Bucca v QBE Insurance (Australia) Ltd

[2024] NSWSC 1099

Supreme Court

New South Wales

• Summary available

Medium Neutral Citation:

Bucca v QBE Insurance (Australia) Ltd [2024] NSWSC 1099

Hearing dates:

22 August 2024

Date of orders:

29 August 2024

Decision date:

29 August 2024

Jurisdiction:

Common Law

Before:

Basten AJ

Decision:

(1)   Dismiss the amended summons filed on 9 August 2024.

(2)   Order that the plaintiff pay the first defendant’s costs in this Court.

(3)   Refuse the plaintiff’s application for a certificate under the Suitors’ Fund Act 1951 (NSW).

Catchwords:

ADMINISTRATIVE LAW – judicial review – motor accident – decision of medical review panel – unexplained delay by review panel in providing certificate – whether delay resulted in jurisdictional error or error of law on face of record

COSTS – judicial review of decision of a medical review panel – application of Suitors’ Fund Act 1951 (NSW) – whether costs may be payable by body responsible for delay leading to proceedings

TORTS – negligence – damages – non-economic loss – whether threshold exceeded – medical assessment of permanent impairment

Legislation Cited:

Motor Accidents Compensation Act 1999 (NSW), ss 3AA, 5, 44, 45, Pt 3.4, ss 60, 61, 62, 63, 131, 132, 133

Personal Injury Commission Act 2020 (NSW), ss 6, 64, Sch 1, Div 4A, cll 14A, 14B, 14F

Suitors’ Fund Act 1951 (NSW), ss 2, 6

Supreme Court Act 1970 (NSW), s 69

Personal Injury Commission Rules 2021 (NSW), r 129

Uniform Civil Procedure Rules 2005 (NSW), r 59.4

Cases Cited:

AAI Limited trading as GIO v Amos [2024] NSWCA 65

Ali v AAI Ltd [2016] NSWCA 110; 75 MVR 502

Allianz Australia Insurance Ltd v Habib (No 2) [2015] NSWSC 1870

GIO General Ltd v Smith [2011] NSWSC 802

GIO General Ltd v Smith (No 2) [2011] NSWSC 998

IAG Ltd v Riley [2013] NSWSC 684

Henderson v QBE Insurance (Australia) Ltd [2013] NSWCA 480

Insurance Australia Group Ltd t/as NRMA Insurancev Keen [2021] NSWCA 287

Loper Bright Enterprises v Raimondo 603 US _ (2024) (28 June 2024)

NAIS v Minister for Immigration & Multicultural &Indigenous Affairs (2005) 228 CLR 470; [2005] HCA 77

Northwest Ecosystem Alliance v United States, Fishand Wildlife Service, 475 F 3d 1136 (CA9 2007)

Parisienne Basket Shoes Pty Ltd v Whyte (1938) 59 CLR 369; [1938] HCA 7

Skates v Hills Industries Ltd [2021] NSWCA 142

Victoria v Construction, Forestry, Mining and EnergyUnion (2013) 218 FCR 172; [2013] FCAFC 160

Wingfoot Australia Partners Pty Ltd v Kocak (2013) 252 CLR 480; [2013] HCA 43

Texts Cited:

American Medical Association, Guides to the Evaluation of Permanent Impairment (4th ed, 1993)

G Weeks, Soft Law and Public Authorities: Remedies and Reform (Hart Publishing, 2016)

Medical Assessment Guidelines, 12 February 2021

Motor Accident Permanent Impairment Guidelines, 1 June 2018

A Zhou and J Basten, “Statutory Interpretation: A Court by any other Name” (2023) 97 ALJ 166

Category:

Principal judgment

Parties:

Carolyn Jean Bucca (Plaintiff)
QBE Insurance (Australia) Ltd (First Defendant)
Cameron Thompson, Ian Cameron and Margaret Gibson in their capacities as a review panel under the Motor Accidents Compensation Act 1999 (NSW) (Second Defendants)
President, Personal Injury Commission (NSW) (Third Defendant)

Representation:

Counsel:
M Robinson SC / J Malouf (Plaintiff)
C Allan (First Defendant)

Solicitors:
Gerard Malouf & Partners (Plaintiff)
Moray & Agnew (First Defendant)
Crown Solicitor for NSW (Second and Third Defendants)

File Number(s):

2024/00116952

HEADNOTE

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

On 17 April 2017 the plaintiff, Carolyn Jean Bucca, was injured after a motorised buggy collided with her at the Royal Easter Show. QBE Insurance (Australia) Ltd, the insurer, admitted liability. There was a dispute as to the plaintiff’s degree of permanent impairment, and whether it exceeded the 10% threshold required for damages for non-economic loss. On 7 September 2020, the plaintiff made an application for assessment of her physical injuries and sleep disorder. The plaintiff underwent two separate assessments, and on 9 December 2021 a combined medical certificate was issued that assessed her impairment as above the 10% threshold.

The insurer lodged a review application of the two assessments, and a medical review panel (the Panel) was constituted by the President of the Personal Injury Commission to conduct the review. The Panel re-examined the plaintiff on 17 August and 4 November of 2022 for her physical injuries and sleep disorder respectively. After a delay of over a year, the Panel issued two certificates on 9 and 12 January of 2024 that assessed her whole person impairment below the 10% threshold.

The plaintiff filed an application for judicial review, with the issues for determination being:

1. the temporal limits governing the review;

2. the obligation to determine impairment at the time of the assessment;

3. the legal consequence of the delay in issuing the certificates;

4. the Panel’s interpretation of the guidelines relating to the sleep disorder; and

5. costs.

Held, dismissing the proceedings with costs:

As to issue (i) (governing procedures)

1. Although the plaintiff’s application was a “pending” and “unheard” proceeding at the establishment day for the operation of the Commission, on the issue of the initial medical assessment certificates it became a “completed pre-establishment proceeding” under cl 14B of Sch 1 to the Personal Injury Commission Act 2020 (NSW) (PIC Act): [16]-[18]. Accordingly, the Personal Injury Commission Rules 2021 (NSW) applied and the Medical Assessment Guidelines were not engaged: [25]. The ground of review alleging failure to comply with temporal limitations in the Guidelines is rejected: [26].

2. If the Medical Assessment Guidelines were engaged, they were neither statutory requirements, nor delegated legislation. Failure to comply with their temporal requirements did not constitute an error of law on the face of the record, nor a constructive failure to exercise jurisdiction: [40]-[51].

Parisienne Basket Shoes Pty Ltd v Whyte (1938) 59 CLR 369; [1938] HCA 7 Ali v AAI Ltd [2016] NSWCA 110; 75 MVR 502 considered; GIO v Smith [2011] NSWSC 802 disapproved.

As to issue (ii) (time of determining impairment)

1. Although cl 1.21 of the Permanent Impairment Guidelines required the Panel’s “evaluation” to consider the impairment as it was at the time of the assessment, the purpose of the rule was not to separate the stages of the assessment process, but to remind the Panel that, although reviewing past medical records, its focus was on the current level of impairment, and also it was not to anticipate future changes: [37], [39].

