IAG Limited t/a NRMA Insurance v Xie

[2020] NSWSC 1112

Supreme Court

New South Wales

Medium Neutral Citation:

IAG Limited t/as NRMA Insurance v Xie [2020] NSWSC 1112

Hearing dates:

8 November 2019

Date of orders:

21 August 2020

Decision date:

21 August 2020

Jurisdiction:

Common Law

Before:

Campbell J

Decision:

(1) Summons dismissed;

(2) The plaintiff to pay the first defendants costs.

Catchwords:

ADMINISTRATIVE LAW – judicial review – Motor Accidents Compensation Act 1999 (NSW) – application for exemption from CARS assessment – allegations of false and misleading statements in a material particular relating to injury, loss and damage – where question of complex quantum issues was raised – whether assessor posed the wrong question – whether assessor misconstrued the scope and nature of his power – whether assessor took account of irrelevant considerations – where question of suitability may involve considerations of capacity

Legislation Cited:

Motor Accidents Compensation Act1999 (NSW) ss 69, 92, 92(1), 92(1)(b), 98, 106, 108

Supreme Court Act 1970 (NSW) s 69

Cases Cited:

AAI Limited v Feng [2019] NSWSC 535

Dranichnikov v Minister for Immigration and Multicultural Affairs & Indigenous Affairs (2003) 77 ALJR 1088; [2003] HCA 26

IAG Limited t/as NMRA Insurance v Abdelrazek [2020] NSWSC 773

IAG Ltd t/as NRMA Insurance v Abiad [2018] NSWSC 1422; 85 MVR 371

Insurance Australia Ltd t/as NRMA Insurance v Banos [2013] NSWSC 1519; 65 MVR 312

IAG Ltd t/as NRMA Insurance v Chahoud [2019] NSWSC 767; 89 MVR 87

IAG Limited t/as NRMA Insurance v Khaled & Ors [2019] NSWSC 320

IAG Limited t/as NRMA Insurance v Qianxia Lou [2019] NSWSC 382; 88 MVR 57

IAG Limited t/as NRMA Insurance v Qin [2020] NSWSC 1025

Insurance Australia Ltd t/as NRMA Insurance v Taylor [2017] NSWSC 507; 80 MVR 190

Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259; [1996] HCA 6

Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323; [2001] HCA 30

QBE v Miller [2013] NSWCA 442; (2013) 67 MVR 322

Voth v Manildra Flour Mills Pty Ltd (1990) 171 CLR 538; [1990] HCA 55

Texts Cited:

Motor Accidents Authority, “Claims Assessment Guidelines”, 1 May 2014, Chs 8, 8.11, 8.11.6, Chs 14, cll 14.16.5, 14.16.11

Category:

Principal judgment

Parties:

IAG Limited t/as NRMA Insurance (Plaintiff)
Yanling. Xie (First Defendant)
State Insurance Regulatory Authority of New South Wales (Second Defendant)
Paul Curtis (Third Defendant)

Representation:

Counsel:
M. Robinson SC with J Lucy (Plaintiff)
E.G. Romaniuk SC with J Gumbert (Defendant)

Solicitors:
Hall & Wilcox (Plaintiff)
Crown Solicitors (Defendant)

File Number(s):

2019/178123

Judgment

1. By summons filed 7 June 2019, the plaintiff, IAG Limited (“the insurer”), challenges the validity of a decision of a claims assessor, Mr Paul Curtis, of the Motor Accidents Claims and Resolution Service (“CARS”) established within the State Insurance Regulatory Authority of New South Wales (“SIRA”) by s 98 Motor Accidents Compensation Act 1999 (NSW) (“the Act”). The claims assessor refused the insurer’s application for exemption from claims assessment under Ch 4 of the Act to permit the claim to be determined in District Court proceedings. The insurer contends that in making the decision the claims assessor fell into jurisdictional error in various ways or constructively failed to exercise his statutory power in granting the exemption or made an error of law on the face of the record.

