IAG Limited t/as NRMA Insurance v Alaskari

[2020] NSWSC 492

Supreme Court

New South Wales

Medium Neutral Citation:

IAG Limited t/as NRMA Insurance v Alaskari [2020] NSWSC 492

Hearing dates:

On the papers

Date of orders:

05 May 2020

Decision date:

05 May 2020

Jurisdiction:

Common Law

Before:

Harrison AsJ

Decision:

The Court declares that:

 

(1) The decision of the third defendant dated 29 July 2019 in CARS matter number 2018/12/3355 is vitiated by jurisdictional error.

 

The Court makes an order:

 

(2) In the nature of certiorari removing into the Court the decision of the claims assessor in CARS matter number 2018/12/3355 and quashing that decision.
The Court further orders that:

 

(3) CARS matter number 2018/12/3355 is remitted to the second defendant to be allocated to a different claims assessor for re-determination according to law.

 (4) There is no order as to costs.

Catchwords:

ADMINISTRATIVE LAW – Judicial review – State Insurance Regulatory Authority – Motor Accidents Compensation Act 1999 (NSW) s 92 – Whether the claims assessor failed to respond to the insurer’s substantial and clearly articulated arguments – Whether the claims assessor failed to set out lawful reasons

Legislation Cited:

Motor Accidents Compensation Act 1999 (NSW), s 92, 99
Supreme Court Act 1970 (NSW), s 69

Cases Cited:

Allianz Australia Insurance Limited v Francica (2012) 63 MVR 1
Frost v Kourouche (2014) 86 NSWLR 214
Wingfoot Australia Partners Pty Ltd v Kocak (2013) 252 CLR 480; 303 ALR 64
Zahed v JAG Limited t/as NRMA Insurance (2016) 75 MVR 1

Category:

Principal judgment

Parties:

IAG Limited t/as NRMA Insurance t/as NRMA Insurance (Plaintiff)
Anwar Kareem Alaskari (First Defendant)
State Insurance Regulatory Authority of New South Wales (Second Defendant).
The third defendant is Gary Victor Patterson, in his capacity as a claims assessor of SIRA (Third Defendant)

Representation:

Counsel:
J Lucy (Plaintiff)

  Solicitors:
Hall & Wilcox Lawyers (Plaintiff)
Submitting Appearance, CMC Lawyers (First Defendant)
Submitting Appearances, Crown Solicitor (Second & Third Defendants)

File Number(s):

2019/335704

Publication restriction:

Nil

Judgment

1. HER HONOUR: By summons filed 25 October 2019, the plaintiff seeks, firstly, an order in the nature of certiorari or, alternatively, a declaration setting aside or declaring invalid the decision of the third defendant in his capacity as a claims assessor of the State Insurance Regulatory Authority of New South Wales (“SIRA”), dated 29 July 2019, to refuse the plaintiff’s application for exemption, made purportedly pursuant to s 92(1)(b) of the Motor Accidents Compensation Act 1999 (NSW) (“the MAC Act”); secondly, an order in the nature of prohibition or, alternatively, an injunction preventing the defendants or any of their officers, servants or agents from acting on or taking any further steps in reliance on the decision; and thirdly, an order in the nature of mandamus remitting the matter to the second defendant for allocation to a different claims assessor to re-determine the plaintiff’s exemption application according to law.

2. The plaintiff is IAG Limited t/as NRMA Insurance (“the insurer”). The first defendant is Answar Kareem Alaskari. The second defendant is SIRA. The third defendant is Gary Victor Patterson in his capacity as a claims assessor of SIRA (“the claims assessor”). As the second and third defendants have all filed submitting appearances, there is no active contradictor. The insurer relied upon the affidavit of its solicitor, Diana Germanoski, dated 19 December 2019.