As to issue (iii) (effect of delay)

1. Although the delay in completing the reviews was excessive and unexplained, there was no real and substantial risk that the Panel’s ability to make a proper assessment of the plaintiff’s degree of permanent impairment caused by the physical injuries was affected: [64]. It was apparent that the report of the re-examination of the plaintiff was prepared at the time of the examination. The assessment of medical histories, the parties’ submissions and the contemporaneous notes from the re-examinations all could have been undertaken belatedly without any risk to the soundness of the determination: [62]-[63].

NAIS v Minister for Immigration & Multicultural & Indigenous Affairs (2005) 228 CLR 470; [2005] HCA 77; Wingfoot Australia Partners Pty Ltd v Kocak (2013) 252 CLR 480; [2013] HCA 43 applied. AAI Limited trading as GIO v Amos [2024] NSWCA 65; Insurance Australia Group Ltd t/as NRMA Insurance v Keen [2021] NSWCA 287 considered.

1. Clause of 1.21 of the Permanent Impairment Guidelines, read in context, does not impose any temporal requirements upon the evaluation undertaken by a panel: [37]. As such, the Panel correctly directed its assessment to the plaintiff’s current degree of impairment: [39].

As to issue (iv) (sleep disorder)

1. The assessment of impairment due to a sleep disorder, like the pain causing it, was not assessed separately from the physical injury: [71]. It was not affected by any delay in completing the assessment: [55].

2. The proper construction of the Permanent Impairment Guidelines, with the American Medical Association, Guides to Evaluation of Permanent Impairment (4th ed, 1993) is not a matter for the Court. The construction and application of guidelines prepared with medical input, is for the medical assessors: [74]-[78].

Loper Bright Enterprises v Raimondo 603 US _ (2024) (28 June 2024); Victoria v Construction, Forestry, Mining and Energy Union (2013) 218 FCR 172; [2013] FCAFC 160 referred to.

As to issue (v) (costs)

1. It is open for the insurer to make an application for costs of proceedings caused by the delay to be paid by a body responsible for the delay, possibly the Commission or the State, within 14 days of this judgment: [80].

2. The plaintiff’s application for a certificate under the Suitors’ Fund Act 1951 rejected because she was not the respondent to a successful appeal: [84].

Henderson v QBE Insurance (Australia) Ltd [2013] NSWCA 480; Allianz Australia Insurance Ltd v Habib (No 2) [2015] NSWSC 1870 referred to; GIO General Ltd v Smith (No 2) [2011] NSWSC 998; IAG Ltd v Riley [2013] NSWSC 684 not followed.

JUDGMENT

1. BASTEN AJ: The plaintiff, Carolyn Jean Bucca, was injured on 17 April 2017 when a motorised buggy ran into her at the Royal Easter Show. The first defendant, QBE Insurance (Australia) Limited (the insurer), has accepted liability. However, there is a dispute as to the level of permanent impairment suffered by the plaintiff. Her entitlement to any amount by way of non-economic loss is dependent upon her establishing a level of permanent impairment greater than 10%, for the purposes of the Motor Accidents Compensation Act 1999 (NSW) (the 1999 Act), s 131. The degree of permanent impairment must be assessed by a medical assessor under Pt 3.4 of the 1999 Act: s 132(1).

2. On 7 September 2020, the plaintiff lodged an application for assessment of her permanent impairment. Two separate assessments were undertaken for “musculoskeletal injuries” and for “respiratory/sleep disorder”. Separate certificates assessing her whole person impairment were issued on 7 July 2021 (12%) ^[1] and 12 November 2021 (8%) ^[2] respectively. On 8 December 2021, a combined certificate was issued confirming the plaintiff’s degree of permanent impairment was above the 10% threshold.

   1. Certificate of medical assessor Alan Home (“physical injuries certificate”).

   2. Certificate of medical assessor Christopher Grainge (“sleep disorder certificate”).

3. On 9 and 23 December 2021, the insurer applied for review of the separate assessment certificates, being the statutory procedure for review of the combined certificate. ^[3] The applications were referred to a medical review panel, which, on 17 August and 4 November 2022, undertook medical re-examinations of the plaintiff. However, it was not until 9 January and 12 January 2024 respectively, that the Review Panel issued certificates assessing her respiratory impairment as 0% and her physical impairment at 7%. The present application for judicial review challenges the validity of both certificates issued by the Review Panel, primarily on the basis of the lengthy and unexplained delay in issuing the certificates. That delay was said to invalidate the certificates.

Judicial review proceeding - issues

3. The 1999 Act, s 63(2A).

Grounds of review

4. The summons seeking judicial review, filed on 28 March 2024, identified the grounds discursively in 31 paragraphs. It did not state “with specificity, the grounds on which the relief is sought”, in accordance with Uniform Civil Procedure Rules 2005 (NSW), r 59.4(c). At the commencement of the hearing, the Court granted the plaintiff leave to rely upon an amended summons, which added two further grounds (one of which was promptly abandoned).

5. Nevertheless, the following grounds may be extracted by reference to the separate certificates:

1. sleep disorder certificate:

(a)   the 14-month delay between the re-examination and the issue of the certificate constituted a breach of clause 1.21 of the Motor Accident Permanent Impairment Guidelines (Permanent Impairment Guidelines) because the Review Panel failed to assess the impairment “as it is at the time of the assessment”, which was an error of law;

(b)   the Panel failed to afford the plaintiff procedural fairness “as a result of the excessive delay”, which amounted to jurisdictional error; and

(c)   the Panel erred in law in finding that the Permanent Impairment Guidelines precluded it from identifying a sleep disorder as a secondary injury, relying upon clause 1.38 of the Guidelines.

2. physical injuries certificate:

(a)   the 17-month delay between the re-examination and the issue of the certificate constituted a breach of clause 1.21 of the Permanent Impairment Guidelines because the review panel failed to assess the impairment “as it is at the time of the assessment”, which was an error of law;

(b)   alternatively, the 17-month delay constituted a breach of cll 16.22 and 16.24 of the Medical Assessment Guidelines (2021), which was an error of law; and

(c)   the panel failed to afford the plaintiff procedural fairness “as a result of the excessive delay”, which amounted to jurisdictional error.

6. The amended summons filed on 9 August 2024 added two grounds challenging the adequacy of the reasons of the Review Panel in respect of each certificate. Those grounds were abandoned at the commencement of the hearing, correctly. By way of explanation of the grounds set out above, two aspects of the statutory scheme for medical assessments must be explained.

7. First, s 44(1) of the 1999 Act, as in force in 2018, provided for the State Insurance Regulatory Authority (the Authority) to issue guidelines with respect to four matters, two being relevant for present purposes. As there was an issue as to the legal status of the guidelines issued in 2018, the relevant statutory provisions, as then in force, should be identified:

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.

…

(3)   Motor Accidents Medical Guidelines may adopt the provisions of other publications, whether with or without modification or addition and whether in force at a particular time or from time to time.

(4)   Motor Accidents Medical Guidelines … are to be published in the Gazette ….

…

(6)    Motor Accidents Medical Guidelines must be developed in consultation with relevant medical colleges, including the Royal Australasian College of Physicians, the Royal Australasian College of Surgeons, the Royal Australian College of General Practitioners, the Australian Orthopaedic Association, the para-medical professional associations and other relevant colleges and associations.