2. The insurer invokes the Court’s supervisory jurisdiction under s 69 Supreme Court Act 1970 (NSW) and seeks an order in the nature of certiorari setting aside the decision and an order in the nature of mandamus remitting the matter to SIRA for the reallocation of the claim to a different claims assessor for the re-determination of the question of whether the claim is not suitable for assessment under Pt 4.4 of the Act.

3. The first defendant, Ms Xie who is the claimant for motor accident damages, contests the insurer’s entitlement to the relief sought. SIRA is the second defendant and the claims assessor is the third. The Crown Solicitors Office has filled a submitted appearance on behalf of both of the second and third defendants.

Background

4. Ms Xie was injured in a motor accident on 1 June 2015. She lodged a claim for motor accident damages for personal injury against the insurer with CARS pursuant to Pt 4.4 of the Act. During the claims assessment the insurer made an application under s 92(1)(b) of the Act seeking an exemption from assessment of Ms Xie’s claim by CARS.

5. The insurer argued that the claim was “not suitable for assessment” under Pt 4.4 because Ms Xie had made false or misleading statements about the injuries, loss and damage she had sustained as a result of the motor accident and the claim involved complex quantum issues. Ms Xie opposed the application.

6. On 23 April 2019 the claims assessor refused the application for exemption on the basis that he was not satisfied that the claim was not suitable for assessment by CARS.

Relevant provisions

7. Section 90 of the Act provides that a claim may be referred to the authority by the claimant or the insurer under Pt 4.4. Section 108 of the Act specifies that court proceedings in respect of a claim may only be commenced where an exemption certificate has been issued by the claims assessor in accordance with s 92 or where a claims assessment certificate has been issued.

8. Section 92(1) is in the following terms:

(1) A claim is exempt from assessment under this Part if:

(a) the claim is of a kind that is exempt under Motor Accidents Claims Assessment Guidelines or the regulations, or

(b) a claims assessor has made a preliminary assessment of the claim and has determined (with the approval of the Principal Claims Assessor) that it is not suitable for assessment under this Part.

The present case is concerned with s 92(1)(b), which provides for a discretionary exemption.

9. By sections 69 and 106 of the Act the procedures for assessments of claims are governed by the Motor Accidents Claims Assessment Guidelines (“Guidelines”). Relevantly cl 14.16 of the Guidelines sets out a non-exhaustive list of relevant considerations for determining whether a claim is not suitable for assessment and is expressed in the following terms:

14.16 In determining whether a claim is not suitable for assessment, an Assessor and the [Principal Claims Assessor] shall have regard to the circumstances of the claim as at the time of consideration of the claim. This may include, but is not limited to:

14.16.1 whether the claim is exempt under section 92(1)(a) because the claim involves one or more of the circumstances set out in clause 8.11;

14.16.2   the heads of damage claimed by the claimant and the extent of any agreement by the insurer as to the entitlement to those heads of damage;

14.16.3   whether the claim involves complex legal issues;

14.16.4    whether the claim involves complex factual issues;

14.16.5    whether the claim involves complex issues of quantum or complex issues in the assessment of the amount of the claim including but not limited to major or catastrophic, spinal or brain injury claims;

14.16.6    whether the claimant has been medically assessed and is entitled to non-economic loss pursuant to section 131 and the claim involves other issues of complexity;

14.16.7    whether the claim involves issues of liability including issues of contributory negligence, fault and/or causation;

14.16.8    (omitted);

14.16.9    whether the claimant or a witness, considered by the Assessor to be a material witness, resides outside New South Wales;

14.16.10    whether the claimant or insurer seeks to proceed against one or more non-CTP parties; and/or

14.16.11    whether the insurer makes an allegation that a person has made a false or misleading statement in a material particular in relation to the injuries, loss or damage sustained by the claimant in the accident giving rise to the claim.

