Henderson v QBE Insurance (Australia) Ltd
[2013] NSWCA 480
•23 December 2013
Court of Appeal
Supreme Court
New South Wales
Medium Neutral Citation: Henderson v QBE Insurance (Australia) Ltd [2013] NSWCA 480 Hearing dates: 1 August 2013 Decision date: 23 December 2013 Before: Beazley P at [1];
Meagher JA at [60];
Tobias AJA at [108]Decision: 1. Appeal allowed;
2. Judgment and orders of the court below in favour of the first respondent set aside;
3. Costs order in favour of the first respondent against the appellant in the court below set aside;
4. First respondent to pay the appellant's costs of the appeal and in the court below.
[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]
Catchwords: ADMINISTRATIVE LAW - judicial review - Motor Accidents Compensation Act 1999 - "additional relevant information" - whether "additional relevant information" capable of having material effect on outcome of previous assessment - whether "additional relevant information" a jurisdictional fact - whether proper officer's decision affected by jurisdictional error or error of law on face of record. Legislation Cited: Motor Accidents Compensation Act 1999
Supreme Court Act 1970Cases Cited: Allianz Australia Insurance Ltd v Kerr [2012] NSWCA 13
Craig v State of South Australia [1995] HCA 58; 184 CLR 163
D'Amore v Independent Commission Against Corruption [2013] NSWCA 187
Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26; 77 ALJR 1088
Enfield City Corporation v Development Assessment Commission [2000] HCA 5; 199 CLR 135
Ex parte Hebburn Ltd; Re Kearsley Shire Council (1947) 47 SR (NSW) 416
Foxtel Management Pty Ltd v Australian Competition and Consumer Commission [2000] FCA 589; 173 ALR 362
Garcia v Motor Accidents Authority of New South Wales [2009] NSWSC 1056
Goodwin v Commissioner of Police [2012] NSWCA 379
Kirk v Industrial Court of New South Wales [2010] HCA 1; 239 CLR 531
Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; 240 CLR 611
Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; 206 CLR 323
Plaintiff M70 v Minister for Immigration and Citizenship [2011] HCA 32; 244 CLR 144
QBE Insurance (Australia) Ltd v Miller [2013] NSWCA 442
R v Connell; Ex parte The Hetton Bellbird Collieries Ltd [1944] HCA 42; 69 CLR 407
Re Patterson; Ex parte Taylor [2001] HCA 51; 207 CLR 391
Rodger v De Gelder [2011] NSWCA 97; 80 NSWLR 594
Singh v Motor Accidents Authority of New South Wales (No 2) [2010] NSWSC 1443
Timbarra Protection Coalition Inc v Ross Mining NL [1999] NSWCA 8; 46 NSWLR 55
Woolworths v Pallas Newco Pty Ltd [2004] NSWCA 442; 61 NSWLR 707Category: Principal judgment Parties: Paul Henderson (Appellant)
QBE Insurance (Australia) Ltd (First Respondent)
Motor Accidents Authority of NSW (Second Respondent)Representation: Counsel:
BK Nolan (Appellant)
M Robinson SC; I Cullen (First Respondent)
Solicitors:
Carroll & O'Dea (Appellant)
Moray & Agnew (First Respondent)
I V Knight (Second Respondent)
File Number(s): 2013/396284 Decision under appeal
- Jurisdiction:
- 9111
- Citation:
- QBE Insurance (Australia) Ltd v Henderson [2012] NSWSC 1607
- Date of Decision:
- 2012-10-11 00:00:00
- Before:
- Rein J
- File Number(s):
- 2012/181451
Judgment
BEAZLEY P: This is an appeal from a decision of Rein J setting aside a determination of the Proper Officer of the Motor Accidents Authority pursuant to the Motor Accidents Compensation Act 1999 (the Act), s 62, refusing to refer Paul Henderson for a further medical assessment.
The essential issue on the appeal is the nature of the task required to be undertaken by the Proper Officer when determining, pursuant to the provisions of s 62, whether a matter is to be referred for further medical assessment.
Background facts
The appellant, Mr Henderson, was involved in a motor vehicle accident on 24 September 2008. The third party insurer of the other vehicle involved in the collision was the respondent, QBE Insurance (Australia) Ltd (QBE). QBE admitted liability for the accident by a notice given under the Motor Accidents Compensation Act, s 81. Mr Henderson was medically assessed pursuant to the procedures established under Pt 3.4 of the Act, by Dr Kossoff. Dr Kossoff found that Mr Henderson was suffering from psychiatric injuries and assessed him at 16 per cent of whole person impairment.
QBE subsequently lodged an application for further medical assessment pursuant to s 62 of the Act, claiming that there was "additional relevant information" about Mr Henderson's injury, within the meaning of s 62(1)(a). The "additional relevant information" was a report by Dr Akkerman, dated 6 February 2012 (Dr Akkerman's third report). Two earlier reports of Dr Akkerman had been considered by Dr Kossoff in her original assessment. Both the content of Dr Akkerman's third report and the terms of the application lodged by QBE are relevant.
Dr Akkerman examined Mr Henderson on 30 January 2012. Prior to the consultation, Dr Akkerman had available to him a report by Dr Allnut, psychiatrist, dated 24 May 2010 and a report prepared by Dr Kossoff in her role as an MAS Assessor. Dr Akkerman noted that Dr Allnut had diagnosed Mr Henderson as suffering from Post-Traumatic Stress Disorder. Dr Kossoff had diagnosed Mr Henderson with Major Depression and Post-Traumatic Stress Disorder and alcohol abuse. Dr Akkerman noted that when Dr Kossoff saw Mr Henderson on 13 October 2011 she had assessed him as having a whole person impairment of 15 per cent.
Mr Henderson told Dr Akkerman that he was "a bit worse" than he was when Dr Akkerman last saw him and that he had "initial and middle insomnia", "headaches" and that his left arm "gets numb". Mr Henderson complained that "his concentration [was] down"; as was his short term memory. He described his long term memory as normal, but his "level of interest" and "level of energy" were both "down". His appetite was "normal", but his libido was "down" and he was irritable. He said he was "not tearful", he no longer got upset and there was no "avoidance". He did not have nightmares, and only an "occasional flashback". He said that he still "startles easily", but was "no longer hyper-vigilant". He said he did not "feel different from others", there was "no restricted affect" and "no psychogenic amnesia". His medication consisted of "Lovan one per day Endep 10 mgs one per day".
Dr Akkerman was of the opinion that Mr Henderson had "recovered from his initial condition and ... now suffers from a condition that is unrelated to the accident". In his opinion, Mr Henderson's present condition was due to his alcohol intake. Dr Akkerman was of the opinion that Mr Henderson had "improved a lot" and no longer suffered from Post-Traumatic Stress Disorder. He assessed Mr Henderson, in accordance with the MAA Guidelines and the Guide to the Evaluation of Permanent Impairment as having an aggregate score of 10, with a median class of 2. This equated to a whole person impairment of 5 per cent.
QBE then filed the Application for Further Assessment of a Permanent Impairment Dispute by Medical Assessment Service pursuant to s 62(1)(a) on or about 10 February 2012. Sections 5 and 6 of the Application form provide for "Dispute information" and "Details about the permanent impairment dispute". In section 5, the "reason for further assessment", the following option was selected:
"There is additional relevant information about the injury or injuries sustained in the motor vehicle accident and this additional information is capable, if the matter was to proceed to further assessment, of altering the outcome of the dispute from that certified in the previous assessment."
In section 6 of the application form, the following pro forma directions are given:
"You must give detailed reasons as to how any deterioration of the injury or additional relevant information about the injury is capable, if the matter was to proceed to further assessment, of altering the outcome of the dispute from that certified in the previous assessment.
You MUST refer to the particular sections or paragraphs of the documents you are providing in support."