3. The insurer engaged in a non-curial personal injury dispute assessment process in SIRA. The process involves an assessment of a quantum of damages by a claims assessor, who is a person—usually a lawyer—who SIRA has determined to be “suitably qualified” and appointed to be a claims assessor pursuant to s 99 of the MAC Act. A claims assessor is empowered to assess claims and make decisions under ss 88-121 (Part 4.4) of the MAC Act, and also in accordance with ss 122-156 (Chapter 5).

Background

4. The first defendant was allegedly injured in a motor vehicle accident on 26 November 2015 in New South Wales (“the accident”). She lodged a claim for personal injury damages with SIRA against the insurer pursuant to Part 4.4 of the MAC Act.

5. In the course of the proceedings, when lodging its reply to the application for assessment of damages using Claims Assessment Resolution Service (“CARS”) Form 2R on 15 November 2018, the insurer made a formal application seeking an exemption of the first defendant’s personal injury damages claims from being assessed by SIRA pursuant to Part 4.4 and Chapter 5 of the MAC Act.

6. The insurer’s application was made pursuant to s 92(1)(b) of the MAC Act, and was opposed by the first defendant.

7. The application was brought on the basis that the insurer had made a formal and particularised allegation that the first defendant had made multiple false or misleading statements in relation to the injuries, loss or damage she alleged she sustained in the accident. The insurer relied upon cl 14.16.11 of the Claims Assessment Guidelines of SIRA (“the Guidelines”).

8. A first preliminary conference in respect of the insurer’s application was held on 17 December 2018 before the claims assessor. At that preliminary conference, the claims assessor noted that the insurer made “an application for discretionary exemption based upon an allegedly false and misleading claim.” He directed the first defendant to serve further expert reports and to provide submissions in reply to the insurer’s discretionary exemption application by 31 January 2019.

9. On 30 January 2019, the first defendant served brief submissions of three paragraphs on the discretionary exemption application and a supplementary statement in which she sought to explain the apparent discrepancies between her claims and the surveillance footage. She also served two further expert reports.

10. On 18 February 2019, the claims assessor conducted a second preliminary conference. He noted that the insurer did “not wish to make any further submissions” and also noted the parties’ agreement that the discretionary exemption application should be dealt with on the papers. He expressed the view that the claim was suitable for assessment.

11. On 29 July 2019, the claims assessor refused the insurer’s discretionary exemption application and provided reasons for his decision.

The law

12. Section 92 of the MAC Act reads:

“92 Claims exempt from assessment

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

…

(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.

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

The Guidelines

13. The Guidelines, issued under s 69(1) of the MAC Act and effective from 1 October 2018, outline the procedures to be followed by claims assessors in the assessment of claims under Part 4.4 of the Act.

14. Under the heading “Unsuitable for Assessment under section 92(1)(b)”, cls 14.11 and 14.16.11 of the Guidelines state:

“14.11 For the purpose of section 92(1)(b), an Assessor may, in dealing with an application for general assessment and following a preliminary assessment of the claim, determine that the claim is not suitable for assessment.

…

14.16   In determining whether a claim is not suitable for assessment, an Assessor and the PCA shall have regard to the circumstances of the claim as at the time of the preliminary determination including, but not limited to:

…

14.16.7   whether the claim involves complex issues of causation in respect of the relationship between the accident, the injuries sustained and disabilities arising from it including but not limited to multiple accidents or pre-existing injuries or medical conditions;

14.16.8   whether the insurer is deemed to have denied liability under section 81(3);

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.)” (emphasis added)

The insurer’s submissions

15. The insurer relied on its submissions that were before the claims assessor. It is not in dispute that these submissions were before the claims assessor.

16. Paragraph [4] of those submissions summarise the surveillance showing the claimant’s activities which the insurer claimed were inconsistent with her injuries. The insurer then contrasted those activities with what the first defendant has told doctors about and her injuries and disabilities.

17. At paragraph [5], the insurer submitted the following:

“The fact that the insurer alleges multiple false or misleading statements by the claimant renders the matter unsuitable for assessment at CARS.