(Note: If an insurer makes an allegation of ‘fraud’ in terms of the circumstances of the accident, the matter will be exempt under section 92(1)(a) and clause 8.11.6. If an insurer makes an allegation that a person has made a false or misleading statement in a material particular in relation to the injuries, loss or damage sustained by the claimant in the accident, the insurer may be required to provide particulars in writing of the general nature of any such allegation under clause 17.13, and an Assessor may then consider whether a matter is not suitable for assessment under clause 14.11 to 14.16, particularly in light of clause 14.16.11.)

10. As is apparent from the note at the foot of cl 14.16.11 and from some of the decisions in this Court discussed below concerning the legal limits of the s 92(1)(b) discretionary power, it may be pertinent to contrast the contents of Guideline 14.16 with Guideline 8.11.6 which is in the following terms:

8.11 For the purpose of s 92(1)(a), the [Principal Claims Assessor] shall issue a certificate of exemption when, as at the time of consideration of the application, and after a preliminary assessment of the claim, the PCA is satisfied that the claim involves one or more the following circumstances:

…

8.11.6 the insurer alleges that the claim is a fraudulent claim in terms of the circumstances of the accident giving rise to the claim.

(Note: for example where it is alleged that the accident may have been staged or where a person claiming to have been a passenger of the vehicle is alleged to have been the driver of the vehicle.)

11. The question posed by s 92(1)(b) is whether the claim is not suitable for assessment under Pt 4.4 of the Act. The insurer’s contention that the claim was not suitable turned on the considerations identified in cll 14.16.11 and 14.16.5.

The decision of the claims assessor

12. In his decision of 23 April 2019 (CB p.45 – 56) the claims assessor rejected the insurer’s argument that Ms Xie’s claim was not suitable for a CARS assessment. The reasons for his decision are as follows:

65. My task is to determine whether the claim brought by Ms Xie is not suitable for assessment as submitted on behalf of the Insurer.

66. A primary question will be whether both parties can be afforded a fair hearing at assessment conference “which is in a practical sense fair having regard to the nature of the allegation raised” (Insurance Australia Limited t/as NRMA Insurance Limited v Milton [2016] NSWSC 1521).

67. This is a claim in which Ms Xie’s credit will be called into question and there will undoubtedly be questions directed to Ms Xie in that regard. However, issues of credit and close questioning of a Claimant and witnesses by an Insurer’s representative are common place at CARS Assessment Conferences.

68. Indeed I have been called upon on numerous occasions to deal with issues of credit in relation to previously non-disclosed medical histories and other factual disputes which were challenged with close questioning on behalf of an Insurer.

69. I am not satisfied that in a claim such as this that the questioning of the Claimant during an assessment conference would be materially different from the questions put in cross-examination in a Court or that these issues could not be adequately explored at an assessment conference.

70. Arrangements can be made for medical experts to give oral testimony at an assessment conference, either in person or by telephone. It is not suggested that any of the doctors nominated by the Insurer required for questioning would refuse to co-operate with the CARS process such as it would be necessary to subpoena them for attendance.

…

73. I would also make the observation that it is fast approaching the fourth anniversary of the motor vehicle accident and I would have expected the Insurer to have conducted whatever investigations it considered necessary by now concerning Ms Xie’s employment with “Uniting Residential and Aged Healthcare” as an aged care worker.

74. If necessary oral testimony either in person or by way of telephone conference can be arranged for a CARS assessment conference.

75. As to the Insurer’s stated intention to question the Claimant’s sister (Suzanne Chiu) and her daughter-in-law (Yan Chen) this can also be accommodated within the CARS process. Indeed it is common place for such witnesses to be available to give oral testimony in relation to their signed statements, when and if required.

76. The Insurer’s submission that it would wish to issue various subpoena for the production of records from treatment providers, the employer and the Claimant’s accountant/tax agent can likewise be accommodated within the CARS process by the issue of Section 100 Directions, again a matter of common practice within the CARS process.