(7) Sections 40 (Notice of statutory rules to be tabled) and 41 (Disallowance of statutory rules) of the Interpretation Act 1987 apply to a guideline under this section in the same way as those sections apply to a statutory rule.

8. Pursuant to s 45(2), permanent impairment guidelines were to be issued under s 44(1)(c) within three months of the commencement of the 1999 Act. Further, s 45(3) required that guidelines could only adopt the provisions of another document “as in force at a time before the issue of the guidelines”. Otherwise, s 45(4) mirrored s 44(7), though the language varied in ways immaterial for present purposes.

9. Secondly, although it was common ground that the Permanent Impairment Guidelines applied, there was a dispute as to the application of the Medical Assessment Guidelines issued under s 44(1)(d) of the 1999 Act. Resolution of this dispute required consideration of two statutes which commenced after the date of the plaintiff’s accident in March 2017. The first was the Motor Accident Injuries Act 2017 (NSW) (the 2017 Act), which commenced on 1 November 2017. The second was the Personal Injury Commission Act 2020 (NSW) (the PIC Act), which commenced, together with the Personal Injury Commission Rules 2021 (NSW) (the PIC Rules), on 1 March 2021. It is necessary to resolve this dispute before assessing the plaintiff’s grounds of review.

Transitional provisions

10. On the basis that the 1999 Act, and not the 2017 Act applied,^[4] it might be thought that the Medical Assessment Guidelines (version 5), issued on 12 February 2021, pursuant to s 44(1)(d) of the 1999 Act would also apply. Although the PIC Act post-dated both the 1999 Act and the 2017 Act, the Medical Assessment Guidelines were published after the enactment of the PIC Act, expressly stated that they “support the establishment of the Personal Injury Commission on 1 March 2021” and referred to the fact that the savings and transitional provisions in Sch 1 to the PIC Act provided that “pending proceedings and unexercised rights must be determined by applying the law as if [the PIC Act] had not been enacted”. The “Publication note” at the commencement of the Medical Assessment Guidelines stated:

“For all other matters from 1 March 2021, practice and procedure is governed by the Personal Injury Commission Rules and these Guidelines do not apply.”

4. The 1999 Act, s 3AA.

11. As the PIC Act provides for the processes of, amongst other things, medical assessment, it is necessary to identify whether that Act, and the PIC Rules, governed the Review Panel proceedings in the present case. The insurer submitted that they did. The relevant provisions are to be found in Div 4A of Sch 1 to the PIC Act, which provides for savings and transitional provisions. The heading to Div 4A is “Completion of existing proceedings”. It has separate defined categories of which the following definitions are relevant:

14A    Interpretation

(1)   In this Division—

commence, in relation to proceedings, includes lodge or file an application or a document seeking the exercise of a function.

…

part heard proceedings means pending proceedings that had begun to be heard or considered, but were not determined, before the establishment day.

pending proceedings means proceedings that—

(a) were commenced before the establishment day, and

(b) had not been finally determined before that day.

Note—

See subclause (2) for the meaning of finally determined proceedings.

…

proceedings includes an application for, or an appeal against, the exercise of a function.

unexercised right means a right, including a right exercisable only with leave or other permission, that—

(a) was available to be exercised immediately before the establishment day, and

(b) had not yet been exercised before that day.

unheard proceedings means pending proceedings that had not been heard or considered before the establishment day.

(2)   For the purposes of this Division, proceedings are not finally determined if—

(a) any period for bringing an appeal as of right in respect of the proceedings has not expired, ignoring any period that may be available by way of extension of time to appeal, or

(b) any appeal in respect of the proceedings is pending, whether or not it is an appeal brought as of right.

12. It will be recalled that the Medical Assessment Guidelines were said to be necessary in order to determine “pending procedures” and “unexercised rights”. Accordingly, the question was whether the review applications made by the insurer fell within those categories.

13. The insurer relied on cl 14F of Sch 1 to the PIC Act which relevantly provides:

Subdivision 4 Review of completed pre-establishment proceedings

14F   New law to apply to certain matters

(1)    This clause applies to the following proceedings (completed pre-establishment proceedings)—

(a) pending proceedings completed under Subdivision 2,

(b) proceedings commenced and completed under Subdivision 3.

(2)    The new review provisions, if any, apply in relation to a decision of a new decision-maker in completed pre-establishment proceedings instead of the old legislation.

(3)    The new review provisions are the provisions of the new legislation applicable to appeals against or reviews of decisions of new decision-makers that correspond, or substantially correspond, to provisions of the old legislation for decisions of the same kind.

…

(5) In this clause—

new legislation means this Act and statutory rules under this Act, the motor accidents legislation and the workers compensation legislation, as in force on or after the establishment day.

old legislation means the motor accidents legislation and workers compensation legislation, as in force immediately before the establishment day.

14. The phrase “pending proceedings completed under subdivision 2” includes, pursuant to cl 14B(2):

(2)   Unheard proceedings are taken on and from the establishment day—

(a)   to have been commenced for determination by the new decision-maker, and

(b)   may be determined by the new decision-maker instead of the original decision-maker.

15. The “new decision-maker” was equipped with the “functions” that the original decision-maker had immediately before the establishment day (cl 14B(4)) and was required to “apply to the completion of proceedings”, the provisions of any Act which would otherwise have applied, which may be understood to include the 1999 Act: cl 14B(4)(c).

16. The insurer submitted that the plaintiff’s referral for a determination of her degree of permanent impairment, pursuant to s 60(1) of the 1999 Act, fell within the descriptions of a pending proceeding, and an unheard proceeding. That was because as at the establishment day under the PIC Act, ^[5] the matter had been referred, but had not been heard or considered. Accordingly, her proceeding was an unheard proceeding which was completed pursuant to cl 14B and therefore fell within the definition of “completed pre-establishment proceedings” in cl 14F. That clause provided that “new review provisions were to apply”.

    5. The establishment day is identified as 1 March 2021: PIC Act, s 6(3).

17. The new review provisions relevantly included r 129 of the PIC Rules:

129    Applications for appeals and reviews

(1)    This rule applies to the following applications—

…

(b) an application to refer a medical assessment to a review panel under section 63 of the MAC Act,

….

18. Thus, while s 63 of the 1999 Act conferred a right of review on the insurer, the provisions of the new PIC Rules governed the review.

19. This conclusion is consistent with the apparent intent of the legislation that the substantive requirements be governed by the relevant motor accident legislation, while the procedural steps are governed by the PIC Act, including Sch 1 to that Act.

20. The plaintiff resisted this construction of the legislation on the basis that the plaintiff’s unheard pending proceeding remained such until it had been finally determined, a result which was not achieved until any period for bringing an appeal as of right in respect of the proceedings had expired, in accordance with cl 14A(2) of Sch 1.

21. There are several reasons for not accepting that approach. The first is that cl 14F applies to pending proceedings which are “completed” under subdiv (2). Pursuant to cl 14B(2) in subdiv (2), unheard proceedings are taken to have been commenced for determination by “the new decision-maker” and may be “determined by the new decision-maker instead of the original decision-maker”. Despite the variation in terminology, from “determined” (in cl 14B(2)(b)), to “the completion of proceedings under this clause” (in cl 14B(4)), and then to “proceedings completed under Subdivision (2)” (in cl 14F), it is clear that a proceeding determined under cl 14B(2) is a proceeding which has been completed under cl 14F(1). Whether or not it has been “finally determined”, cl 14F is engaged. If, arguably, the proceeding has not been “finally determined”, and thus remains a “pending proceeding” within the definition in cl 14A, that is beside the point, because neither cl 14B nor cl 14F refers to a proceeding being “finally determined”.

