical indication of what procedural fairness required in the circumstances of this case. An interview in the course of the IMR process provides the reviewer with opportunities for direct questioning of the [claimant]; for clarification of areas of confusion or poor understanding on both sides; and for the observation of the demeanour of the [claimant]. Impressions formed by a decision maker from the demeanour of an interviewee may be an important aspect of the information available to the decision maker. That this is so has long been recognised.” (Citations omitted.)

101.    Minister v WZARH at [37] (Kiefel, Bell and Keane JJ).

102.    Minister v WZARH at [38], [40].

121. It follows from Minister v WZARH that there are circumstances in which a decision-maker’s failure to interview (or, in a medical case, examine) a claimant may constitute a denial of procedural fairness. It also follows that in order to make out a denial of procedural fairness, a claimant does not necessarily have to show what he or she would have done had procedural fairness been afforded. The touchstone is whether the claimant has shown that the procedure adopted involved practical injustice.

Significant features of the present case

122. There are a number of features of this case that are of significance on the question of whether the appellant was denied procedural fairness.

123. First, the Review Panel was required by cl 1.20(ii) of the PI Guidelines to conduct an interview and clinical examination, wherever possible, to obtain the information specified in the MA Guidelines and the AMA 4 Guidelines necessary to determine the percentage impairment.

124. Secondly, the Practice Note, which contains General Principles for the guidance of the Review Panel, states that:

• the Review Panel should generally conduct a re-examination of the claimant, except where there is no dispute, ambiguity or uncertainty as to the clinical findings required in order to complete all aspects of the assessment; and

• in any event, if the Review Panel is informed that a party has objected to the review being conducted on the papers, the Panel should generally conduct a re-examination.

125. Thirdly, Chapter 11 of the AMA 4 Guidelines, which applies to the urinary and reproductive systems, provides criteria:

“for evaluating the effects that permanent impairments of the urinary and reproductive systems have on the ability of individuals to perform their activities of daily living”.

Chapter 11 states that a medical evaluation report should include information on a variety of clinical and related matters including “Impact of medical condition(s) on life activities”.

126. Chapter 11.3 of the AMA 4 Guidelines identifies four classes of “Impairment of Whole Person” where there is permanent impairment of the bladder. A patient is within Class 1 (0 to 15 per cent impairment) when:

“the patient has symptoms and signs of bladder disorder requiring intermittent treatment and normal functioning between the episodes of malfunctioning.”

127. Fourthly, Dr Rochford conducted an interview with and examination of the appellant. He therefore had the advantage afforded by an interview and examination in applying the criteria laid down by Chapter 11 of the AMA 4 Guidelines

128. Fifthly, in response to the Authority’s invitation to indicate whether the appellant objected to the review being conducted without an examination, the appellant’s solicitor in effect asserted that an examination was essential if the Review Panel was to carry out its task. Since the reply was never passed on, the Review Panel was unaware that the appellant did indeed object to the review being conducted without an examination. Accordingly, the Review Panel’s determination was made without a re-examination of the appellant.

129. Sixthly, the Review Panel was required by the PI Guidelines, cl 1.23, to consider the impairment at the date of its assessment, not the date of Dr Rochford’s assessment.

Determination

130. The Practice Note constituted a public pronouncement that the Review Panel, if the appellant objected to the review being conducted on the papers, would “generally” conduct a re-examination. The Review Panel clearly accepted that it should proceed consistently with the Practice Note, since the letter it sent to the appellant’s solicitor was drafted by reference to the language in the Practice Note.

131. Independently of the Practice Note, by virtue of the PI Guidelines the Review Panel was obliged, wherever possible, to obtain the information specified in the AMA 4 Guidelines necessary to determine the percentage impairment. Clearly in this case a re-examination of the appellant was possible. It may be accepted that it was for the Review Panel to make a judgment as to whether a re-examination was “necessary to determine the percentage impairment” referable to the injuries to the appellant’s bladder. But in making that judgment the Review Panel had to take into account not merely the objective clinical manifestations of the appellant’s condition, but (in the language of the AMA 4 Guidelines) the impact of the appellant’s urinary condition on her ability to perform the activities of daily living. The fact (unknown to the Panel) that the appellant not only wished to be re-examined but considered a re-examination essential if the Review Panel was to make its decision afresh, was clearly material to the question of whether a re-examination was “necessary to determine the percentage impairment”.