77. Whilst the Insurer argues that exemption would enable cross-examination of Ms Xie under oath with the inference that this would bring with it serious consequences for false evidence, it is worth noting that Section 117 MAC Act provides that a person who makes a statement knowing that it is false or misleading in a material particular is guilty of an offence which can be subject to a maximum penalty of 50 penalty units or imprisonment for 12 months, or both.

78. Invariably Claimants are issued with such a warning by me at the commencement of an assessment conference, before oral testimony is taken.

79. The issues raised on behalf of the Insurer in relation to the circumstances of completion of the claim form and the possibility of questioning Ms Xie’s previous solicitor can also be accommodated in the CARS process.

80. In summary, I am satisfied that the parties can have a fair hearing in an assessment conference.

81. It follows that I am not satisfied that Ms Xie’s claim is not suitable for assessment.

Submissions of the parties

13. Mr M A Robinson SC, who appeared with Dr J Lucy for the insurer, argued that the refusal of the claims assessor to grant the exemption was vitiated by jurisdictional error, error of law on the face of the record or alternatively that the assessor constructively failed to exercise his statutory power in making the decision. He submitted that the assessor misunderstood or misconstrued the scope and nature of his power and incorrectly applied that power to the question before him. He argued that the claims assessor misdirected himself by asking himself whether CARS could deal with the matter as opposed to whether it was not suitable for assessment.

14. Mr Robinson further argued that the claims assessor misconstrued the scope and nature of his power by failing to exercise his power in accordance with the statutory scheme. He argued that ss 92(1)(b) and 106 of the Act together with cll 14.16.11 and 8.11.6 evidence an intention that in appropriate cases, such as where there are allegations that the claimant has made false or misleading statements claims are to be tested in a courtroom and exposed to forensic examination. He submitted that the assessor’s disregard for the advantages of the curial process meant that he did not correctly exercise his function in accordance with the Act. He also argued that the claims assessor considered matters which were irrelevant to the determination of the suitability of the claim for assessment, including that: the claimant had incorporated significant documentation in the CARS Form 2A; he expected that the insurer would have conducted investigations into the claimant’s employment; and that it was the claims assessor’s practice to issue a warning to witnesses before oral testimony was taken.

15. Mr Robinson submitted that the assessor misdirected himself by having regard to future possibilities or circumstances, such as whether the parties or witnesses would cooperate with the process, as opposed to considering the circumstances at the time of the application. He submitted that the assessor failed to respond to the insurer’s substantial, clearly articulated arguments relying upon established facts, including that the insurer’s exemption application was based on the materiality of the multiple allegations of false and misleading statements, the advantages of the curial process and the complexity of the issues concerning quantum.

16. Mr E Romaniuk SC of counsel, who appeared with Ms J Gumbert for Ms Xie, argued that the consideration of the suitability of a claim for assessment was not a more appropriate forum test but rather that s 92(1)(b) required the assessor to be affirmatively satisfied that CARS is not a suitable forum for the particular claim before an exemption could be made. He submitted that the claims assessor had assessed and answered this question correctly. Ultimately, Mr Romaniuk argued that the insurer’s argument was founded on a preference for court proceedings to ventilate the claim as opposed to whether CARS was a suitable forum.

17. Mr Romaniuk argued, by provision of a comparison table that the assessor dealt with each of the arguments advanced by the insurer. He further argued that the insurer’s focus on specific words of the assessor’s decision fell afoul of the beneficial reading principle referred to in IAG Ltd t/as NRMA Insurance v Chahoud [2019] NSWSC 767; 89 MVR 87. He submitted that when the decision is read as a whole it is evident that the assessor applied the correct test and that questions of whether a fair hearing could be had in CARS were directly relevant to whether CARS was not the suitable forum.

18. Mr Romaniuk submitted that s 92(1)(b) required the decision maker to reach a state of satisfaction and that in such cases, according to QBE v Miller [2013] NSWCA 442; (2013) 67 MVR 322 at [36], judicial review is “limited to determining whether the Proper Officer’s opinion has been properly formed according to law”.