Those statements are material and it is now appropriate that such issues be determined in court where witnesses are required to give sworn evidence, transcript is available, the court can make any necessary findings pursuant to section 117 (and if appropriate section 118) of the [MAC Act], the court can accommodate and is required as a matter of law to permit the insurer to press all of the above issues, and the court can make any necessary costs orders.

The insurer's capacity to question the claimant at CARS is subject to the discretion of the Assessor (Clause 15.4.2 of the Claims Assessment Guidelines); the claimant's evidence is not sworn and the insurer does not have the benefit of obtaining a transcript to assist with cross examination and submissions.

Having regard to the serious inconsistencies and allegations outlined above, the insurer submits that the credibility of the claimant's evidence as a whole must be in issue, and the insurer should be given the opportunity for the claimant's evidence to be tested under cross examination on oath.

The issue for the Assessor is not whether the insurer has proved the allegation of fraud on the part of the claimant but whether this matter is unsuitable for assessment at CARS: IAG Ltd t/as NRMA Insurance v Abiad [2018) NSWSC 1422 (Abiad), Allianz Australia Insurance Limited v Tarabay [2013] NSWSC 141 (Tarabay), and Insurance Australia Limited tlas NRMA Insurance v Banos [2013] NSWSC 1519 (Banos).

lt is irrelevant to the issue before the Assessor to enquire as to whether the claimant has resiled from her various allegations in relation to the severity of her injuries and claimed incapacities arising from the subject accident. The claimant cannot undo what is done.

ln Banos, Justice Campbell decided it was appropriate to set aside the decision not to exempt a matter and to remit the matter back to the PCA to reconsider the issue of discretionary exemption, after finding that the Assessor had fallen into error in deciding that the alleged statements were not false and misleading. The court held that:

‘The Assessor asked herself the wrong question and answered it. In doing so she has reached a concluded view as to the substance of the matter alleged, without having heard the parties in full on the issue. In so doing, the Assessor has issued a decision vitiated by Jurisdictional error and error of law on the face of the record: Craig v South Australia; Minister for Immigration and Multicultural Affairs v Yusuf (references to Craig and Yusuf omitted).’

It is submitted that the role of the Assessor is not to decide whether there are ‘false and misleading’ statements and in fact his Honour held that ‘a determination that a person has in fact made a false or misleading statement may only properly be made after... a full hearing on the merits...’

His Honour provided some further assistance at paragraph 43 of his decision where he set out what should be taken into account when deciding on what is an appropriate:

‘When deciding the statutory question in a case that turns upon whether a person has made a false and misleading statement, the following considerations are likely to be relevant. l do not mean to be exhaustive:

(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...’

The insurer also relies on the decision of Insurance Australia Ltd tlas NRMA Insurance v Taylor [2017] NSWSC 507. In that matter, Justice Davies expanded upon the previous guidance provided in Tarabay and Banos. The decision notes the serious nature of false or misleading statements and confirms that an allegation of a false or misleading statement could be as serious as a fraudulent claim (or as in the circumstances of Banos an alleged forged document). His Honour inferred from the mandatory exemption for allegations of fraud that the absence of ‘sworn compellable evidence with a right of cross examination’ under CARS proceedings meant that ‘neither truth nor fairness to the parties’ was likely to be achieved other than in a court hearing where the rules of evidence also applied. His Honour confirmed this was further emphasised by sections 117 and 118 of the [MAC Act] regarding false and fraudulent claims.

Relevantly, his Honour Justice Davies quoted Justice Rothman in Tarabay:

‘... 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 ...’

Justice Harrison expanded upon the above cases in the recent case of Ablad. Harrison J made the following finding at [76]:

‘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 claim ought to be tested in a courtroom and be exposed to the type of forensic examination that the assessment process, to some extent as least, cannot necessarily provided. Much has been written about this already and it is unnecessary to expand upon it here. The simple proposition is that a claims assessor’s task when an application has been made is to assess the allegation and whether it is not suitable for assessment under the relevant Part. The assessor's role is not to determine the truth or even the strength of the Insurer's allegations.” (emphasis added)

The issue for the Assessor is whether or not the claim is not suitable for assessment given that the insurer has made multiple allegations of false or misleading statements in a material particular.