22. The second point is that the definition of “finally determined” is, in any event, not engaged, for several reasons. One is that there is a distinction between a “right of appeal” and a power to seek review of a determination. There is no “right to” a review: pursuant to s 63 of the 1999 Act, the right is to apply to the President of the Commission, who may refer the medical assessment to a review panel for review. Even if the concepts of an “appeal” and a “review” were not distinguishable, there was no procedure for review “as of right”.

23. Furthermore, even if a right of appeal vested in the party bringing the “pending proceeding” were engaged, it would not follow that a right of appeal conferred on the unsuccessful party which had not commenced a pending proceeding before the establishment day, and which did not arise until the application had been resolved against it, would engage cl 14A(2) of Sch 1.

24. Finally, to speak of a right of appeal which “has not expired” assumes an existing right as at the establishment day. Where there had been no determination of an application as at that day, there could not have been an existing right of appeal.

25. For these reasons, the insurer’s submissions should be accepted: the Medical Assessment Guidelines promulgated in 2018 did not apply to the proceedings before the Review Panel.

26. This conclusion only affects ground (2)(b) (as identified at [5] above). Against the possibility that the PIC Rules applied, the plaintiff contended that the Review Panel was required, pursuant to r 130, to issue a certificate “as soon as practicable” after conducting a review. At the same time, she conceded that r 130 only applied to a review panel established under s 7.26 of the 2017 Act. There was no suggestion by the insurer that the 2017 Act had any application, and accordingly r 130 had no operation. In short, if the Medical Assessment Guidelines were not engaged, and putting to one side the Permanent Impairment Guidelines, there was no statutory (or otherwise prescribed) temporal constraint on the conduct of the Review Panel.

Delay

27. Before addressing the plaintiff’s other grounds of review, it is convenient to explain the nature of the delay experienced in this case. The extent of the delay may be identified at three steps. The first step was the acceptance by a delegate of the President of the Commission of the insurer’s review applications, a step which occurred on 30 and 31 March 2022 respectively. On 11 April 2022, a review panel was established comprising a member of the Commission and two appropriate medical assessors, having regard to the nature of the claimed impairments.

28. The second step was the undertaking of separate re-examinations of the plaintiff with respect to each impairment. On 17 August 2022, medical assessor Ian Cameron assessed her physical (musculoskeletal) injuries; on 4 November 2022, medical assessor Margaret Gibson assessed the plaintiff’s sleep disorder. There were periods of four months and seven months between the constitution of the Review Panel and the medical re-examinations. The plaintiff made no complaint as to those periods.

29. The third step involved the issue of certificates by the Review Panel. Those certificates were not issued until 9 and 12 January 2024 respectively. It is the delay between the assessments made by the medical assessors in August and November 2022 and the issue of the certificates which gave rise to the principal challenge.

30. There can be no doubt that the delay was unacceptable; it was also unexplained. Inquiries were sent to the Commission by the plaintiff’s solicitors in July, August, October and November 2023; the insurer’s solicitor wrote to the Commission in July 2023, and the plaintiff herself sent a personal plea on 1 December 2023. Although both the President of the Commission and the members of the Review Panel were joined as defendants in this Court, they filed submitting appearances and proffered no evidence as to the reasons for the delay. (The joinder of the President was presumably because the plaintiff sought orders setting aside the two certificates and remittal to the Commission for further consideration of the insurer’s applications for review, by a different review panel, the constitution of which would be the responsibility of the President: the 1999 Act, s 63(3).) As must have been apparent to the parties when entering appearances, the necessary result of the plaintiff’s success will be to extend the delay in resolving this issue.

31. The plaintiff invited the Court to infer that there was no acceptable justification, an inference which should be accepted. The question, however, is whether the delay invalidated the issue of the certificates.

Grounds 1(a), 2(a): failure to comply with Permanent Impairment Guidelines

32. Grounds 1(a) and 2(a) contended that the Review Panel failed to comply with cl 1.21 of the Permanent Impairment Guidelines, which reads:

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

33. The plaintiff submitted that the impairment had been assessed (in each case) in late 2022, whereas the certificate of determination which recorded the “Review Panel assessment of permanent impairment” was only issued in January 2024. The 14- (or 17-) month delay between the medical assessment and the issuing of the certificates was said to constitute a breach of cl 1.21. Further, the breach was said to constitute an error of law on the face of the record and also a constructive failure to perform the duty imposed on the Review Panel under the 1999 Act.

34. The language of “evaluation”, “assessment”, and “determination” is imprecise. The general factors identified in cl 1 of the Permanent Impairment Guidelines, immediately preceding the heading “Permanent impairment”, are as follows:

Evaluation of impairment

1.17   The medical assessor must evaluate the available evidence and be satisfied that any impairment:

1.17.1   is an impairment arising from an injury caused by the accident, and

1.17.2   is an impairment as defined in clause 1.9 above.

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

1.18.1   a review and evaluation of all the available evidence including:

●   medical evidence (doctors’, hospitals’ and other health practitioners’ notes, records and reports)

●   medico-legal reports

●   diagnostic findings

●   other relevant evidence

1.18.2   an interview and a clinical examination, wherever possible, to obtain the information specified in these Guidelines and the AMA4 Guides ^[6] necessary to determine the percentage impairment, and

1.18.3   the preparation of a certificate using the methods specified in these Guidelines that determines the percentage of permanent impairment, including the calculations and reasoning on which the determination is based. The applicable parts of these Guidelines and the AMA4 Guides should be referenced.

6. The term “AMA4 Guides” refers to the American Medical Association, Guides to the Evaluation of Permanent Impairment (4th ed, 1993).

35. Clause 1.21 is one of the four clauses appearing under the heading “Permanent impairment”. The first two (cll 1.19 and 1.20) address the need to consider that the injuries have stabilised, in order for the impairment to be permanent; if stability has not been achieved, the impairment should not be assessed: cl 1.19. Clause 1.21, read in that context, states that some future assessment based on an expectation of stability, should not be made. Further, cl 1.22 excludes the possibility of a predicted deterioration. So understood, the thrust of cl 1.21 is not directed to any possible lapse of time between the date of a medical examination and the date of issue of a certificate, but to the need not to predict the future.

36. Further, the reference to “evaluation” in cl 1.21 may be traced to cl 1.17, which identifies the process undertaken by the medical assessor, stated in cl 1.18 to be a three-stage process, commencing with a “review and evaluation of all the available evidence”. The term “evaluation” is not used to refer to the second stage (the interview and clinical examination), nor to the third stage (the issue of a certificate).

37. Read in context, the use of the term “evaluation” in cl 1.21 is significant: consistently with cl 1.18, it refers to the process of assessing historical records (step 1). It makes sense in that context to remind a review panel that it is not making an assessment as at some earlier point in time, when the documents were prepared, but as to the degree of impairment at the time of its assessment. The process of evaluation of the historical records is to be undertaken, cl 1.21 states, for the purpose of assessing current impairment. Neither the past, nor the future, is determinative. But cl 1.21 is not directed to the different times at which the three steps in the assessment are carried out.