General applicable principles of administrative law

19. Before considering the decisions pertaining specifically to s 92(1)(b) I should say something of the applicable law with respect to judicial review. The principles of judicial review of tribunal decisions are established by Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323; [2001] HCA 30 at [82] in the following terms:

It is necessary, however, to understand what is meant by “jurisdictional error” under the general law and the consequences that follow from a decision-maker making such an error. As was said in Craig v South Australia [(1995) 184 CLR 163; [1995] HCA 58 at 179], if an administrative tribunal (like the Tribunal)

“falls into an error of law which causes it to identify a wrong issue, to ask itself a wrong question, to ignore relevant material, to rely on irrelevant material or, at lease in some circumstances, to make an erroneous finding or to reach a mistaken conclusion, and the tribunal’s exercise or purported exercise of power is thereby affected, it exceeds its authority or powers. Such an error of law is jurisdictional error which will invalidate any order or decision of the tribunal which reflects it.”

20. In Dranichnikov v Minister for Immigration and Multicultural Affairs & Indigenous Affairs (2003) 77 ALJR 1088; [2003] HCA 26 Gummow and Callinan JJ said at [24]:

To fail to respond to a substantial, clearly articulated argument relying upon established facts was at least to fail to accord Mr Dranichnikov natural justice. A failure to accord natural justice did not provide a statutory basis for a review of a decision of the Tribunal.

21. It is always apposite to consider the beneficial construction principle. In Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259; [1996] HCA 6 at 272 Brennan CJ, Toohey, McHugh and Gummow JJ said that:

…the reasons of an administrative decision-maker are meant to inform and not to be scrutinised upon over-zealous judicial review by seeking to discern whether some inadequacy may be gleaned from the way in which the reasons are expressed.

Review of previous decisions concerning s 92(1(b) of the Act

22. I considered the proper exercise of the s 92(1)(b) discretion in Insurance Australia Ltd t/as NRMA Insurance v Banos [2013] NSWSC 1519; 65 MVR 312. I said that when deciding the statutory question in a case involving allegations that the claimant made false and misleading statements, the following non-exhaustive considerations are relevant (at [43]):

(a) the Act contemplates that the great majority of disputes will be resolved by the assessment process, and not in court;

(b) however, the consideration that s 92 provides for both mandatory exemptions and discretionary exemptions provides a clear legislative guidepost that appropriate cases should be “redirected” to the court system at an early time by way of preliminary determination;

(c) a primary question will be, having regard to the nature of the issue raised, whether both parties can be afforded a hearing (assessment conference) which is in a practical sense fair having regard to the nature of the allegation raised;

(d) a related question will be which mode of hearing will resolve the dispute more efficiently and effectively, bearing in mind the comparative limitations and advantages of an assessment conference on the one hand, and a court hearing on the other. Advantages of the latter may include a better opportunity for proper and fair cross-examination of witnesses whose credit is to be impugned and the greater availability of cross-examination of medical experts on the material which may call a claimant’s reliability into question;

(e) as it is clear the claimant’s credit will be called into question, a consideration of whether it is in the public interest that such an examination occur in open court;

(f) Finally, but by no means last, the consideration that it is not mandatory, whenever a credit issue is raised, to decide that the claim is not suitable for assessment under Pt 4.4.

23. In Insurance Australia Ltd t/as NRMA Insurance v Taylor [2017] NSWSC 507; 80 MVR 190 Davies J agreed with these matters and added these considerations (at [34]-[39]):

[34] First, it is of significance that all that is necessary for the Assessor’s discretion to be triggered with regard to an exemption on this ground is an allegation by the insurer. Subject to the requirement by an assessor to provide particulars pursuant to cl 17.13 of the Guidelines that is all that the insurer needs to do for the Assessor to be required to determine whether the claim is not suitable for assessment. Indeed, cl 17.13 when dealing with a requirement that a party give particulars in writing of the general nature of any such allegation, the clause adds “but not necessarily the evidence or proof of the same”.