When considering the question of suitability, it is respectfully submitted that the Assessor would ultimately grant the exemption given the multiple allegations themselves and the fact that the Supreme Court of New South Wales has regularly observed that the court is in a better position to deal with and determine such allegations than CARS: see for example Abiad at [76] and Taylor at [39] and [46]. Such advantages include the availability of transcript, evidence being properly tested under oath, evidence being heard in open court and subject to proper cross-examination and section 117 of the [MAC Act] being able to be availed of if appropriate.

It is submitted by the insurer that the insurer has made an allegation of ‘false and misleading statement’ and sufficient particulars of those allegations have been supplied in writing.

Given the above, together with the necessary formal cross-examination of the claimant and various medical and lay witnesses, substantial time will be required for the hearing of this matter. This also militates in favour of the matters being exempted.

In the insurer’s submission, the failure to disclose previous medical conditions, and the false or misleading statements outlined above are so fundamental to the issue of the claimant's truthfulness that her evidence must be taken under oath in court where her evidence is recorded and a transcript is available.

It is also relevant, in view of the findings in Taylor and Banos, that where the evidence suggests that there are contested versions from the claimant and from medical experts, the appropriate venue for the hearing of these issues is a court, where the parties have the facility to subpoena experts, treatment providers and the employer for records and also to compel their attendance for cross-examination, all of which is unavailable at CARS.

Finally, the insurer notes it is a requirement of section 116 of the [MAC Act] that “A licensed insurer must take all such steps as may be reasonable to deter and prevent the making of fraudulent claims” (emphasis added).

To that end, the insurer requests that the Assessor determine that this matter is not suitable for assessment on the basis that the insurer has made an allegation of false and misleading statement in a material particular under clause 14.16.11 of the Claims Assessment Guidelines and recommend that the Principal Claims Assessor issue a certificate to exempt this matter from assessment by CARS.

This will allow the claimant's evidence to be taken on oath in a jurisdiction where the claimant is subject to a penalty for perjury and where the court has the power to refer the matter to the police for prosecution under section 117 of the [MAC Act], if appropriate.

On account of the claimant's credit being in issue, this is a matter that ought to be ventilated in open court with proper and fair cross-examination, and with the ability for the claimant to seek protection against self-incrimination from section 128 of the Evidence Act (Cth) 1995, should it be required, which Is also not available at CARS.

The insurer submits the Assessor would be satisfied the matter is not suitable for, and should be exempted from, assessment at CARS.”

The decision of the claims assessor

18. On the first page of his decision, the claims assessor stated:

“I conducted a First Preliminary Conference in this matter on 17 December last. The insurer made an Application for Discretionary Exemption, based upon an allegedly false and misleading claim.

I subsequently received a number of surveillance DVDs and reports upon which the insurer relied in support of its application. The insurer made no written submissions.

I subsequently received the claimant’s submissions and a supplementary statement, both dated 30 January 2019, opposing the discretionary exemption of the claim.

I conducted a Secondary Preliminary Conference on 18 February last, at which Miss Germanoski confirmed that the insurer did not wish to make any written submissions.” (emphasis added)

19. Later in his decision, under the heading “Determination”, the claims assessor stated (CB 37):

“I have considered the films and surveillance reports provided by the insurer. I have considered the claimant’s supplementary statement commenting on the content of those films. I have considered the brief submissions made on the claimant’s behalf.

In the absence of written reasons by the insurer, it is difficult to identify the actual statements, allegedly made by the claimant, which the insurer says are relevantly false and misleading in a material particular, in relation to the injuries, loss or damage sustained by the claimant in the accident giving rise to the claim. It is left for me to infer that the claimant has allegedly exaggerated her injuries, loss or damage to the extent that the claim is relevantly false or misleading, of which the insurer bears the onus.