38. If, over the period of more than a year while the decision was pending, the plaintiff’s condition had deteriorated, it might have been necessary for that to be addressed by the Review Panel, if drawn to their attention. ^[7] Although the plaintiff wrote to the President on December 2023, in understandably impassioned terms, she did not suggest that her condition resulting from the injuries caused by the accident had materially deteriorated.

    7. Cf s 62 of the 1999 Act.

39. The Review Panel clearly directed its assessment to the plaintiff’s current degree of impairment. There was no error of law. Grounds 1(a) and 2 (a) should be rejected.

Ground 2(b): failure to comply with Medical Assessment Guidelines

40. The second alleged error with respect to the physical injuries determination was the failure to comply with a specific time limit set out in the Medical Assessment Guidelines with which, it was submitted, “the panel is expected to comply”. ^[8] This ground should be rejected on the basis that the Medical Assessment Guidelines were not engaged, as explained in discussing the transitional provisions. However, against the possibility that that conclusion is wrong, it is convenient to assess the ground on its merits.

    8. Plaintiff’s written submissions, 9 August 2024, par 50.

41. The Medical Assessment Guidelines, with which (it is assumed) the Review Panel was required to comply pursuant to s 133(2) of the 1999 Act, contained a number of temporal requirements. The plaintiff submitted the panel’s failure to comply constituted an error of law.

42. Under the heading “Review Panel assessment”, the following provisions appear:

16.19   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:

16.19.1 consider afresh all aspects of the assessment under review;

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

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

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

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

….

…

16.22   Within 20 days of the final meeting of the panel, and in any case within 60 days of the initial meeting, the panel shall issue its determination and any certificates, accompanied by written reasons for the determination, in the form approved by the Authority, to the secretary who shall within 5 days of the issuing of any certificates, provide them to the parties and the original Assessor.

…

16.24   The Review Panel is to act as expeditiously as practicable in the circumstances.

43. On 14 April 2022, Mr Thompson, on behalf of the Review Panel, sent a set of directions issued by the panel. The plaintiff correctly inferred that there must have been an “initial meeting” on or shortly before that date. In any event, she accepted that the meeting was held within 30 days of the date the Review Panel was convened, in compliance with cl 6.19. The significance of that date was, however, that cl 16.22 provided that a review panel “shall issue its determination” within 60 days of the “initial meeting”. Thus, cll 16.19 and 16.22 in combination required that the certificate of determination be issued within 90 days of the convening of the Panel. Either unnecessarily, or perhaps inconsistently, cl 16.24 required the Panel to act “as expeditiously as practicable in the circumstances”.

44. It should be accepted that the Review Panel did not comply with those temporal obligations: the question is whether its failure to do so constituted an “error of law” appearing on the face of the record, namely by reference to the convening of the panel and the date on the certificate of determination. In the alternative, it was said to be a constructive failure to perform the panel’s statutory function.

45. If there is a time fixed by the law within which some act is to be taken, failure to do so is not readily characterised as an “error of law” on the face of the record (if there be one); rather it is a legally ineffective act. If a person commences legal proceedings out of time, the proceedings may be struck out as incompetent. In the case of a statutory authority, the act may properly be described as a failure to exercise its statutory function. However, in circumstances where there is no provision for an extension of time, the effect of the plaintiff’s contention is that the Review Panel effectively lost its function 90 days after it was convened, when no certificate of determination had been issued, namely on 10 July 2022. Indeed, it may have constructively abandoned its function when it arranged to examine the plaintiff on 17 August 2022 and on 4 November 2022, well after the 90-day period would have expired.

46. Such an understanding of the Medical Assessment Guidelines is so unlikely that it is necessary either to reconsider that understanding, or to conclude that the Guidelines so understood are inconsistent with the statute and therefore invalid. It is sufficient to conclude that the plaintiff’s proposed reading of the Medical Assessment Guidelines should not be accepted. First, the Guidelines generally are expressed in mandatory form, namely that the panel or the proper officer or any other party involved “is to” do certain things. It does not follow that compliance with such a requirement is a jurisdictional fact, so that failure to comply renders a step, or the ultimate determination, invalid.

47. In Parisienne Basket Shoes Pty Ltd v Whyte ^[9] the High Court was dealing with a question as to whether a time limitation on bringing proceedings imposed a restraint on the jurisdiction of the court to hear the matter. Dixon J stated (at 391):

“It cannot be denied that, if the legislature see fit to do it, any event or fact or circumstance whatever may be made a condition upon the occurrence or existence of which the jurisdiction of a court shall depend. But, if the legislature does make the jurisdiction of a court contingent upon the actual existence of a state of facts, as distinguished from the court’s opinion or determination that the facts do exist, then the validity of the proceedings and orders must always remain an outstanding question until some other court or tribunal, possessing power to determine that question, decides that the requisite state of facts in truth existed and the proceedings of the court were valid. Conceding the abstract possibility of the legislature adopting such a course, nevertheless it produces so inconvenient a result that no enactment dealing with proceedings in any of the ordinary courts of justice should receive such an interpretation unless the intention is clearly expressed.”

9. (1938) 59 CLR 369; [1938] HCA 7.

48. This case does not concern the jurisdiction of a court, but it does concern what is said to be a jurisdictional limit on a medical review panel. It is implausible that a set of guidelines, made by a statutory authority, and not even a form of delegated legislation,^[10] should have intended such an implausible result. In those circumstances, a statement that something “is to” happen is, in the context, a “guideline”, failure of compliance with which will not render any later step invalid. The effect may be to create an expectation; the times specified are best identified as aspirational.

    10. Ali v AAI Ltd [2016] NSWCA 110; 75 MVR 502 at [75]-[99] (Leeming JA); the contrary statement in GIO General Ltd v Smith [2011] NSWSC 802 at [19] is not correct.

49. It is not immaterial that when a re-examination is required certain other parts of the guidelines are said to apply: cl 16.20. One of those involves a power of the medical assessor to dismiss an application where the claimant has not made himself or herself available for examination within 12 months. Such a power would be either otiose or meaningless where a review panel loses its functions after 90 days.

50. It is not necessary to examine the precise limits of the statutory powers under which the Medical Assessment Guidelines were made. However, it may be recalled that the Authority was given power under s 44(1) of the 1999 Act to issue medical guidelines “with respect to” the assessment of the degree of permanent impairment of an injured person (par (c)), and the procedures for the referral of disputes for review of assessments, and the procedures for such reviews (par (d)). The latter, par (d), conferred the power to make the Medical Assessment Guidelines: it is at least arguable that the power is meant to be facilitative and not to impose temporal limitations which are not in the statute. Even the use of the phrase “guidelines” is significant in that respect.

51. Suffice it to say that there was neither an error of law on the face of the record, nor a constructive failure to exercise jurisdiction, by the Review Panel in failing to comply with the temporal requirements of the Medical Assessment Guidelines identified in the ground. Ground 2(b) must be rejected.