132. In these circumstances, the Authority’s failure to inform the Review Panel that the appellant insisted on a re-examination resulted in practical injustice in at least two respects. First, the Review Panel was unable to take into account the appellant’s objection when considering whether or not the general rule stated in par 4(a)(ii) of the Practice Note should be followed because the Review Panel was not told that she objected to the review being conducted unless a re-examination took place. Secondly, the Review Panel was unable to make a fully informed decision as to whether a re-examination was “necessary to determine the percentage impairment” unless it took into account that the appellant considered a re-examination to be essential for the proper discharge of the Review Panel’s statutory functions.

133. The Review Panel’s judgment on these matters had to be made for the purpose of assessing the degree of the appellant’s permanent impairment or as at the date of the assessment. That task, as has been noted, did not merely require the Review Panel to make an objective clinical judgment about the nature and extent of the physical damage to the appellant’s bladder. The Review Panel had to assess the impact of the physical damage on the appellant’s “activities of daily living”. The appellant’s own experiences and her perceptions of the impact of her condition on her daily life were directly relevant to that question.

134. In my view, this is a case where the procedure adopted by the Review Panel, albeit through no fault of the members, denied the appellant a fair opportunity to be heard and therefore resulted in practical injustice. The appellant was denied the opportunity to have the Review Panel make a fully informed decision, in accordance with the published criteria, as to whether it should conduct a re-examination.

135. It cannot be said that if the Review Panel had before it the appellant’s request for a re-examination it would still have decided that a re-examination was neither necessary nor appropriate. And it certainly cannot be said that the Review Panel’s assessment would inevitably have been the same even if a re-examination had taken place. [103] It follows that it was not essential for the appellant to demonstrate what she or her advisers would have done had the Review Panel informed her in a timely fashion that it intended to reject her request for a re-examination to take place. Nor was it necessary for the appellant to show that her actions were likely to have made a difference to the Review Panel’s decision. The procedure adopted by the Review Panel involved practical injustice to the appellant.

     103. Stead v State Government Insurance Office (1986) 161 CLR 141; [1986] HCA 54 at 145 per curiam.

136. If, contrary to my view, the appellant had to demonstrate that, if given the opportunity, she would have taken further steps to attempt to persuade the Review Panel to assess her degree of permanent impairment at higher than two per cent, the appellant discharged that burden.

137. The appellant’s solicitor, Ms Gleeson, gave unchallenged evidence that the Review Panel did not advise her of their decision not to re-examine the appellant until after the Review Panel had issued its certificate assessing the appellant’s whole person impairment at two per cent. Ms Gleeson further stated as follows:

“If I had been advised by the Review Panel that their intention was to determine the matter without examining the [appellant], then I would have provided the Review Panel with further material to assist them in making their determination. The written material would have included, for example, the [appellant’s] updated statement, outlining the material facts pertaining to her bladder dysfunction and its impact on her daily life, to assist the Panel in making its determination. The relevance of the Panel being able to see and properly assess the [appellant] is crucial because the assessment of whole person impairment relating to the [appellant’s] bladder dysfunction must be made according to medical guidelines which provide for a range of impairment of whole person impairment in the area of bladder dysfunction, ranging from between 0% to 15%.”

138. As Mr Rewell pointed out, this evidence was perhaps less precise than it might have been, in that the affidavit did not specify the additional material on which the appellant wished to rely. Nonetheless, the evidence establishes that if the Review Panel had notified the appellant’s solicitor that the request for a re-examination had been rejected (a notification that could have been made only if the Review Panel was aware of the request), the appellant would have provided additional material addressing the question the Review Panel was required to consider. Had this course been followed, there is at the very least a real possibility that the Review Panel’s assessment may have been more favourable to the appellant.

139. Contrary to Mr Rewell’s submissions, it is not to the point that there was no specific evidence that the appellant’s physical condition had deteriorated in the four months between the assessment of Dr Rochford and that of the Review Panel. The appellant may well have wished to present more detailed information explaining the effect of her bladder condition on her daily life in order to explain and support Dr Rochford’s assessment of her permanent impairment or even to argue for a higher percentage assessment. The appellant was denied that opportunity.

Orders

140. I agree with the orders proposed by Basten JA. However, I would make the following additional order which was sought in the appellant’s summons filed in the Common Law Division proceedings:

2A   Order that the review of the Certificate issued by the Assessor on 6 May 2016 be referred to the Motor Accidents Medical Assessment Service for referral to a newly constituted Medical Review Panel.

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Endnotes

Decision last updated: 20 February 2018