Having made an evaluative assessment (see Milton) of all that material, I must address the statutory question. Is the claim not suitable for assessment at CARS? It is beyond doubt that the claim is capable of assessment at CARS, but that is not the relevant consideration.

…

Having considered all of the material before me, I am satisfied that a fair and just hearing could be had at an assessment conference. For that reason, I am not satisfied that the claim is not suitable for assessment. Accordingly, I dismiss the insurer’s discretionary exemption application.” (emphasis added)

Judicial review generally

20. This Court has jurisdiction to grant any relief or remedy in the nature of a writ of certiorari, which includes jurisdiction to quash the ultimate determination of a court or tribunal, including both a medical assessor and proper officer, if that determination has been made on the basis of an error of law on the face of the record. The face of the record includes the reasons expressed by the court or tribunal for its ultimate determination: s 69 of the Supreme Court Act 1970 (NSW).

Grounds of judicial review

21. There are two grounds of judicial review. The first is that the claims assessor failed to respond to a substantial, clearly articulated argument. The second is that the claims assessor provided inadequate reasons for his decision. In considering these grounds, I acknowledge that I have largely adopted the insurer’s submissions.

Ground 1 - Failure to have regard to the insurer’s submissions

22. The first alleged error is that the claims assessor failed to respond to the insurer’s substantial, clearly-articulated submissions in support of its discretionary exemption application.

23. I have set out the insurer’s submissions to the claims assessor earlier in this judgment. The submissions to which the claims assessor failed to respond included the insurer’s submissions that the claim was not suitable for assessment because:

1. the insurer alleged that the first defendant made multiple false or misleading material statements, in that there were inconsistencies between:

1. her claim form (stating she had not had any relevant previous illnesses and injuries) and medical records; and

2. multiple statements she made about her symptoms and injuries (many of which the insurer specifically identified in its submissions) and the surveillance material obtained by the insurer;

2. it was appropriate that the insurer’s allegations be determined in court where witnesses are required to give sworn evidence, transcript is available, the court can make any necessary findings pursuant to ss 117 or 118 of the MAC Act, the court can accommodate (and is required as a matter of law to permit) the insurer to press all of the above issues and the court can make any necessary costs orders;

3. the first defendant’s credibility was in issue and the insurer should be given an opportunity to test her evidence under oath; and

4. a court is in a better position to deal with and determine allegations of false and misleading statements than is CARS, due to advantages such as evidence being subject to proper cross examination.

24. The failure to respond to a substantial, clearly articulated argument put forward by a party is a breach of the rules of procedural fairness. The failure to consider the substance of a party’s case also constitutes a constructive failure to exercise jurisdiction.

25. A number of aspects of the claims assessor’s reasons indicate that, at the time he made his decision, he was unaware of the insurer’s submissions.

26. Firstly, it is apparent from the opening paragraphs of his decision that the claims assessor considered the application for a discretionary exemption to have been made orally at the first preliminary conference on 17 December 2018. The application was in fact made in the written submissions which formed part of the insurer’s reply to an application for assessment of damages, lodged on 15 November 2018. The claims assessor’s statements that the insurer made “no written submissions” and indicating that it “did not wish to make any written submissions” at the second preliminary conference are incorrect. As the record of the second preliminary conference held on 18 February 2019 indicates, Ms Germanoski confirmed then that “the insurer [did] not wish to make any further submissions”, not that it did not wish to make any submissions, as it had already done so.

27. Secondly, the claims assessor’s statement that he arrived at his decision “in the absence of written submissions by the insurer” makes plain that he determined the discretionary exemption application without considering the insurer’s submissions which were filed with its reply on 15 November 2018. In addition, his expressed difficulty in identifying the claimant’s statements which are alleged to be false and misleading indicates that the claims assessor did not have regard to the submissions. Over five pages of the insurer’s submissions are dedicated to setting out the large number of statements which it said were false or misleading under the heading, “4. False and misleading statements.”