There is then a section specified "Detailed reasons" required to be completed by the applicant for further assessment. In this case, QBE completed that part of the Application form as follows:
"Dr Klaas Akkerman, Psychiatrist, reported on 6 February 2012 that he considered that [Mr Henderson] no longer suffered Post Traumatic Stress Disorder. He diagnosed Major Depression and alcohol abuse, which was constitutional in nature and unrelated to the subject accident. In addition, Dr Akkerman assesses the Median Class as 2 which equates to 5% WPI. He considered that [Mr Henderson] had significantly improved.
Given the views as to causation and the further PIRS Assessment [QBE] contends that the report of Dr Akkerman is likely to alter the outcome of the dispute as [Mr Henderson] will no longer exceed the WPI thresholds entitling him to recover for economic loss, which had previously been assessed at Median Class 3 (15%) by MAS assessor Kossoff."
In section 7 of the application form, in the section, "Injuries information", QBE stated that the "Bodily location of injury" was "Psychological" and that the "Injury type" was "PTSD; Major Depression Disorder; Alcohol abuse". Two documents were annexed to the report, that of Dr Akkerman dated 6 February 2012 and Dr Kossoff's report of 31 October 2011 and her Certificate.
By letter dated 17 April 2012, the Proper Officer informed QBE of her decision not to refer Mr Henderson for further medical assessment. Her reasons were as follows:
"I have considered the application for further assessment, the reply and all supporting documentation submitted in this matter.
I am not satisfied that the additional information is "additional relevant information" that is such as to be capable of having a material effect on the outcome of the previous assessment as required by section 62(1A) of the Motor Accidents Compensation Act 1999. I have therefore determined that the application shall not be referred for further assessment.
The applicant seeks to rely on the report of Dr Akkerman as evidence that the claimant's condition has significantly improved. I note that in his previous report dated 17 December 2010, Dr Akkerman assessed the claimant as being Median Class Value 2, with an Aggregate Score of 12, and a whole person impairment of 6%. This report was considered by Assessor Kossoff in her previous determination and the Assessor came to a different conclusion.
In terms of assessment, Dr Akkerman's 2010 report does not differ significantly from his most recent report which assesses the claimant as being Median Class Value 2, with an Aggregate Score of 10, and a whole person impairment of 5%. The issue of causation was considered by Assessor Kossoff and was addressed in her previous determination. Whilst Dr Akkerman comes to a different conclusion in his most recent report, this is not 'additional relevant information' as it is an issue that has previously been canvassed and considered by the Assessor."
The respondent sought judicial review of the Proper Officer's decision under the Supreme Court Act 1970, s 69. The respondent claimed that the application for further medical assessment "plainly contained" additional relevant information about the injury and that the Proper Officer "misconstrued or misunderstood her powers" in finding that there was no such information. The respondent also claimed that the Proper Officer took into account an irrelevant consideration, misunderstood s 62, failed to make her own assessment and failed to set out necessary or lawful reasons. On this basis, the respondent asked the court to quash or set aside the decision of the Proper Officer as ultra vires or by reason of jurisdictional error.
The primary judge observed, at [23], that Dr Akkerman had changed his opinion on whether Mr Henderson was "now suffering from Post-Traumatic Stress Disorder" and had done so on the basis of what Mr Henderson had told him in an examination occurring after the MAS Assessment conducted by Dr Kossoff. His Honour considered that the relevant question for him to determine was whether the factual material provided by Dr Akkerman and recorded in his third report was different from the material provided and recorded in the earlier reports.
It was common ground between the parties on the hearing before the primary judge that the Proper Officer had only addressed the first question in s 62(1)(a) and had not determined the second question required by s 62(1)(a) as to whether the additional information was "such as to be capable of having a material effect on the outcome of a previous assessment". I do not agree that is so, but I will return to that later in these reasons.
The primary judge, at [33], reiterated the task which he considered was necessary to determine whether Dr Akkerman's report contained "additional relevant information about the injury". His Honour then set out, at [34], the result of his comparison of Dr Akkerman's three reports. He set out 10 differences, as follows: (1) middle insomnia (in addition to initial insomnia previously noted); (2) level of interest down; (3) libido down; (4) no longer gets upset when he thinks about the accident; (5) no avoidance; (6) occasional flashbacks; (7) no hypervigilance; (8) no nightmares; (9) left arm gets numb and headaches; (10) on Endep, Panadol and Celebres (in addition to Lovan, Natrilix and Pariet). His Honour noted that the symptoms referred to in (1), (2) and (3) had worsened and those in (4)-(8) had improved. His Honour noted that (9) was physical and not psychological and further noted, in (10), that there were two new medications for pain relief.
His Honour was, therefore, of the view that as items (4)-(8) were all matters considered by Dr Kossoff "in forming the view that she formed", they were matters which were material and were additional relevant information. In other words, his Honour undertook the task of determining whether Dr Akkerman's third report constituted "additional relevant information about the injury" within the meaning of and for the purposes of s 62(1)(a). It followed, on his Honour's view, that the Proper Officer's decision should be set aside. His Honour, at [39]-[40], made a declaration that QBE's application made pursuant to s 62 contained "additional relevant information about the injury" within the meaning of that expression in s 62(1)(a) and remitted the application to the Motor Accidents Authority for reallocation of the matter for determination according to law. His Honour, at [41]-[42], ordered Mr Henderson to pay QBE's costs, but refused a request that he be granted a certificate under the Suitors' Fund Act 1951, on the basis that a person exercising a power under s 62 qualified as a court within the meaning of the Suitors' Fund Act, s 6(1).
Issues on the appeal
I have already identified the central question raised by the appeal. In oral submissions, Mr Henderson articulated three complaints, namely:
(1) the primary judge erred in finding that the statutory precondition to the exercise of power by the Proper Officer to refer the matter for further assessment was enlivened;
(2) to the extent that his Honour found that the statutory precondition for the exercise of the power had been enlivened, he failed to proceed to determine the second factual and intertwined question as posed by s 62(1)(a) and s 62(1A); and
(3) the primary judge erred in the exercise of his costs discretion.
The costs question can be put aside for the moment. In the manner in which the appeal was argued, two questions were central to the appeal. The first was the task of the Proper Officer under s 62. The second was whether the requirement that there be additional relevant information about the injury "capable of having a material effect on the outcome of the assessment" was an objective jurisdictional fact (apps subs 30). These two questions are, of course, interlinked and depend upon the proper construction of s 62 in the context of other relevant provisions of the Act.
The legislation
The Motor Accidents Compensation Act is an Act to establish a scheme of compulsory third party insurance and the payment of compensation relating, inter alia, to the injury to persons as a consequence of motor accidents. Its objects include the provision of compensation for compensable injuries sustained in motor vehicle accidents and the encouragement of early resolution of compensation claims: s 5(1)(b). Chapter 3 relates to motor accident injuries. The Chapter applies to injuries caused by motor accidents occurring after the commencement of the Act: s 43; and insofar as is relevant to these proceedings, contains ss 44, 59, 60, 61 and 62.
Section 44 provides that the Motor Accidents Authority may issue medical guidelines with respect to the assessment of the degree of permanent impairment of an injured person: s 44(1)(c); and the procedure for the assessment and review of assessments under Pt 3.4: s 44(1)(d). Section 59 requires the Motor Accidents Authority to appoint medical assessors for the purposes of Pt 3. Pursuant to s 60, where medical disputes are referred to the Authority, either by a party to the dispute, or by a court or claims assessor, the Authority is to arrange for the dispute to be referred to one or more medical assessors. Section 61 provides for the status of medical assessments. Its provisions are, relevantly, as follows:
"61 Status of medical assessments
(1) The medical assessor ... to whom a medical dispute is referred is ... to give a certificate as to the matters referred for assessment.
(2) Any such certificate as to a medical assessment matter is conclusive evidence as to the matters certified in any court proceedings or in any assessment by a claims assessor in respect of the claim concerned."
Section 62, which is the central provision in these proceedings then provides:
"62 Referral of matter for further medical assessment
(1) A matter referred for assessment under this Part may be referred again on one or more further occasions in accordance with this Part:
(a) by any party to the medical dispute, but only on the grounds of the deterioration of the injury or additional relevant information about the injury, or
(b) by a court or claims assessor.