Grounds 1(b) and 2(c) – procedural unfairness

52. The claim that the delay caused procedural unfairness to the plaintiff relied, not upon any breach of the guidelines or other express provisions of statute or regulation, but rather upon the general law principle that all executive power must be exercised in a procedurally fair manner. That usually means that a claimant must be given a reasonable opportunity to present his or her claim and to respond to any adverse material which the decision-maker has available for consideration. There are circumstances in which delay can impinge on that form of procedural fairness. However, that is not this case: there is no complaint that the steps taken to allow the plaintiff to make submissions, to provide material and for an interview and re-examination by a panel member, were inadequate.

53. There is, however, another aspect of procedural unfairness which can arise from excessive delay: that is the loss of an opportunity to have one’s case fairly considered by the tribunal or decision-maker. As explained by Gleeson CJ in NAIS v Minister for Immigration & Multicultural & Indigenous Affairs:^[11]

“A procedure that depends significantly upon the Tribunal’s assessment of individuals may become an unfair procedure if, by reason of some default on the part of the Tribunal, there is a real and substantial risk that the Tribunal’s capacity to make such an assessment is impaired.”

11. (2005) 228 CLR 470; [2005] HCA 77 at [9].

54. In NAIS, the delay between the time at which the principal applicants (a husband and wife of different religious persuasions) were interviewed by the Refugee Review Tribunal, and the date of the determination of their claims for protection visas on the basis of a well-founded fear of persecution in their home country, Bangladesh, was five years. As Gleeson CJ further noted:

“10   … What they have to demonstrate is that the procedure was flawed; and flawed in a manner that was likely to affect the Tribunal’s capacity to make a proper assessment of their sincerity and reliability …. If the Tribunal, by its unreasonable delay, created a real and substantial risk that its own capacity for competent evaluation was diminished, it is not fair that the appellants should bear that risk. The delay on the part of the Tribunal in the present case was so extreme that, in the absence of any countervailing considerations advanced in the reasons of the Tribunal, it should be inferred that there was a real and substantial risk that the Tribunal’s capacity to assess the appellants was impaired. That being so, the appellants did not have a fair hearing of their claims by the Tribunal.”

55. For reasons which will be explained, the decision of the Review Panel with respect to the sleep disorder did not depend upon the interview and medical examination of the plaintiff. On the other hand, the review of her physical injuries did rely in a material respect on the interview and medical assessment conducted by assessor Cameron. Consistently with the approach taken in NAIS, it is appropriate to have regard to the reasons given by the Review Panel to determine whether the delay did potentially impair the Panel’s capacity to make the necessary assessment.

56. Although the reasons are no longer attacked as legally insufficient, it is necessary to have regard to their purpose and proper scope in order to address the question of what they reveal about the Review Panel’s functioning. The nature of the reasons required of a medical assessment panel was explained by the High Court in Wingfoot Australia Partners Pty Ltd v Kocak ^[12] in the following passage:

“47   The function of a Medical Panel is to form and to give its own opinion on the medical question referred for its opinion. In performing that function, the Medical Panel is doubtless obliged to observe procedural fairness, so as to give an opportunity for parties to the underlying question or matter who will be affected by the opinion to supply the Medical Panel with material which may be relevant to the formation of the opinion and to make submissions to the Medical Panel on the basis of that material. The material supplied may include the opinions of other medical practitioners, and submissions to the Medical Panel may seek to persuade the Medical Panel to adopt reasoning or conclusions expressed in those opinions. The Medical Panel may choose in a particular case to place weight on a medical opinion supplied to it in forming and giving its own opinion. It goes too far, however, to conceive of the function of the Panel as being either to decide a dispute or to make up its mind by reference to competing contentions or competing medical opinions. The function of a Medical Panel is neither arbitral nor adjudicative: it is neither to choose between competing arguments, nor to opine on the correctness of other opinions on that medical question. The function is in every case to form and to give its own opinion on the medical question referred to it by applying its own medical experience and its own medical expertise.” [Footnote omitted.]

12. (2013) 252 CLR 480; [2013] HCA 43 (French CJ, Crennan, Bell, Gageler and Keane JJ).

57. The High Court identified the purpose of the (Victorian) statute in requiring that the Panel give reasons to be “that persons affected by the opinion automatically be provided with a written statement of reasons adequate to enable a court to see whether the opinion does or does not involve any error of law”. ^[13] The judgment continued:

“54   … There is an obvious benefit in requiring a written statement of reasons for an opinion always to meet that standard. The benefit is that it enables a person whose legal rights are affected by the opinion to obtain from the Supreme Court an order in the nature of certiorari removing the legal effect of the opinion if the Medical Panel in fact made an error of law in forming the opinion: an error of law in forming the opinion, if made, will appear on the face of the written statement. To require less would be to allow an error of law affecting legal rights to remain unchecked. To require more would be to place a practical burden of cost and time on decision-making by an expert body for no additional legal benefit and no identified systemic gain.”

13. Wingfoot at [54].

58. These principles, including the purpose of the requirement for written reasons identified in s 61(9) of the 1999 Act, apply equally to that statutory scheme. ^[14]

    14. See AAI Limited trading as GIO v Amos [2024] NSWCA 65 at [88]-[89] referring to Insurance Australia Group Ltd t/as NRMA Insurance v Keen [2021] NSWCA 287 at [38]-[40] (Leeming JA).

59. The plaintiff’s abandoned written submissions noted that there was “no other report provided at or around the time of the re-examination”, with the result that the plaintiff was left guessing as to how the Panel made its findings. It asked, rhetorically, were the findings made “from notes taken at the re-examination” and if so, where are those notes? However, the answer to the rhetorical questions was straight-forward. The reasons of the Review Panel summarised the history of medical examination and the parties’ submissions from pars 1-119. Between that material and the next heading, “Findings” (at par 120) there are four full pages headed “Re-examination” which referred to the re-examination by medical assessor Cameron on 17 August 2022 and set out verbatim (as indicated by quotation marks) that it was his report.

60. The report of the re-examination was detailed, containing history provided by the plaintiff, factual findings made by the assessor, and an evaluation of the physical impairments by reference to seven elements, identifying the degree of impairment in each case and providing a conclusion that the impairments in combination give a total of “7% WPI”.

61. The statement of reasons then noted that the review was “a new assessment of all matters with which the medical assessment is concerned” (par 120), that the Panel “is not required to choose between competing medical opinions and is required to form its own opinion” (par 121) and that the Panel “adopts the re-examination report of medical assessor Cameron in its reasons and adds the following further reasons” (par 122). Under the heading “Causation”, the Panel set out further reasons for rejecting claims of a bunion on the left great toe and a right knee injury as not resulting from the accident. It then set out its determination as to the degree of permanent impairment of each of the injuries found to be caused by the accident, findings which effectively repeated the findings of medical assessor Cameron.

62. The reasons were comprehensive, clear and logical. There is no suggestion of omission. While it is not known when the bulk of the statement of reasons was prepared, any delay in the preparation of the background, the assessment of medical histories and the summary of the parties’ submissions could readily have been undertaken belatedly without any risk to the soundness of the consideration. It is the kind of assessment which may readily be repeated by an appeal court based on the same documentary record as that considered by a trial judge, a year, or two years or more, after a trial has been concluded.