28. Finally, the claims assessor commented in the record of the third preliminary conference, which was held after he had provided his reasons, that he had inadvertently omitted to add the word “further” before the word “written” in the second paragraph of his reasons. This explanation, and especially the use of the word “inadvertently,” is inconsistent with the inference from the fourth paragraph of the decision, and its final page, that the claims assessor was unaware of the insurer’s written submissions when making his decision.

29. I acknowledge that the claims assessor did not have an obligation to consider every piece of evidence presented. However, he also did not refer to submissions of substance made by the insurer which, if accepted, were capable of affecting the outcome of its application. The aspects of the claims assessor’s reasons discussed above lead to the conclusion that he overlooked the insurers submissions when making his decision on the insurer’s exemption application. This is a breach of procedural fairness.

30. Moreover, even if he did not overlook the insurer’s submissions, he erred in law by failing to respond to the insurer’s substantial, clearly-articulated arguments. The failure to consider the substance of the insurer’s case constituted a constructive failure to exercise jurisdiction. For these reasons, the decision is invalid.

Ground 2 – Inadequacy of reasons

31. The second alleged error of law is that the claims assessor failed to provide adequate or lawful reasons for his decision.

32. In Wingfoot Australia Partners Pty Ltd v Kocak (2013) 252 CLR 480; 303 ALR 64 (“Wingfoot”), the High Court considered a similar statutory regime which provided for medical panels to assess Victorian workers compensation claims. In relation to the duty of a medical panel to give reasons for its decision, the High Court stated at [55]:

“The statement of reasons must explain the actual path of reasoning by which the medical panel in fact arrived at the opinion the medical panel in fact formed on the medical question referred to it. The statement of reasons must explain that actual path of reasoning in sufficient detail to enable a court to see whether the opinion does or does not involve any error of law. If a statement of reasons meeting that standard discloses an error of law in the way the medical panel formed its opinion, the legal effect of the opinion can be removed by an order in the nature of certiorari for that error of law on the face of the record of the opinion. If a statement of reasons fails to meet that standard, the failure is itself an error of law on the face of the record of the opinion, on the basis of which an order in the nature of certiorari can be made removing the legal effect of the opinion.”

33. Wingfoot has been applied repeatedly in New South Wales in relation to both medical assessors and claims assessors under the New South Wales scheme in the MAC Act: see Frost v Kourouche (2014) 86 NSWLR 214 at [2], [40]; Zahed v JAG Limited t/as NRMA Insurance (2016) 75 MVR 1 at [34].

34. In making its decision, the claims assessor in these proceedings was bound to set out his actual path of reasoning and to do so in terms sufficiently clear so as to enable a reader to determine whether or not he fell into legal error.

35. The claims assessor’s duty to give reasons for his decision was further heightened because the insurer had raised those specific areas of contention in its submissions.

36. In Allianz Australia Insurance Limited v Francica (2012) 63 MVR 1, Hall J stated at [17]-[18]:

“17 ... The decision of the Court of Appeal in Campbell City Council v Vegan (2006) NSWCA 284 is the leading authority in relation to the principles that apply to a case such as the present. His Honour, Basten JA, with whom the other members of court agreed, at paragraph 121 stated that:

‘Where it is necessary for the panel to make findings of fact in order to reach a particular conclusion as to the existence, nature and extent of any physical impairment it may be expected that the findings and material facts will be set out in its reasons. Where facts are in dispute, it may be necessary to refer to evidence or other material on which findings are based but the extent to which this is necessary will vary from case to case. More importantly, where more than one conclusion is open, it will be necessary for the panel to give some explanation for its preference of one conclusion over another. That aspect may have particular significance in circumstances where the medical members of the panel have made their own assessment of the applicant's condition and have come to a different conclusion from that reached by other medical practitioners as set out in reports provided to the panel.’