…

[36] It can be reasonably inferred from the mandatory exemption in relation to a fraudulent claim that the absence of sworn compellable evidence with a right of cross-examination in the CARS process meant that neither truth nor fairness to the parties was likely to be achieved other than in a court hearing where, additionally, the rules of evidence apply. That is a relevant consideration where it is alleged a false or misleading statement has been made.

…

[39] Fourthly, in Tarabay [[2013] NSWSC 141; 62 MVR 537] Rothman J drew attention to some of the limitations on an assessment conference and on an assessor. His Honour said:

[36] It is necessary, at least briefly, to reiterate the nature of proceedings before an assessor. The proceedings are informal. By Chapter 15 (clause 15.4.2) the examination of parties and witnesses is usually by the Assessor and questions by other parties to witnesses may only be put as directed by the Assessor.

[37] Further, pursuant to Guideline 15.4.3 the Assessor may allow questioning of a witness by another party’s legal representative, but may make that questioning subject to any limitations determined by the Assessor.

[38] The Assessor questions, or may question, a party or witness to such extent as the Assessor thinks proper, but the Assessor cannot compel any party or witness to answer any question.

[39] If, in the last mentioned circumstance, a party fails to answer a question or a witness fails to answer a question, the Assessor can have regard to that failure in the determination of the assessment, unless the party has a reasonable excuse for that failure to answer: see Guideline clause 15.4.5.

…

[57] … The Assessor has no power to subpoena or require the attendance of any person. The Assessor has no power to require an answer to any question. The most that the Assessor is able to do, in dealing with an issue of that kind, is take into account a failure to answer a question in determining an assessment.

24. The considerations of Davies J at [36] were expanded further by Harrison J in IAG Ltd t/as NRMA Insurance v Abiad [2018] NSWSC 1422; 85 MVR 371 at [76], where his Honour said:

It is not the role of a claims assessor to second guess an insurer’s allegations that a claimant has made a false or misleading claim. Section 92(1)(b) and cl 14.16.11 implicitly recognise the fact that in an appropriate case an insurer’s claims ought to be tested in a courtroom and be exposed to the type of forensic examination that the assessment process, to some extent at least, cannot necessarily provide.

25. In IAG Limited t/as NRMA Insurance v Khaled & Ors [2019] NSWSC 320 Bellew J emphasised (at [27]):

[27] Bearing in mind the terms of section 92(1)(b) of the Act, the question that the Assessor was required to ask herself was whether the claim was not suitable for assessment in CARS. In accordance with general principles of statutory interpretation, the word “suitable” is to be given its natural and ordinary meaning. The Macquarie Dictionary defines the word “suitable” as meaning:

“Such as to suit; appropriate, fitting, becoming.”

[28] In my view, it is evident from the Assessor’s reasons that she did not turn her mind to the question whether the matter was not suitable for assessment in CARS. There is an obvious, and indeed material, difference between whether or not a matter can be dealt with in the CARS process (in the sense of being capable of being with in that way), and whether it is not suitable to be dealt with in that way. In that sense, capability is not the same as suitability. The terms of section 92(1)(b) required the Assessor to consider and focus upon the latter question. It is evident from the passages of her reasons to which I have referred that the Assessor failed in that regard and, in fact, concentrated on the former. In doing so, I am satisfied that the Assessor failed to ask herself the correct question and thus erred.

26. To like effect is the decision of Wilson J in IAG Limited t/as NRMA Insurance v Qianxia Lou [2019] NSWSC 382; 88 MVR 57 (at [23]):

… the frequency with which a particular type of issue is ventilated and dealt with in the CARS assessment process is irrelevant to determining whether a claim is “not suitable for assessment” under Part 4.4 of the MAC Act, that being the language used in s 92(1)(b), and the matter to be determined by the decision maker. It was not a question of whether the issues raised by the insurer were commonly dealt with, and thus could be dealt with, by assessment; the question was whether the issues made the matter not suitable for assessment within CARS.