63. If there were some indication from the reasons that the re-examination report of medical assessor Cameron had not been undertaken contemporaneously with the examination, the Court would infer that excessive delay had likely affected the assessor’s capacity to remember and comment upon the examination. However, although the precise form in which the report was made is not known, it is evident that it was made in a detailed form contemporaneously with the re-examination. This was not a case in which the credibility or reliability of the plaintiff was in issue. There is no suggestion that her own history of events was not accepted, nor that it was not faithfully recorded. The detail of measurements made by the assessor was recorded, for example, in the following terms:

“Range of motion at both knees was 0 to 130 degrees. There was no crepitus, or instability, at the right or left knee.

At the left ankle, range of movement was plantarflexion 50 degrees, dorsiflexion 10 degrees, eversion 20 degrees, and inversion 10 degrees.

At the toes in the left foot extension was to 10 degrees.

At the interphalangeal joint movement at the left great toe flexion was to neutral only.

There was a sensory deficit over the dorsum of the foot involving the third and fourth toe and a patch on the left forefoot. There was sensory deficit on the plantar aspect of the third and fourth toes.”

64. Such detail was to be found throughout the four pages of the re-examination report. Any suggestion that the report was not prepared contemporaneously with the re-examination would be implausible. Indeed, no such submission was expressed. Accordingly, although the delay was excessive and unexplained, it has not been shown there is a real and substantial risk that the Review Panel’s capacity to make a proper assessment of the plaintiff’s degree of permanent impairment was reduced. The challenges based on procedural unfairness must be rejected.

Ground 1(c): sleep disorder determination

65. Ground 1(c) concerned the manner in which the Permanent Impairment Guidelines picked up the provisions of the AMA4 Guides.

66. The original medical assessment prepared by medical assessor Grainge identified the injury referred for assessment as “respiratory/sleep disorder”. He assessed “chronic insomnia and sleep fragmentation” as giving rise to a permanent impairment of 8%. However, under the heading “Clinical examination”, assessor Grainge noted that the plaintiff’s “respiratory examination was unremarkable” and her “cardiovascular examination was also unremarkable”. He also noted (correctly) that the AMA4 Guides dealt with impairment criteria for sleep and arousal disorders in Table 6 of Chapter 4, “The Nervous System”. The accompanying text identified categories of impairment which may arise from sleep disorders as relating to various body systems and stated that “sleep disorders relating to these systems should be evaluated according to the Guides chapters that deal with the respective systems”. The text also noted that “[t]he subject of sleep disorders is considered also in the chapter on the respiratory system”. These statements were noted by assessor Grainge; he also referred to the reference to sleep disorders in Chapter 5, dealing with the respiratory system. Despite having found no respiratory problem, in assessing permanent impairment at 8%, he identified the body part or system as “respiratory – sleep fragmentation”, but without reference to any part of the AMA4 Guides.

67. The Review Panel referred to the determination of assessor Grainge in the following part of its “Findings”:

“113   Medical Assessor Grainge commented in his certificate that ‘It is well recognised that physical injury can lead to sleep disorder especially in the circumstance where physical injury leads to inability to exercise and weight gain, leading to obstructive sleep apnoea.’ He diagnosed that Ms Bucca suffered from ‘Sleep fragmentation leading to daytime hypersomnolence’ and concluded that ‘This sleep fragmentation is not due to obstructive sleep apnoea but the frequent arousals result in a similar outcome, ie. that of daytime hypersomnolence.’

114 Medical Assessor Grainge bases his assessment on AMA 4 section 5.3. However, this section deals with a number of respiratory conditions including obstructive sleep apnoea, obesity hypoventilation syndrome, central sleep apnoea and other conditions (Table 10), none of which he has diagnosed, nor which have been established on history or clinical examination.” [Footnote omitted.]

68. The Review Panel then expressed its own opinion in the following terms:

“117   The Panel is of the opinion that Ms Bucca suffers chronic pain as a consequence of her physical injuries, and in particular to her left foot. This pain keeps her awake and in the Panel’s experience, this is a common issue with patients suffering from all forms of chronic pain, the extent of which being dependant on the type and seriousness of the condition producing the pain.

118   Therefore, the sleep disorder is a consequence of pain, rather than a separate sleep condition or a respiratory condition or a neurological condition, none of which have been diagnosed, nor were they evident on clinical history or examination at the time of Panel’s re- examination, or in fact at the time she was examined by Medical Assessor Grainge.

119   Pain is addressed at Clause 1.38 of the Guidelines which states that:

‘Some tables require the pain associated with a particular neurological impairment to be assessed. Because of the difficulties of objective measurement, medical assessors must not make separate allowance for permanent impairment due to pain, and Chapter 15 of the AMA4 Guides must not be used. However, each chapter of the AMA4 Guides includes an allowance for associated pain in the impairment percentages.’

120   The Panel is of the opinion, that because the pain condition is not assessable separately from the physical conditions, the sleep dysfunction which arises from the pain is also not separately assessable for the purposes of whole person impairment.

121   Furthermore, the Guidelines provide no scope for assessment of sleep disorders outside of those arising from a neurological disorder.”

69. The plaintiff challenged this reasoning by taking issue with the panel’s interpretation of cl 1.38 of the Permanent Impairment Guidelines.

70. The plaintiff submitted that cl 1.38 merely stated that pain itself cannot form the basis for a separate allowance for permanent impairment; it did not state that there cannot be an assessment of permanent impairment where the pain causes impairment of a body part or system. So far as it goes, this submission may be accepted: the separate assessment of pain pursuant to Chapter 15 of the AMA4 Guides is precluded. What is not precluded is the ability to assess pain through assessment of impairment of another body part or system. However, the Review Panel reasoned that the body part or system which gives rise to the pain is the body part or system which is to be assessed. It reasoned that it is only by having regard to a body part or system affected by injuries resulting from an accident in a way provided for in the AMA4 Guides that a level of permanent impairment can be determined.

71. Indeed, so much was implicit in the referral of the “medical dispute” for assessment which identified the body part or system as “respiratory”. The subject of assessment was therefore so limited. ^[15] Once the Panel (and indeed the original assessor) was satisfied that there was no degree of impairment of the respiratory system, the plaintiff was not entitled to any degree of permanent impairment related to that system. As Chapter 1 of the AMA4 Guides (though not applicable for assessing permanent impairment) noted, “[t]he medical, social and economic consequences of pain are enormous”. ^[16] That statement recognises medical effects on a variety of body parts and systems. However, sleep is not identified as a body part or system to be assessed as contributing to the level of permanent impairment. Like pain itself, such indirect effects must be incorporated into the assessment of the body part or system which is the source of the pain.

    15. Skates v Hills Industries Ltd [2021] NSWCA 142 at [49] (Leeming JA).

    16. AMA4 Guides, p 303.

72. That reasoning does not identify a legal principle. The proper application of the Permanent Impairment Guidelines and the AMA4 Guides is a matter for the medical assessors. If they adopt an approach which is manifestly unreasonable, there may be a basis for judicial review. No such ground was relied upon, nor could it have been in the present circumstances.

69. If the proper construction of the Permanent Impairment Guidelines, with the AMA4 Guides, is a question of law to be resolved by this Court, in my view the approach adopted by the Review Panel has not been shown to be erroneous. Indeed, if the Court’s view were relevant, I am affirmatively satisfied that the Panel’s reasoning was correct.