(1A) A matter may not be referred again for assessment by a party to the medical dispute on the grounds of deterioration of the injury or additional relevant information about the injury unless the deterioration or additional information is such as to be capable of having a material effect on the outcome of the previous assessment.
(1B) Referral of a matter under this section is to be by referral to the member of staff of the Authority who is designated by the Authority for the purpose (in this Part referred to as the proper officer of the Authority).
(2) A certificate as to a matter referred again for assessment prevails over any previous certificate as to the matter to the extent of any inconsistency."
Reference should be also made to s 131 and s 133 in Pt 5 of the Act, relating to the award of damages. Section 131 provides that no damages may be awarded for non-economic loss unless the degree of permanent impairment of the injured person as a result of the injury caused by the motor accident is greater than 10 per cent. Section 133 provides that the assessment of the degree of permanent impairment is to be expressed as a percentage, in accordance with the processes specified in Pt 5. The relevance of this for present purposes is that should Dr Kossoff's assessment of 15 per cent be maintained, Mr Henderson will be entitled to damages for non=economic loss. On Dr Akkerman's assessment, he would not be entitled to damages for non-economic loss.
The Medical Assessment Authority has issued guidelines in respect of the procedure for a referral by a Proper Officer under s 62. Those guidelines are contained in Ch 14, Div 4 of the Medical Assessment Guidelines (the Guidelines) and provide, relevantly:
"Proper Officer determination
14.3 The Allocation Review of an application for further assessment is to be conducted in accordance with Chapter 9.
14.4 When conducting an Allocation Review of an application for further assessment pursuant to Chapter 9, the Proper Officer is to determine whether the application is suitable for referral for further assessment.
14.5 When determining whether a matter should be referred for further assessment under section 62(1)(a) whilst conducting an Allocation Review, the Proper Officer shall have regard to:
14.5.1 the application and any reply;
14.5.2 any other applications and replies and/or MAS certificates on this medical dispute or any other medical disputes at MAS in relation to the same claimant, not limited to the same matter, after the parties have been provided with a copy of these documents; and
14.5.3 the objects of the Act and the objects of MAS.
14.6 For the purposes of section 62(1A) the word 'material' includes that it is relevant and capable of altering the outcome of a dispute about:
14.6.1 reasonable and necessary treatment, from 'not reasonable and necessary' to 'reasonable and necessary' or vice versa;
14.6.2 related treatment, from 'not related' to 'related' or vice-versa; or
14.6.3 permanent impairment, from 'not greater than 10% whole person impairment' to 'greater than 10% whole person impairment' or vice-versa.
14.7 If the Proper Officer is not satisfied that the deterioration of the injury or the additional relevant information about the injury would have a material effect on the outcome of the application, the Proper Officer may dismiss the application.
14.8 The Proper Officer is to provide the parties with brief written reasons for the decision at the same time as, or as part of the notification to the parties, of the outcome of the Allocation Review as required by clause 9.2."
As Meagher JA observes, at [81], cl 14.7 states a different requirement from s 62(1A). That difference is not material in this case, but could be vital in different factual circumstances. The statutory provision must, of course, prevail.
Interrelationship of s 62 and Ch 14
As is apparent from the terms of s 62, there are two distinct steps involved in a matter being referred for further medical assessment. The first is contained within s 62(1)(a), namely, that it must be "only on the grounds of ... additional relevant information". Clause 14.5 of the Guidelines specifies that when making a determination under s 62(1)(a), the Proper Officer "shall have regard to" three matters: (1) the application and any reply; (2) any other applications and replies and/or certificates issued under s 61 on the medical dispute; and (3) the objects of the Act and the objects of the MAS.
If there is "additional relevant information about the injury" then referral for further medical assessment is precluded "unless the deterioration or additional information is such as to be capable of having a material effect on the outcome of the previous assessment": s 62(1A). Clause 14.6 of the Guidelines defines the word "material" in s 62(1A) as further additional information capable of altering the outcome of a dispute about, relevantly, permanent impairment from not greater than 10 per cent to greater than 10 per cent whole person impairment or vice versa.
Clause 14.7 then provides that if the Proper Officer is not satisfied of the requirement in s 62(1A), then the Proper Officer may dismiss the application.
The question which has been argued on the appeal is whether those two steps constituted a jurisdictional fact which needed to be established, on an objective basis, before a referral could be made. Mr Henderson submitted that both aspects were jurisdictional facts which must objectively be found to exist. QBE submitted that each step involved an evaluative task, which was amenable to judicial review for error of law and were not jurisdictional facts. Both parties relied upon the judgment of this Court in Woolworths v Pallas Newco Pty Ltd [2004] NSWCA 442; 61 NSWLR 707.
In Woolworths v Pallas Newco, Spigelman CJ undertook an analysis of the factors that indicate whether an aspect of administrative decision making involved a jurisdictional fact. Relying on that decision, Mr Henderson relied upon prohibitive language in s 62, namely, "but only on the grounds" and "the matter may not be referred" in s 62(1)(a) and s 62(1A) respectively as indicative that the requirements of s 62 were jurisdictional facts. In this regard, Spigelman CJ, at [32], had observed in Woolworths v Pallas Newco that the terminology of 'prohibition' "has a level of force more consistent with a finding of jurisdictional fact than with the conferral of an ability to err within jurisdiction".
QBE, for its part, relied upon the observation of Spigelman CJ in Woolworths v Pallas Newco at [56], that:
"Where issues of fact and degree arise it will often be the case that these are matters which a decision-maker is intended by Parliament to determine and, accordingly, any error is an error within jurisdiction rather than an error going to jurisdiction."
Spigelman CJ further observed, at [57], that certain classifications in the Planning Act under consideration in that case were jurisdictional, whereas others were not. His Honour continued, at [58]:
"For example, an environmental planning instrument may require the assessment of a wide range of matters of considerable complexity involving the formation of value judgments. Such a decision-making process is unlikely to involve a jurisdictional fact. (See, e.g. the High Court's endorsement in Australian Heritage Commission v Mount Isa Mines (1997) 187 CLR 297 at 303-304 of the judgment of Black CJ in Australian Heritage Commission v Mount Isa Mines (1995) 60 FCR 456 at 465-466, an approach also affirmed in Canberra Tradesmen's Union Club Inc v Commissioner for Land and Planning (1999) 86 FCR 266 at 272.)"
His Honour, at [60], then noted that the fact that an evaluative judgment was required in determining the existence of facts did not necessarily mean that the fact was not jurisdictional. His Honour provided a number of examples. Thus, the question whether the development was "likely to significantly affect threatened species" was found to be jurisdictional in Timbarra Protection Coalition Inc v Ross Mining NL (1999) 46 NSWLR 55. Whether a particular service was "necessary" for the purpose of enabling a supply of a broadcasting service was also held to be jurisdictional in Foxtel Management Pty Ltd v Australian Competition and Consumer Commission [2000] FCA 589; 173 ALR 362 at [123]-[124]. Likewise, the question whether an industry was "likely ... to produce conditions which are, or may become, offensive or repugnant to the occupiers or users of land" was found to be jurisdictional: Enfield City Corporation v Development Assessment Commission [2000] HCA 5; 199 CLR 135.
Spigelman CJ concluded, at [61], that it was the "overall statutory context" that was determinative as to whether:
"... Parliament intended the existence of the fact to both objectively exist and be essential, notwithstanding the element of fact and degree, or even of judgement, that was required in the process of determining whether or not the relevant fact existed."
In the case under consideration in Woolworths v Pallas Newco, Spigelman CJ was of the view that the most significant indicator pointing towards the classification as not being a jurisdictional fact arose from the degree of inconvenience if a consent valid on its face could not be relied upon.