18 In determining the adequacy of reasons, which is the focus in Vegan, it is important to determine what was the issue; in other words, what was the precise battle ground between the parties before the determining tribunal. In the decision of Alchin v Daley (2009) NSWCA 418, Sackville AJA, with whom McCall JA and Young JA agreed, stated:

‘The extent and content of the reasons will depend on the particular case and the issues under consideration but it is essential to expose the reasoning on the point critical to the contest between the parties. This may require the judge to refer to evidence which is critical to the proper determination of the issue in dispute.’”

37. In his determination, the claims assessor stated that “in the absence of written reasons by the insurer”, he was left to “infer” that the insurer’s claim was that the claimant had exaggerated her injuries, loss or damage. He stated that “there does not appear to be any express requirement that reasons be given [by a claims assessor] where an application for a discretionary exemption is refused”. He then concluded, “Having considered all of the material before me, I am satisfied that a fair and just hearing could be had at an assessment conference.”

38. For the reasons given in relation to the first ground, it is my view that the claims assessor’s reasoning leads to the inference that he made his determination in absence of the insurer’s submissions. However, even if the claims assessor had considered the insurer’s submissions, his reasons read exactly as they would if he had not. In other words, his reasons do not enable this Court to see whether his opinion involved an error of law, as required: see Wingfoot at [55]. As such, it is my view that the claims assessor failed to provide adequate or lawful reasons for his decision. For this reason, the decision is also invalid.

Appropriate remedy

39. The insurer submitted that the matter should be remitted to SIRA for allocation to a different claims assessor for re-determination. That is the order which is sought in the (unopposed) summons.

40. I do not ordinarily accede to requests to make an order that a matter be remitted to SIRA for determination by a different claims assessor, as appointing claims assessors is usually a matter for SIRA to decide. However, it is my view for several reasons that an order remitting the matter to be determined by a different claims assessor is particularly appropriate in this case.

41. Firstly, the claims assessor sought to informally amend his decision at the third preliminary conference, in a manner which might suggest he was trying to conceal or deny his mistake in overlooking the insurer’s submissions. More importantly, the claims assessor signed the exemption application decision as “Special Counsel & Associate Director” of Chamberlains Law Firm, indicating that he was an Accredited Specialist in Advocacy, Dispute Resolution and Personal Injury. This is comparable to the claims assessor in Insurance Australia Ltd (t/as NRMA Insurance) v Banos (2013) 65 MVR 312 (“Banos”) publishing her reasons on the letterhead of the legal practice of which she was a partner. In Banos, Campbell J commented that he considered this practice to be “very undesirable” (at [94]). His Honour was of the view that publishing the decision on the letterhead of the legal practice “may detract from the essential appearance of independence and impartiality” (at [94]) required of a claims assessor.

42. For all of these reasons, I accede to the insurer’s request that the matter be remitted to SIRA for re-determination by a different claims assessor.

The result

43. The result is that the claims assessor has failed to afford the insurer procedural fairness and constructively failed to exercise jurisdiction. I make an order that the claims assessor’s decision to refuse the insurer’s application for exemption, made purportedly pursuant to s 92(1)(b) of the MAC Act, be quashed and that the proceedings should be remitted to SIRA to be determined in according to law.

Costs

44. The insurer does not seek costs from the submitting defendants.

The Court declares that:

1. The decision of the third defendant dated 29 July 2019 in CARS matter number 2018/12/3355 is vitiated by jurisdictional error.

The Court makes an order:

1. In the nature of certiorari removing into the Court the decision of the claims assessor in CARS matter number 2018/12/3355 and quashing that decision.

The Court further orders that:

1. CARS matter number 2018/12/3355 is remitted to the second defendant to be allocated to a different claims assessor for re-determination according to law.

2. There is no order as to costs.

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Decision last updated: 05 May 2020