27. In AAI Limited v Feng [2019] NSWSC 535 Adamson J addressed the question of whether the claims assessor had asked himself the wrong question by considering whether the claim was capable of being the subject of CARS assessment. Her Honour said (at [59]) “Although the ultimate question turns on suitability (or lack thereof), capacity will commonly, if not invariably, be a relevant factor in determining suitability”. Her Honour considered that the use of qualifying words such as “properly determined”, positioned after statements that CARS can or could determine the dispute indicated that the Assessor was addressing suitability rather than credibility.

28. Adamson J’s observations were applied by Harrison AsJ in IAG Limited t/as NRMA Insurance v Qin [2020] NSWSC 1025, where her Honour dealt with a claim challenged on substantially the same grounds as the present case. Applying the decision of Adamson J in Feng her Honour said (at [75]):

In my view, it is plain from the claims assessor’s reasons that he understood the overriding question to be one of suitability, not capacity. In determining whether the matter was not suitable for assessment at CARS, the claims assessor was entitled to compare the advantages of a CARS assessment and a court hearing, including the capacity for the issues raised in the insurer’s submissions to affect the capacity of CARS to provide the parties with a fair hearing. As such, his reasons reveal that he gave a proper, genuine and realistic consideration of the correct question.

29. In IAG Limited t/as NMRA Insurance v Abdelrazek [2020] NSWSC 773 Adamson J revisited s 92(1)(b). I will set out the relevant parts of her Honour’s reasoning below:

[38] The effect of the wording of s 92(1)(b) and cl 14.16 of the Guidelines is that, apart from the circumstances of the claim at the time of its consideration, it is a matter for the Assessor to decide what ought to be taken into account and what weight to give particular factors in determining whether the claim is suitable for assessment. As long as the legislation does not, by necessary implication, make any of the matters taken into account by the Assessor irrelevant, the Assessor will not be in error in taking them into account: Minister for Aboriginal Affairs v Peko-Wallsend Limited (1986) 162 CLR 24 at 38-41 (Mason J); [1986] HCA 40 (Peko-Wallsend).

General principles relating to the Assessor’s obligation to give reasons

[39] The Assessor’s reasons are not to be construed minutely or finely with an eye attuned to the perception of error: see the summary of authorities in Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 271-272 (Brennan CJ, Toohey, McHugh and Gummow JJ); [1996] HCA 6 (Liang).

…

[43] … it is plain from the Assessor’s reasons (and, in particular [6]) that he appreciated that the overriding question was one of suitability, not capacity, and understood the distinction between the two concepts. Indeed, it was common ground that the claim was one which fell within the discretionary exemption in s 92(1)(b) and not within the mandatory exemption in s 92(1)(a). In these circumstances, it must have been accepted that the claim could have been dealt with by a CARS assessment and would only not be dealt with in that way if it were exempted by the Assessor on discretionary grounds. In determining whether the matter was “not suitable” for CARS assessment, the Assessor was entitled to compare the relative advantages and disadvantages of a CARS assessment and a court hearing.

…

[47] It may be that the underlying policy behind Chapter 8 of the Guidelines is the assumption that such matters concerning liability are better determined in courtrooms than by CARS. However, this policy is expressed neither in the legislation or the Guidelines. Nor, even if this policy can be discerned, can it be extrapolated into assessments of damages to give rise to a general proposition that all matters which relate to the credibility of a claimant or a witness are better determined in a courtroom than in a CARS assessment.

[48] Indeed, it will be few cases (sic) where the credibility (in the sense of reliability) of a claimant is not sought to be tested, at least to some extent, by an Insurer, whether in the course of a CARS assessment or a court hearing. As Lord Pearce said in Onassis v Vergottis [1968] 2 Lloyd’s Rep 403 at 431:

“It is a truism, often used in accident cases, that with every day that passes the memory becomes fainter and the imagination becomes more active.”

[52] … Matters of credibility, though relevant under s 92(1)(b), are not determinative.

[57] … The Assessor was entitled to envisage the way in which the assessment would be conducted, on the basis of present information, when deciding whether to grant an exemption under s 92(1)(b) of the Act.