In Enfield City Corporation v Development Assessment Commission (to which Spigelman CJ referred) the plurality, Gleeson CJ, Gummow, Kirby and Hayne JJ, stated, at [28]:
"The term 'jurisdictional fact' (which may be a complex of elements) is often used to identify that criterion, satisfaction of which enlivens the power of the decision-maker to exercise a discretion. Used here, it identifies a criterion, satisfaction of which mandates a particular outcome. Section 35(3) forbids the relevant authority granting a provisional development plan consent to a 'non-complying' development unless, in a case such as the present, the Minister and the Council concur in the granting of the consent. The determination of the question whether Collex proposed a 'non-complying' development, which turned upon the application of the criterion of 'special industry', was a condition upon the existence of which there operated the obligation that the Commission not grant consent."
The question as to what constitutes a jurisdictional fact has been the subject of considerable attention in the High Court in recent years. As is apparent from the High Court authorities, the statement of principle as to what constitutes a jurisdictional fact is reasonably consistent. However, the individual members of the Court tend to divide on when a particular statutory power involves a jurisdictional fact. This was exemplified in Plaintiff M70 v Minister for Immigration and Citizenship [2011] HCA 32; 244 CLR 144. In that case, the Court was concerned with the validity of a declaration made by the Minister under the Migration Act, s 198A(3)(a), which relevantly provided:
"The Minister may:
(a) declare in writing that a specified country:
(i) provides access, for persons seeking asylum, to effective procedures for assessing their need for protection; and
(ii) provides protection for persons seeking asylum, pending determination of their refugee status; and
(iii) provides protection to persons who are given refugee status, pending their voluntary repatriation to their country of origin or resettlement in another country; and
(iv) meets relevant human rights standards in providing that protection; and
(b) in writing, revoke a declaration made under paragraph (a)."
Under this arrangement, the Minister sent two irregular maritime arrivals (Plaintiff M70/2011 and Plaintiff M106/2011) to Malaysia for processing of their refugee applications. The plaintiffs challenged the decision to do so on the basis that the matters in s 198A(3)(a)(i)-(iv) were objective jurisdictional facts that did not exist in respect of Malaysia.
French CJ explained what was meant by a "jurisdictional fact". His Honour stated, at [57]:
"The term 'jurisdictional fact' applied to the exercise of a statutory power is often used to designate a factual criterion, satisfaction of which is necessary to enliven the power of a decision-maker to exercise a discretion. The criterion may be a 'complex of elements'. When a criterion conditioning the exercise of statutory power involves assessment and value judgments on the part of the decision-maker, it is difficult to characterise the criterion as a jurisdictional fact, the existence or non-existence of which may be reviewed by a court. The decision-maker's assessment or evaluation may be an element of the criterion or may be the criterion itself. Where a power is expressly conditioned upon the formation of a state of mind by the decision-maker, be it an opinion, belief, state of satisfaction or suspicion, the existence of the state of mind itself will constitute a jurisdictional fact. If by necessary implication the power is conditioned upon the formation of an opinion or belief on the part of the decision-maker then the existence of that opinion or belief can also be viewed as a jurisdictional fact."
His Honour observed, at [58], that the question was one of statutory construction. On the basis that the language of each of the subparas (i)-(iv) of s 198A(3)(a) indicated the need for "ministerial "evaluative judgment" his Honour continued:
"... consideration of the domestic law of the proposed receiving country and its binding commitments and obligations under international law is mandated. That consideration will necessarily be an evaluative task. The words 'provide', 'access', 'effective procedures' and 'meets relevant human rights standards' all point in that direction. The function conferred upon the Minister is an executive function to be carried out according to law. Absent clear words, the subsection should not be construed as conferring upon courts the power to substitute their judgment for that of the Minister by characterising the matters in sub-pars (i) to (iv) as jurisdictional facts." (citation omitted)
French CJ, at [59], accepted the argument against the Minister that it was necessary for the Minister in the formation of his evaluative judgment to properly construe the provisions of the section. The proper construction was a necessary condition of the validity of the Minister's declaration. French CJ considered that, "properly construed [the matters set out in s 198A(3)(a)] define the content of the declaration which the Parliament has authorised". As his Honour pointed out, the misconstruction of the criterion would be a jurisdictional error: see Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; 206 CLR 323.
Gummow, Hayne, Crennan and Bell JJ (the plurality) noted, at [107], that the plaintiff's primary position was that each of the four factors specified in s 198A(3)(a) were jurisdictional facts "in an objective sense", that is, "a fact that must exist, objectively, before an administrative jurisdiction to exercise a power is enlivened". Their Honours, at [109], rejected the Minister's position that the factors specified in (i)-(iv) were not jurisdictional facts. They stated that to read the section in that way would mean that it was validly engaged whether the Minister bona fide sought or believed that the relevant criteria were met. Their Honours considered such a construction would pay insufficient regard to the section's text, context and evident purpose. As their Honours stated, at [109], "[t]ext, context and purpose point to the need to identify the relevant criteria with particularity".
The importance of identifying whether a statutory provision prescribes a jurisdictional fact or facts as a condition of its exercise in reviewing a decision of a decision maker under the section. If the matters specified in the particular provision are jurisdictional facts, the court is itself required to determine whether the jurisdictional facts exist. Otherwise, in order for a party to obtain judicial review, error of law must be established.
QBE submitted that the question as to whether s 62 concerned itself with jurisdictional facts had been determined by this Court in Roger v De Gelder [2012] NSWCA 167; 80 NSWLR 594. In that case, the respondent, Mr De Gelder, was injured in a motor vehicle accident by a vehicle driven by the appellant, Mr Rodger. Mr De Gelder made a claim for damages under the Act and was assessed as having whole person impairment greater than 10 per cent which entitled him to damages for non-economic loss under s 131 of the Act. A Medical Panel confirmed this assessment on review. Mr Rodger made an application under s 62 of the Act for a further medical assessment. The Proper Officer granted that application and referred the matter for further assessment. At the further medical assessment, Mr De Gelder was assessed as having a whole person impairment of less than 10 per cent, which precluded damages for non-economic loss. Mr De Gelder sought review of the further assessment but this was refused.
Mr De Gelder commenced judicial review proceedings in the Supreme Court to challenge the validity of both the determination of the Proper Officer to refer his claim for a further review and the determination made on the further assessment. He submitted that the Proper Officer committed jurisdictional error by, inter alia, considering irrelevant material and by failing to consider relevant material and sought relief by way of declarations and certiorari to quash the decisions. Mr De Gelder was successful and Mr Rodger appealed that decision, with leave, to the Court of Appeal.
On appeal, Mr Rodger submitted that the primary judge (Davies J) erred in finding that the Proper Officer asked herself the wrong question ("wrong question issue"); and in exercising his discretion in failing to have regard to the fact that Mr De Gelder's participation in the further assessment process and sought a review of that assessment ("the discretionary issue"). Relying on the decision in Singh v Motor Accidents Authority of NSW [2010] NSWSC 550, Mr Rodger also submitted that any action taken by a Proper Officer under s 62 involves a procedural task and is not amenable to judicial review.
The Court upheld Mr Rodger's submission on the wrong question issue but rejected his submissions on the discretionary issue and his submissions based on Singh regarding the procedural nature of the Proper Officer's role, which are set out at [37]-[38] and [44] above. Consequently, the Court upheld the appeal.
Macfarlan JA, in his additional reasons in that case, at [113], stated:
"The decision to refer a claimant for a further medical assessment is made by an administrative officer and, whilst not a purely procedural step, is nevertheless not the ultimate step in the relevant process (that being the further medical assessment itself). Bearing this in mind, my view is that on the proper construction of s 62(1A), the capacity of the additional information to affect a further medical assessment is a matter for the subjective satisfaction of the Proper Officer. It is not necessary that that capacity exist as a matter of objective fact." (emphasis added)
Although I found it unnecessary to determine the issue whether the Proper Officer's decision to refer a matter for further assessment involved jurisdictional facts, the matter is directly in issue in this case. I agree with the remarks of Macfarlan JA. Further, this Court has now decided that s 62 is not concerned with jurisdictional facts: see QBE Insurance (Australia) Ltd v Miller [2013] NSWCA 442. I agree with the Court's decision in that matter and in particular with the analysis of Basten JA at [30]-[35].