70. However, whether this is a matter for the Court – and I do not think it is – involves a question of statutory interpretation. There are a number of factors material to that exercise. First, the AMA4 Guides are not a legislative document: they are not found in a statute or in regulations made under a statute. As Leeming JA explained in Ali v AAI Ltd,^[17] even the Medical Assessment Guidelines are not a statutory instrument, though for certain purposes of the 1999 Act they are treated as such. (That treatment would not be necessary were the Guidelines actually a statutory instrument.) The AMA4 Guides are one step further removed, as they are adopted (and in part adapted) by the Medical Assessment Guidelines.

    17. See fn 9 above.

71. Secondly, the AMA4 Guides do not define the rights of parties, as do contracts, wills and other legal documents. Nor do they confer powers. Rather, they are, in the terms of their self-description, “guides” or “guidelines”. They are a form of “soft law”. ^[18]

    18. G Weeks, Soft Law and Public Authorities: Remedies and Reform (Hart Publishing, 2016), pp 144-145 suggesting the possibility of declaratory relief; cf Victoria v Construction, Forestry, Mining and Energy Union (2013) 218 FCR 172; [2013] FCAFC 160 at [21] (Kenny J), [153] (Buchanan and Griffiths JJ).

72. Thirdly, they are prepared by, and addressed to, those with medical expertise. As Kagan J said in a persuasive dissent in Loper Bright Enterprises v Raimondo, ^[19] discussing whether a population of an endangered species is a “distinct” population:

“Deciding when one squirrel population is ‘distinct’ from another (and thus warrants protection) requires knowing about specifics more than it does consulting a dictionary. How much variation of what kind – geographic, genetic, morphological, or behavioural – should be required? A court could, if forced to, muddle through that issue and announce a result. But wouldn’t the Fish and Wildlife Service, with all its specialized expertise, do a better job of the task – of saying what, in the context of species protection, the open-ended term ‘distinct’ means?”^[20]

19. 603 US _ (2024) (28 June 2024).

20. Loper Bright, dissenting opinion, p 9; see also p 6, referring to Northwest Ecosystem Alliance v United States, Fish and Wildlife Service, 475 F 3d 1136 (CA9 2007).

77. This passage, echoing the reasoning of Dixon J in Parisienne Basket Shoes, supports the view that judicial restraint in questions of statutory interpretation should temper judicial hubris: it is quite unlikely that the legislature would, absent clear words, commit such a question to determination by a court, rather than by the specialist expert body it has established to administer the legislation.

78. What Parliament did in the 1999 Act was to confer power on a statutory authority to promulgate guidelines for assessment of permanent impairment. The constraint it imposed on the Authority in the exercise of the power was that the guidelines “must be developed in consultation with relevant medical colleges…”: 1999 Act, s 44(6). Further, it expressly permitted the adoption of provisions of other publications, no doubt having the AMA4 Guides in mind: s 44(3). The objects of the 1999 Act are stated in functional terms (s 5) but the relevant purpose, apparent from the structure of the Act, is to remove medical disputes arising from injuries caused by motor vehicle accidents from the courts. To imply the conferral on the courts of the function of determining the meaning of guidelines devised with medical input for the determination of those disputes is as implausible as requiring judicial determination of the correctness of individual assessments. Determinations are subject to review for legal error, but not subject to appeal. A manifestly unreasonable reading of the AMA4 Guides, or a refusal to apply them, would be reviewable. Short of that, their construction and application are matters for medical assessors, subject to the guidance provided by the Authority.

79. Ground 1(c) should be rejected. That means that the other grounds relating to the sleep disorder certificate are irrelevant: the delay could not have affected the application of cl 1.38, which provided an independent and sufficient basis for revoking the sleep disorder certificate.

Costs

80. In the course of the hearing, the Court raised an issue as to whether the insurer sought an order for costs against the Commission. ^[21] Such an order would turn on the responsibility of the Commission for the delay of the Review Panel in issuing its certificates which delay formed the basis of the application for judicial review by the plaintiff. If the plaintiff were successful, the insurer would be liable not only for its own costs, but also for the costs of the plaintiff. If the insurer were successful, it would be entitled to an order for costs against the plaintiff, but with a real possibility that, as a practical matter, costs would not be recoverable. If the insurer were to seek costs against the Commission, the Commission would need to be given an opportunity to be heard, as the President’s submitting appearance did not extend to an adverse costs order. If the insurer seeks to make such an application, it should do so by a motion within 14 days of delivery of this judgment.

    21. Any claim might need to be made against the State of New South Wales: PIC Act, s 64(4); Crown Proceedings Act 1988 (NSW), s 5(1).

81. In the meantime, the plaintiff filed a submission following the hearing (and indeed following the listing of the matter for judgment) applying for a certificate under the Suitors’ Fund Act 1951 (NSW). Such a certificate is available, on application, for a respondent to “an appeal against the decision of a court”: s 6(1). There are three difficulties facing that application.

82. First, the proceeding is not by way of an appeal, but by way of the distinctly different process of judicial review pursuant to s 69 of the Supreme Court Act. It is true that the term “appeal” is defined to include “any motion for a new trial and any proceeding in the nature of an appeal”: s 2(1). There are authorities which have held that an application for judicial review constitutes a proceeding “in the nature of an appeal”, because it seeks to set aside the legal consequences of a judicial or administrative decision on the basis of a form of error of law. It thus bears close comparison with an appeal based on an error of law. There are, however, authorities to the contrary. ^[22]

    22. See eg Allianz Australia Insurance Ltd v Habib (No 2) [2015] NSWSC 1870 at [21] (Beech-Jones J), applying Henderson v QBE Insurance (Australia) Ltd [2013] NSWCA 480.

83. The second difficulty is that a medical review panel is not, in ordinary parlance a “court”. The term “court” is also defined in the Suitors’ Fund Act, to include “such tribunals or other bodies as are prescribed”: s 2(1). No tribunals or other bodies have been prescribed, casting doubt on whether any body other than a court qualifies. Although there are decisions of single judges giving certificates under the Suitors’ Fund Act in respect of judicial review proceedings from decisions under the 1999 Act, only two involve medical review panels and neither of them provided reasons referring to the statutory power in granting the certificate. ^[23] There are reasons for thinking that the function of medical assessors is closer to that of a body giving an expert opinion than that of a court or tribunal.

    23. GIO General Ltd v Smith (No 2) [2011] NSWSC 998; IAG Ltd v Riley [2013] NSWSC 684.

84. These issues are intriguing and have been the subject of extrajudicial discussion. ^[24] However, they need not be pursued because the third difficulty faced by the plaintiff is insuperable. She is not a “respondent” in this Court, but the moving party. Only the defendant could make an application, and it is almost certainly ineligible by reason of the constraints on applications imposed by s 6(7), dealing with corporations. In any event, it has not made such an application. The plaintiff’s application is refused.

    24. A Zhou and J Basten, “Statutory Interpretation: A Court by any other Name” (2023) 97 ALJ 166.

Conclusions

85. The plaintiff’s application for judicial review must be refused. The amended summons is dismissed with costs.

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Endnotes

Decision last updated: 29 August 2024