Determination

30. It may be said that the decision of Bellew J in Khaled, and Wilson J in Lou demonstrate that a focus upon the capacity of CARS to hear the matter, rather than, or at the expense of, the statutory test of whether the claim is not suitable for assessment under Pt 4.4 may invalidate the claims assessor’s s 92(1)(b) determination for jurisdictional error. It may be sufficient to say that the error is one of misdirection by identifying a wrong issue or asking the wrong question. At the same time, bearing in mind the applicability of the beneficial construction approach, provided it is clear that the claims assessor has formulated the question for determination as whether the claim is not suitable for assessment under Pt 4.4 of the Act, as Adamson J said in both Feng and Abdelrazek, the capacity of CARS to provide both parties with a fair hearing “will commonly, if not invariably, be a relevant factor in determining suitability” Feng at [59].

31. Likewise, as Wilson J said in Lou, focusing upon whether issues involving an allegation of false and misleading statements by a claimant “were commonly dealt with, and, thus could be dealt with” in an assessment, if that consideration was treated as decisive, may too indicate that the claims assessor had asked the wrong question; but not inevitably so. As Adamson J pointed out in Abdelrazek (at [57]), a claims assessor is “entitled to envisage the way in which the assessment would be conducted”. In making this assessment it is open to the claims assessor to draw on the past experience of CARS dealing with like cases in order to assess whether the case at hand could be dealt with fairly as a consideration relevant to, but not necessarily decisive of, whether the claim was not suitable for assessment.

32. The question posed by s 92(1)(b) requires the claims assessor to make a decision about the choice of forum for a particular claim in circumstances where claims generally are dealt with by assessment under Pt 4.4 of the Act. However, as Mr Romaniuk argued the statute does not create a “more appropriate forum test” or even a “clearly inappropriate forum” test: Voth v Manildra Flour Mills Pty Ltd (1990) 171 CLR 538; [1990] HCA 55. These concepts from private international law need not be introduced into this area of discourse. The statutory test focusses on the assessment process and whether it is not suitable for the claim at hand. The question is not whether court processes are more suitable for the particular claim. As I said in Banos an important part of the context in which the question arises is that “the Act contemplates that the great majority of disputes would be resolved by the assessment process and not in court”. To my mind this is why the syntax adopted by the legislative drafter casts the central concept in the negative, as not suitable.

33. As Adamson J said in Abdelrazek, provided the statutory test is borne firmly in mind, the decision as to what factors are relevant and what weight is to be given to each of them are matters for the judgment of the claims assessor.

34. Taking the claims assessor’s reasons as set out above at [12] as a whole and reading them fairly, I am positively satisfied that the claims assessor addressed the statutory test in express terms at the commencement and conclusion of the critical part of his reasoning. There is nothing to suggest he was diverted from this path by impermissible or extraneous considerations. He did not focus on capacity at the expense of suitability, nor did he elevate deductions drawn from his experience of the assessment process to a level where they can be seen to have trumped, or unseated, the statutory question of non-suitability.

35. I am not satisfied that the Claims Assessor failed to deal with the insurer’s argument under Guideline 14.16.5, which is concerned with the complexity of the issues going to the assessment of damages (see [9] above). Frankly it must seriously be doubted whether the issues sought to be raised by the insurer, as a matter of law, rose to this level. Again as demonstrated by Adamson J in Abdelrazek, issues of this type legitimately raised by the insurer were not self-evidently “complex”. The claims assessor in the course of his reasons by necessary implication assessed this factor at [69] – [76]. The insurer has not shown that the claims assessor’s approach fell outside the legal bounds of his power.

36. For these reasons I am not persuaded that the insurer has established jurisdictional error, a constructive failure to exercise jurisdiction, or error of law on the face of the record, so far as this last category may have been argued seperately.

37. My orders are:

1. Summons dismissed;

2. The plaintiff to pay the first defendants costs.

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Decision last updated: 21 August 2020