It follows, therefore, that the principal argument advanced by the appellant on the appeal must be rejected.
That leaves the question whether there was error of law in the Proper Officer's determination in rejecting the application that the matter be referred for further medical assessment. Section 62 precludes a referral unless that additional information has a particular quality, namely, that it be "capable of having a material effect on the outcome of the previous assessment". The Guidelines provide that if the Proper Officer is not satisfied of that matter, the application may be dismissed. Importantly, the Guidelines do not require satisfaction of something. Rather, they specify the outcome if the Proper Officer is not satisfied of something, namely, the matter referred to in s 62(1A).
It is not clear as to the basis upon which the primary judge approached his task, as he appeared to have undertaken his own review of the medical reports to determine whether there was "additional relevant material". QBE recognised this difficulty, but, more importantly, did not identify where his Honour had identified any error of law. Nor, in my opinion, did QBE identify an error of law in the determination of the decision maker. Leaving that aside, however, the question for the Proper Officer was to determine was the application made by QBE for a further medical assessment. As Meagher JA has identified at [105], that application was in relation to the assessment of the degree of whole person impairment and whether Mr Henderson's claimed Post-Traumatic Stress Disorder, that had been caused by the accident. The Proper Officer addressed those matters and determined whether those matters were such "as to be capable of having a material effect on the outcome of the previous assessment".
It follows, in my opinion, that the trial judge erred in making the declaration and in setting aside the determination of the Proper Officer.
That leaves the question of costs. If I am correct in the conclusion that the primary judge erred in setting aside the Proper Officer's determination, then his Honour's costs order must also be set aside. Accordingly, the costs issue does not arise. I will, however, briefly state my reasons on that question.
The primary judge declined to make an order under the Suitors' Fund Act on the basis that a person exercising power under s 62 did not constitute "a court" for the purpose of the Act. The relevant provisions of that Act are as follows:
"6 Costs of certain appeals
(1) If an appeal against the decision of a court:
(a) to the Supreme Court on a question of law or fact, or
(b) to the High Court from a decision of the Supreme Court on a question of law,
succeeds, the Supreme Court may, on application, grant to the respondent to the appeal or to any one or more of several respondents to the appeal an indemnity certificate in respect of the appeal ...
6C Payments not otherwise authorised by this Act
(1) If:
(a) a party to an appeal or other proceedings incurs or is liable to pay costs in the appeal or proceedings,
(b) the party is not otherwise entitled to a payment from the Fund in respect of the costs, and
(c) the Director-General is of the opinion that a payment from the Fund in respect of the costs, although not authorised by section 6, 6A or 6B, would be within the spirit and intent of those sections,
the Director-General may, with the concurrence of the Attorney General, pay from the Fund to the party such amount towards the costs as is assessed by the Director-General having regard to the circumstances of the case.(2) A payment under this section shall not exceed $10,000."
In my opinion, his Honour was correct in finding that a determination by a Proper Officer under s 62 did not constitute a decision of "a court".
There is a further problem with the application of s 6 in the circumstances of this case, in that the proceedings before the primary judge were not by way of an appeal, but were by way of judicial review pursuant to the Supreme Court Act, s 69. Judicial review proceedings would, however, fall within the meaning of "other proceedings" within the meaning of s 6C.
However, s 6C is not a matter in respect of which the court may make an order. Its terms are clear, if the matters specified in s 6C(1)(a), (b) or (c) are satisfied, the Director General has a discretion whether to pay an amount from the Suitors' Fund. That discretion is to be exercised with the concurrence of the Attorney General. It is not a matter in respect of which the Court may make an order, direction, or declaration. Accordingly, had it been necessary to do so, I would have rejected this ground of appeal.
Orders
The orders I propose are:
1. Appeal allowed;
2. Judgment and orders of the court below in favour of the first respondent set aside;
3. Costs order in favour of the first respondent against the appellant in the court below set aside;
4. First respondent to pay the appellant's costs of the appeal and in the court below.
MEAGHER JA: This is an appeal from an order of Rein J setting aside a decision of an officer of the Motor Accidents Authority (the Authority) refusing to refer the appellant (Mr Henderson) for a further medical assessment following an application made by the first respondent (QBE) under s 62 of the Motor Accidents Compensation Act 1999 (the MAC Act): QBE Insurance (Australia) Ltd v Henderson (Rein J, unreported, 11 December 2012). That order was made in the exercise of this Court's supervisory jurisdiction.
The question at the heart of the appeal is whether the relevant officer failed correctly to identify and address, for the purposes of s 62(1A), the "additional relevant information" specified by QBE as the ground of its application for a further medical assessment. That question was raised by QBE's principal ground of review which was that the officer had "misconstrued or misunderstood her powers" and failed to apply herself to the real question to be addressed under that subsection with the result that there had been a constructive failure to exercise jurisdiction: see Ex parte Hebburn Ltd; Re Kearsley Shire Council (1947) 47 SR (NSW) 416 at 420 (Jordan CJ) and Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; 206 CLR 323 at [41] (Gaudron J).
The primary judge concluded that the decision-maker had failed to identify and consider the correct information and set aside her decision refusing to refer QBE's application. In doing so, his Honour must be taken to have accepted this argument, although he did not in terms say so or identify what was said to be the error which produced the misunderstanding or misconception.
Before this Court, the first argument made on behalf of Mr Henderson was that the primary judge had treated the matters which the officer was required to address under s 62(1A) as jurisdictional facts to be objectively determined by this Court when exercising its supervisory jurisdiction. That issue was not raised before or dealt with by the primary judge and because it did not form the basis of the primary judge's decision, it could not be raised as a ground of appeal. Nor was it sought to be raised by any notice of contention. For those reasons this first argument of the appellant must be rejected.
The alternative and secondary argument put on behalf of Mr Henderson was that the primary judge was wrong to conclude that there had been any error on the part of the decision-maker in identifying the information relied upon by QBE for the purposes of s 62(1A). In my view Mr Henderson's appeal on that basis should be allowed for the reasons which follow.
QBE's application for a further medical assessment
QBE is the third party insurer liable for a motor vehicle claim made by the Mr Henderson. There is an issue as to whether the degree of permanent impairment from which he suffers is greater than 10 per cent. The dispute as to that issue was referred by the Authority for medical assessment under s 60(1) by a medical assessor who had been appointed under s 59(1).
That assessor (Dr Kossoff) issued a certificate dated 3 November 2011 in respect of the referred dispute. That certificate contained reasons as required by s 61(9). It certified:
"The following injuries caused by the motor accident give rise to a permanent impairment which IS GREATER THAN 10 PER CENT:
- Psychological - Posttraumatic Stress Disorder/Posttraumatic Stress Disorder with associated depressive and anxiety symptoms..."
The status of such a certificate is described by s 61. It is conclusive evidence as to the matters certified in any court proceedings or in any assessment by a claims assessor in respect of the claim concerned. In court proceedings, however, the court may reject the certificate as to all or any of the matters certified in it on the grounds of denial of procedural fairness to a party in connection with the issue of the certificate; but only if it is satisfied that admission of the certificate as to the matters concerned would cause substantial injustice to that party.
The medical reports which Dr Kossoff took into account in arriving at her assessment included two reports of Dr Akkerman, a psychiatrist retained on behalf of QBE, and two reports of Dr Allnutt, a psychiatrist retained on behalf of Mr Henderson. Dr Akkerman's reports were dated 9 November 2009 and 13 December 2010 and Dr Allnutt's reports were dated 24 May 2010 and 28 April 2011.
In his second report, Dr Akkerman diagnosed Mr Henderson as suffering from posttraumatic stress disorder, major depression and alcohol abuse. He considered that the motor vehicle accident had caused each of those conditions, although the alcohol abuse may have been pre-existing. Applying the Authority's Impairment Assessment Guidelines (1 October 2007), which were issued pursuant to s 44(1)(c) of the MAC Act, Dr Akkerman assessed Mr Henderson's whole person impairment at six per cent.
Mr Henderson was re-examined by Dr Akkerman after the issue of Dr Kossoff's certificate. Following that examination, which occurred on 30 January 2012, Dr Akkerman prepared a further report dated 6 February 2012. In that third report, he expressed the opinion that Mr Henderson no longer suffered from posttraumatic stress disorder but continued to suffer from major depression and alcohol abuse, which Dr Akkerman described as having a "constitutional basis" and as not being related to the accident.
On 10 February 2012 QBE, no doubt motivated by the content of that report, referred the question whether Mr Henderson's degree of permanent impairment was greater than ten per cent to the Authority for further medical assessment. It did so under ss 60 and 62 of the MAC Act which provide:
"60 Medical assessment procedures
(1) A medical dispute may be referred to the Authority for assessment under this Part by either party to the dispute or by a Court or claims assessor.
(2) The Authority is to arrange for the dispute to be referred to one or more medical assessors."
(3), (4) (Repealed)
62 Referral of matter for further medical assessment
"(1) A matter referred for assessment under this Part may be referred again on one or more further occasions in accordance with this Part:
(a) by any party to the medical dispute, but only on the grounds of the deterioration of the injury or additional relevant information about the injury, or
(b) by a court or claims assessor.
(1A) A matter may not be referred again for assessment by a party to the medical dispute on the grounds of deterioration of the injury or additional relevant information about the injury unless the deterioration or additional information is such as to be capable of having a material effect on the outcome of the previous assessment.
(1B) Referral of a matter under this section is to be by referral to the officer of the Authority designated by the Authority for the purpose (in this Part referred to as the Proper Officer of the Authority).
(2) A certificate as to a matter referred again for assessment prevails over any previous certificate as to the matter to the extent of any inconsistency."
The application for that further medical assessment was made in the form required by cl 14.1 of the Medical Assessment Guidelines (1 October 2008) issued by the Authority pursuant to s 44(1)(d) of the MAC Act. That subsection enables guidelines to be issued with respect to:
"(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."
The relevant Medical Assessment Guidelines are extracted in this Court's judgment in Rodger v De Gelder [2011] NSWCA 97; 80 NSWLR 594 at [15].
The form of that application (MAS Form 4API) contains a number of sections which are to be completed by the applicant. Section 5 is headed "Dispute Information" and includes a subheading "What is the reason for further assessment?". It contains two boxes, one to be marked with a cross if the or a reason for the application is "deterioration of the injury or injuries sustained in the motor vehicle accident and this deterioration is capable, if the matter was to proceed to further assessment, of altering the outcome of the dispute from that certified in the previous assessment"; and the other if the or a reason for the application is "additional relevant information about the injury or injuries sustained in the motor vehicle accident" which has the same characteristic. In QBE's application that second box was marked with a cross and reference was made to Dr Kossoff's assessment and certificate dated 3 November 2011.
Section 6 is headed "Details about the Permanent Impairment Dispute" and states that the applicant must "give detailed reasons as to how any deterioration of the injury or additional relevant information about the injury is capable, if the matter was to proceed to further assessment, of altering the outcome of the dispute from that certified in the previous assessment". It continued in parenthesis: "You MUST refer to particular sections or paragraphs of the documents you are providing in support".
In its application, QBE wrote, under the heading "Detailed reasons":
"Dr Klaas Akkerman, Psychiatrist, reported on 6 February 2012 that he considered that the claimant no longer suffered Posttraumatic Stress Disorder. He diagnosed Major Depression and alcohol abuse, which was constitutional in nature and unrelated to the subject accident. In addition, Dr Akkerman assesses the Median Class as 2 which equates to 5 per cent WPI. He considered that the claimant had significantly improved.
Given the views as to causation and the further PIRS assessment, the insurer contends that the report of Dr Akkerman is likely to alter the outcome of the dispute as the claimant will no longer exceed the WPI thresholds entitling him to recover damages for economic loss, which had previously been assessed at Median Class 3 (15 per cent) by MAS assessor Kossoff."
Section 7 is headed "Injuries Information" and requires that the "injuries caused by the accident that you consider currently give rise to an assessable degree of permanent impairment" be listed. In that section QBE describes the injury as "Psychological" and the injury type as "PTSD - Major Depression Disorder - Alcohol abuse". In s 8, which is headed "Document Information", QBE identifies and attaches the report of Dr Akkerman dated 6 February 2012 and Dr Kossoff's report and certificate. The medical assessor's report was attached because the form provided that the application would be rejected if a "copy of the original MAS certificate" was not listed and attached.
Mr Henderson filed a reply to that application. That reply was in the form approved by the Authority by cl 14.1 of the Medical Assessment Guidelines (MAS Form 4RPI). That Reply contained a three page legal submission which argued, by reference to two decisions of Rothman J (Garcia v Motor Accidents Authority of New South Wales [2009] NSWSC 1056 and Singh v Motor Accidents Authority of New South Wales (No 2) [2010] NSWSC 1443), that Dr Akkerman's altered opinion that Mr Henderson now only suffered from "alcohol abuse and secondary major depression which is unrelated to the accident" did not constitute "additional relevant information".
The decision of the Acting Proper Officer
Section 60(1) provides that a medical dispute may be referred to the Authority for assessment by either party to the dispute. If that entitlement is exercised the Authority must arrange for the assessment to take place: s 60(2). Under s 62(1) a matter may be referred for further medical assessment by either party; but only on one or both of two grounds. They are "the deterioration of the injury" or "additional relevant information about the injury". Section 62(1B) requires that the referral under s 62(1) be "by referral to the Proper Officer of the Authority". The unstated but obvious reason for referral to that officer is to enable him or her to determine whether the prohibition in s 62(1A) applies. To do so the officer must consider and decide whether the ground of deterioration of the injury or of additional relevant information about the injury is capable of having a material effect on the outcome of the previous assessment. In Rodger v De Gelder this Court (Macfarlan JA at [113]; McColl JA agreeing at [103]) considered that as a matter of the construction of s 62(1A) this question of capacity was one "for the subjective satisfaction of the Proper Officer" and that it was not necessary that the "capacity exist as a matter of objective fact". In its decision in QBE Insurance (Australia) Ltd v Miller [2013] NSWCCA 442 the Court (Basten JA, Ward JA and Young AJA agreeing) considered this question more fully and concluded that the power to refer also depends on the satisfaction of the Proper Officer. If the question is answered in the affirmative the matter must be referred for further assessment. If it is not the matter cannot be referred.
The Medical Assessment Guidelines address the procedures for that referral to the Proper Officer. Clauses 14.3 and 14.4 provide that when an application is made for a further medical assessment, an officer of the Authority, described as the Proper Officer, is to conduct what is described as an Allocation Review to determine whether the matter is suitable for referral for further assessment.
Clauses 14.5 to 14.8 purport to govern the Proper Officer's determination of whether a matter must be referred for further assessment. They provide:
"14.5 When determining whether a matter should be referred for further assessment under s 62(1)(a) whilst conducting an Allocation Review, the Proper Officer shall have regard to:
14.5.1 the application and any reply;
14.5.2 any other applications and replies and/or MAS certificates on this medical dispute or any other medical disputes at MAS in relation to the same claimant, not limited to the same matter, after the parties have been provided with a copy of these documents; and
14.5.3 the objects of the Act and the objects of MAS.
14.6 For the purposes of s 62(1A) the word 'material' includes that it is relevant and capable of altering the outcome of a dispute about:
14.6.1 reasonable and necessary treatment, from 'not reasonable and necessary' to 'reasonable and necessary' or vice versa;
14.6.2 related treatment, from 'not related' to 'related' or vice versa; or
14.6.3 permanent impairment, from 'not greater than 10 per cent whole person impairment' to 'greater than 10 per cent whole person impairment' or vice-versa.
14.7 If the Proper Officer is not satisfied that the deterioration of the injury or the additional relevant information about the injury would have a material effect on the outcome of the application, the Proper Officer may dismiss the application.
14.8 The Proper Officer is to provide the parties with brief written reasons for the decision at the same time as, or as part of the notification to the parties, of the outcome of the Allocation Review as required by clause 9.2."
It should be noted that cl 14.7 misstates the question about which the Proper Officer must be satisfied and in the absence of which there can be no referral for further medical assessment. Section 62(1A) requires that the deterioration or additional information "be capable of having a material effect on the outcome of the previous assessment". Clause 14.7 proposes a different and more stringent standard, namely that it "would have a material effect on the outcome of the application". That difference is not significant in this case because, as is apparent from her reasons set out below, the Acting Proper Officer correctly identified the question to be as formulated in s 62(1A).
On 17 April 2012 the Acting Proper Officer advised QBE that its application would not be referred for further assessment. The following reasons were set out in that letter:
"I have considered the application for further assessment, the reply and all supporting documentation submitted in this matter.
I am not satisfied that the additional information is 'additional relevant information' or that it is such as to be capable of having a material effect on the outcome of the previous assessment as required by s 62(1A) of the Motor Accidents Compensation Act 1999. I have therefore determined that the application shall not be referred for further assessment.
The applicant seeks to rely on the report of Dr Akkerman as evidence that the claimant's condition is significantly improved. I note that in his previous report dated 17 December 2010, Dr Akkerman assessed the claimant as being Median Class Value 2, with an Aggregate Score of 12, and a whole person impairment of 6%. This report was considered by Assessor Kossoff in her previous determination and the Assessor came to a different conclusion.
In terms of assessment, Dr Akkerman's 2010 report does not differ significantly from his most recent report which assesses the claimant as being Median Class Value 2, with an Aggregate Score of 10, and a whole person impairment of 5 per cent. The issue of causation was considered by Assessor Kossoff and was addressed in her previous determination. Whilst Dr Akkerman comes to a different conclusion in his most recent report, this is not 'additional relevant information' as it is an issue that has previously been canvassed and considered by the Assessor.
..."
The grounds of the application for judicial review before the primary judge
QBE brought proceedings for relief in the nature of certiorari and mandamus with respect to the acting Proper Officer's decision. Four grounds were relied on, described generally as involving jurisdictional errors and/or errors of law on the face of the record or a constructive failure to exercise the decision-maker's power: primary judge's reasons at [7].
The first was that the Acting Proper Officer's conclusion that the information relied upon was not "additional relevant information" was not reasonably open on the material before her so as to demonstrate that she had "misconstrued or misunderstood her powers". That ground asserted legal error on the basis that the requirements of s 62(1A) had been misconstrued and as a result not addressed. That was also said to have involved jurisdictional error because there had been a constructive failure to exercise jurisdiction. As is mentioned earlier, if a decision-maker mistakes the proper construction of the statute and as a result does not address the correct question or misunderstands the nature of the opinion to be formed there is no real exercise of jurisdiction so that in law the jurisdiction is constructively unexercised: see Ex parte Hebburn Ltd at 420; Yusuf at [41]; Re Patterson; Ex parte Taylor [2001] HCA 51; 207 CLR 391 at [193]; Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26; 77 ALJR 1088 at [24], [25], [32] and [88]; and Goodwin v Commissioner of Police [2012] NSWCA 379 at [19]-[20].
In this context the distinction between jurisdictional error and error of law on the face of the record is important for the reasons referred to by Basten JA in Allianz Australia Insurance Ltd v Kerr [2012] NSWCA 13 at [14]-[17]. The distinction was maintained by the High Court in Craig v State of South Australia [1995] HCA 58; 184 CLR 163 notwithstanding that there are often difficulties in distinguishing between the two types of error: Kirk v Industrial Court of New South Wales [2010] HCA 1; 239 CLR 531 at [66]-[73]. It remains important because whilst jurisdictional error may be established by any admissible evidence relevant for that purpose, relief based upon an error of law within jurisdiction must identify the error as appearing "on the face of the record".
The second ground was that the Acting Proper Officer took into account as an irrelevant consideration the 2010 report of Dr Akkerman, which was not part of QBE's application. That error was said to be apparent in her reasons. The third ground relied upon was that the Acting Proper Officer had proceeded on the basis that the question whether Mr Henderson's alcohol abuse and secondary major depression were caused by the motor accident had been considered and determined by Dr Kossoff so that QBE's application could not succeed. That was said to have involved a misunderstanding of the terms of s 62 and a failure of the Acting Proper Officer to make her own assessment and determination as to whether the additional information was capable of having a material effect. Her proceeding on this basis was also said to have involved a constructive failure to exercise jurisdiction. The fourth and final ground was that the Acting Proper Officer failed to give sufficient reasons for her decision.
As I have already observed, none of these grounds was that the fact that there was additional information which was capable of having a material effect on the outcome of the previous assessment was a "jurisdictional fact", the existence of which was to be established objectively and ultimately to be determined not by a finding of the decision-maker, but rather by the finding of a court exercising the supervisory jurisdiction: see D'Amore v Independent Commission Against Corruption [2013] NSWCA 187 at [204] (Basten JA). A jurisdictional fact in that strict sense is different from a condition or criterion of jurisdiction which is the existence of a state of satisfaction or opinion of the decision-maker about a matter: see, for example, Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; 240 CLR 611 at [23], [102].
The decision of the primary judge
The primary judge focused upon the first of the grounds relied upon by QBE. He did not address the fourth and rejected the second: [29]-[31]. In the course of dealing with the first ground his Honour rejected the Acting Proper Officer's reasoning to the extent that it proceeded on the basis that "the mere fact that causation was considered by the medical assessor means that there can be no additional relevant information which deals with causation": [30].
The first ground relied upon by QBE centred upon the question which the Acting Proper Officer was required to address under s 62(1A). The primary judge formulated the questions which he considered were required to be addressed at [16] in the following terms:
"There are then three questions which need to be considered by the Proper Officer in reaching a determination as to whether or not to refer again:
(1) Is the information proffered by the claimant or insurer relevant information?
(2) If so, is it "additional" relevant information?
(3) If it is additional relevant information, is it information that is capable of having a material effect on the outcome of the previous assessment?"
Consistently with the language of s 62(1A), the reference by the primary judge to the "information proffered by the claimant or insurer" must be understood as being to the "additional relevant information" which was specified by QBE as that relied on to justify the further referral. That information had to be stated in QBE's application and was to be identified by a reasonable reading of its terms. That made it necessary first to consider what information the application showed, on a reasonable understanding of its terms, was relied upon. The primary judge did not approach the matter in that way.
It would seem that in the course of argument the parties accepted that the critical question was whether "Dr Akkerman's third report" was or contained additional relevant information. That acceptance assumed that some or all of that information was the information specified in QBE's application. Proceeding on the basis that that was the relevant question, the primary judge reasoned that it was then necessary for the Acting Proper Officer to have had regard to what was before Dr Kossoff, by way of earlier medical reports, "in order to determine whether the report now relied on meets the description of additional relevant information": [31].
The primary judge then undertook that exercise. Focusing on Mr Henderson's underlying symptoms and other information upon which Dr Akkerman's opinions were based, the primary judge continued at [33]:
"... the focus for determining whether Dr Akkerman's third report contains additional relevant information should be on comparing the symptoms which Dr Akkerman records were described to him in more recent times to the symptoms which were described to him for the purposes of his first and second reports."
His Honour undertook that exercise by comparing the contents of Dr Akkerman's three reports and, having done so, identified at [34] five respects in which Mr Henderson's reported symptoms as recorded in the third report were different from those considered in the earlier reports. Those symptoms were:
"(4) No longer gets upset when he thinks about the accident;
(5) No avoidance;
(6) Occasional flashbacks;
(7) No hyper vigilence;
(8) No nightmares;"
On the basis of this analysis the primary judge considered that Dr Akkerman's third report did contain "additional relevant information", namely, the information his Honour summarised at [35]:
"... the fact that Mr Henderson no longer gets upset when he thinks about the accident, does not have nightmares, does not utilise avoidance, is no longer hyper vigilant, has only occasional flashbacks".
The primary judge concluded at [36] that the assessor was "required to treat the third Akkerman report as additional relevant information" and as a result to "proceed to consider whether the information is of a character that is capable of having a material effect on the conclusion that the claimant suffers from PTSD as a result of the motor vehicle accident". The primary judge did not go on to consider the question of capacity which the Acting Proper Officer had not addressed in relation to that additional information. Having set aside her decision to refuse to refer Mr Henderson for a further medical assessment, his Honour remitted QBE's application under s 62 for further determination.
The arguments on appeal
Two arguments were made on behalf of Mr Henderson in this Court. They are referred to at the commencement of these reasons. It was submitted that the primary judge had proceeded on the basis that the questions for the Acting Proper Officer involved jurisdictional facts which were to be determined objectively and by the reviewing Court deciding the matter for itself; as was the case in Enfield City Corporation v Development Assessment Commission [2000] HCA 5; 199 CLR 135 and Timbarra Protection Coalition Inc v Ross Mining NL [1999] NSWCA 8; 46 NSWLR 55. It was also argued that on an appeal by way of rehearing under s 75A of the Supreme Court Act, from a decision in exercise of the Court's supervisory jurisdiction, this Court could determine not only the question addressed by the reviewing Court but also whether any additional relevant information was "capable of materially affecting the outcome of an assessment". The second argument made on Mr Henderson's behalf was that the primary judge had erred in concluding that the Acting Proper Officer had failed correctly to identify and address the information relied upon by QBE or misconstrued and misunderstood her task.
In response, QBE submitted that the primary judge was to be taken to have concluded, correctly, that the Acting Proper Officer had failed to address the correct question, with the result that there had been a constructive failure to exercise her decision-making power. It also submitted that the matters to which s 62(1A) is directed are not jurisdictional facts in the strict sense, that this had not been a ground of review relied upon before the primary judge and that for these reasons Mr Henderson's primary argument should be rejected. QBE relied upon the decision of this Court in Rodger v De Gelder as deciding that the existence of the matters with which s 62(1A) is concerned is to be determined by reference to the subjective satisfaction of the Acting Proper Officer. It conceded that it remained able to be reviewed on limited grounds. However, no such challenge was made in this case.
Disposition of the appeal
I have already indicated that Mr Henderson's first argument must be rejected. The primary judge did not decide the application for review on the basis that those matters described a state of affairs that had to be determined objectively; and the issue was decided by this Court in Rodger v De Gelder, albeit briefly. This makes it necessary to consider Mr Henderson's fallback argument.
The primary judge identified the additional relevant information as the symptoms which were advised to Dr Akkerman and recorded in his third report which had not been described to him and recorded in either of his earlier reports. The question raised is whether, as the primary judge is taken to have held, the Acting Proper Officer erred in failing to identify and address that information as the ground of QBE's application for a further medical assessment. From the perspective of the Acting Proper Officer, that requires attention to the information specified by QBE in its application.
That information has then to be compared with the information which was considered by the Acting Proper Officer as the ground on which the application was made.
Addressing the latter matter first, the Officer in her reasons identifies two pieces of information. The first is Dr Akkerman's whole person impairment assessment in his third report as being of 5 per cent. The second is Dr Akkerman's opinion that Mr Henderson's ongoing major depression and alcohol abuse was not caused by and was unrelated to the accident. It is relevant to observe that each of these matters was identified in QBE's Amended Summons as being the "information" which it was said the Proper Officer erred in failing to consider. By paragraph 6(b) of the grounds of review that information was described as follows:
"(1) An expert medical opinion from a psychiatrist, Dr Klaas Akkerman, that the claimant/first defendant once did, but now no longer suffers from Post-Traumatic Stress Disorder (PTSD) caused by the motor vehicle accident;
(2) The claimant has recovered from his PTSD;
(3) The claimant's remaining psychiatric conditions, namely, his alcohol abuse and secondary Major Depression, were constitutional and were not caused by the motor vehicle accident."
It is necessary to consider QBE's application submitted to the Authority under s 62(1)(a). The approved form does not require that the applicant identify precisely the additional relevant information about the injury. In that respect the form is deficient. That information had to relate to Mr Henderson's injuries - the posttraumatic stress disorder with associated depressive and anxiety symptoms. The approved form did, however, require QBE to set out the reasons why the information which constituted the ground for its application was capable of altering the outcome of the dispute as to Mr Henderson's permanent impairment. In response to that request, having observed that Dr Akkerman "considered that the claimant had significantly improved", QBE said "(g)iven the views as to causation and the further PIRS Assessment, the insurer contends that the report of Dr Akkerman is likely to alter the outcome of the dispute". That statement is reasonably to be understood as doing two things. First, it identifies the information relied on as being Dr Akkerman's revised view as to causation and his further PIRS Assessment. Secondly, it asserts the fact of those revised views was likely to alter the outcome of the dispute. In doing so it addresses the elements of s 62(1A).
Those reasons of QBE do not identify as the ground of the application information that Mr Henderson had different current symptoms from those upon which the first medical assessment was based. The statement that Dr Akkerman "considered that the claimant had significantly improved" did not refer to or describe those symptoms. Nor was information concerning Mr Henderson's revised symptoms identified in Dr Akkerman's third report. That report sets out Mr Henderson's history and current symptoms. It records Dr Akkerman's revised opinions and contains the following conclusion as to why his assessment differs from the other medical evidence:
"My evidence is different from the other doctors in that he no longer suffers from posttraumatic stress disorder.
As to why my assessment is preferable, I have seen Mr Henderson three times. My assessment is the most recent one. He has improved over time."
Dr Akkerman's revised opinion was said to follow from a consideration of "different" evidence and makes the point that Mr Henderson has "improved over time". However, neither of those statements is or identifies the kind of information to which s 62 is directed; or the information which the primary judge found was additional. Nor did it enable the reader to identify the respects in which Dr Akkerman's "evidence" was different or the underlying reasons justifying the conclusion that he had "improved over time".
A fair reading of QBE's application was, as the Acting Proper Officer considered, that the information said to constitute the relevant ground was Dr Akkerman's revised whole person impairment assessment and his revised opinion that Mr Henderson's ongoing major depression and alcohol abuse was not caused by the accident. The Acting Proper Officer addressed that information and considered that it was not additional relevant information. The primary judge erred in concluding that there was any relevant error of law on her part in doing so. The officer was not required to do other than address the information specified by QBE in the application. In particular, she was not required to undertake the sort of exercise undertaken by the primary judge in an attempt to discover whether there was any additional information on which the revised medical opinions were or could have been based.
What the circumstances of this case emphasise is the need, in relation to such applications, to specify clearly the additional information about the injury which is said to be capable of having a material effect on the outcome of any earlier assessment. In some cases the fact of a medical opinion may be, or be part of, the relevant additional information. In the present case, however, the information which was capable of having a material effect on the outcome of the earlier assessment was not the fact that the revised opinions were held but that the underlying symptoms or assumptions by reference to which those opinions were expressed were said to have changed.
Conclusion
The appeal should be allowed. The orders and declaration made by Rein J should be set aside. The respondent's amended summons should be dismissed and QBE should pay the costs of the proceedings before the primary judge and of this appeal.
TOBIAS AJA: I have had the benefit of reading in draft the judgments of the President and Meagher JA. Subject to one matter, I do not consider that those judgments are inconsistent and therefore I agree with the reasons expressed in each of them for allowing the appeal.
However, like the President but unlike Meagher JA, I consider that Mr Henderson's first argument was in issue on the appeal and required resolution in the manner articulated by the President. I therefore agree with the orders her Honour proposes.
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Decision last updated: 28 January 2014
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