Insurance Australia trading as NRMA Insurance v Liu

[2023] NSWSC 1604

Supreme Court

New South Wales

Medium Neutral Citation:

Insurance Australia trading as NRMA Insurance v Liu [2023] NSWSC 1604

Hearing dates:

24 October 2023

Date of orders:

18 December 2023

Decision date:

18 December 2023

Jurisdiction:

Common Law

Before:

Dhanji J

Decision:

(1)        The decision of the second defendant in her capacity as a delegate of the President of the Personal Injury Commission of New South Wales of 16 May 2023 is quashed; and

(2)        The matter is remitted to the third defendant for determination by the third defendant, or a delegate of the third defendant other than the second defendant, according to law.

Catchwords:

ADMINISTRATIVE LAW – Motor Accidents Injuries Act 2017 (NSW) – obligation to articulate error of law in the summons – whether reasons required for a decision of the President’s delegate to arrange for a medical assessment to be referred to a review panel – whether r 78 of the Personal Injury Commission Rules 2021 (NSW) impose an obligation to provide reasons – the role of the President – “gateway function” – error based on the reasons that were given – failure of the President’s delegate to answer the question asked of her – jurisdictional error established – no denial of procedural fairness – discretion to dismiss summons discussed – decision quashed – matter remitted

Legislation Cited:

Motor Accidents Compensation Act 1999 (NSW)

Motor Accidents Injuries Act 2017 (NSW)

Personal Injury Commission Act 2020 (NSW)

Personal Injury Commission Rules (2021) NSW

Supreme Court Act 1970 (NSW)

Cases Cited:

Ainsworth v Criminal Justice Commission (1992) 175 CLR 564; [1992] HCA 10

Avon Downs Pty Ltd v Federal Commissioner of Taxation (1949) 78 CLR 353; [1949] HCA 26

CXZ v Children’s Guardian [2020] NSWCA 338

DL v The Queen (2018) 266 CLR 1; [2018] HCA 26

George v Rockett (1990) 170 CLR 104 at 115; [1990] HCA 26

Gett v Tabet (2009) 109 NSWLR 1; [2009] NSWCA 76

Hussien v Chong Fook Kam (1970) AC 942

Insurance Australia Ltd v Marsh [2022] NSWCA 31

Meeuwissen v Boden (2010) 78 NSWLR 143; [2010] NSWCA 253

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

Nguyen v Motor Accidents Authority of New South Wales [2011] NSWSC 351; (2011) 58 MVR 296

Pinarbasi v AAI Ltd t/as GIO [2023] NSWSC 80

Queensland Bacon Pty Ltd v Rees (1966) 115 CLR 266; [1966] HCA 21

Rodger v De Gelder [2015] NSWCA 211; (2015) 71 MVR 514

Stanley v The Director of Public Prosecutions [2023] HCA 3; (2023) 299 A Crim R 391

The Queen v The Australian Broadcasting Tribunal; ex parte Hardiman (1980) 144 CLR 13; [1980] HCA 13

Texts Cited:

Motor Accident Guidelines (NSW)

Personal Injury Commission, Procedural Direction PIC7 – Appeals, reviews, reconsiderations and correction of obvious errors in medical disputes

Category:

Principal judgment

Parties:

Insurance Australia Limited (ABN 11 000 106 722) trading as NRMA Insurance (Plaintiff)
Chenpeng Liu (First Defendant – submitting appearance)
Rachel Brittliff, in her capacity as a Delegate of the President of the Personal Injury Commission of New South Wales appointed under section 18 of the Personal Injury Commission Act 2020 (NSW) (Second Defendant – submitting appearance)
The President of the Personal Injury Commission of New South Wales (Third Defendant)

Representation:

Counsel:
M Robinson SC with J Gumbert (Plaintiff)
JE Taylor (Third Defendant)

Solicitors:
Hall & Wilcox (Plaintiff)
AJB Stevens Lawyers (submitting appearance for First Defendant)
Crown Solicitor’s Office (submitting appearance for Second Defendant)
Crown Solicitor’s Office (Third Defendant)

File Number(s):

2023/247557

Publication restriction:

Nil

 Decision under appeal 

Court or tribunal:

Personal Injury Commission of New South Wales

Date of Decision:

16 May 2023

Before:

Rachel Brittliff, in her capacity as a delegate of the President of the Personal Injury Commission of NSW and The President of the Personal Injury Commission of New South Wales

File Number(s):

R-M 10567040/23

JUDGMENT

1. The first defendant suffered injuries in a motor vehicle accident and made a claim against the plaintiff insurance company. A dispute arose in relation to that claim which brought the matter before the Personal Injury Commission (the PIC or the Commission). The present case concerns the obligation of the President of the PIC, or their delegate, to provide reasons for a decision to arrange a medical assessment made under the Motor Accidents Injuries Act 2017 (NSW) (MAI Act) to be referred to a review panel.

2. By its summons filed on 4 August 2023, the plaintiff seeks an order in the nature of certiorari setting aside the decision of the President’s delegate to refer the medical assessment made with respect to the first defendant to a review panel. Alternatively, the plaintiff seeks a declaration declaring the decision invalid.

3. The President’s delegate is the second defendant in these proceedings. The President was named as the third defendant. The plaintiff also seeks, “if necessary, a declaration that direction 43 of Procedural Direction PIC 7 made by the third defendant is invalid as it is contrary to [r 78 of the Personal Injury Commission Rules (2021) NSW (PIC Rules)]”. The plaintiff seeks the matter be remitted to the third defendant for determination by a different delegate according to law.

The availability of relief

4. Relief in the nature of prerogative relief, including relief in the nature of certiorari, is available pursuant to s 69 of the Supreme Court Act 1970 (NSW). Such relief is available on satisfaction that “the ultimate determination of a court or tribunal in any proceedings has been made on the basis of an error of law that appears on the face of the record of the proceedings”: Supreme Court Act, s 69(3). No issue has been raised as to whether the decision of the second defendant was an “ultimate determination” in “proceedings”. The “face of the record” is defined to include “the reasons expressed by the court or tribunal for its ultimate determination”: Supreme Court Act, s 69(4). Such relief is also available for jurisdictional error.

5. Declaratory relief is available pursuant to s 75 of the Supreme Court Act and is an aspect of the Court’s inherent jurisdiction: Ainsworth v Criminal Justice Commission (1992) 175 CLR 564 at 581; [1992] HCA 10.

6. Relief in the nature of certiorari and relief by way of declaration are discretionary.

7. The first and second defendants each filed submitting appearances. As a result, the third defendant appeared to provide a contradictor in accordance with the principles in The Queen v The Australian Broadcasting Tribunal; ex parte Hardiman (1980) 144 CLR 13 at 35-36; [1980] HCA 13. The third defendant’s submissions were limited to responding to the plaintiff’s contention that the President, or their delegate, is under an obligation to provide reasons for a decision made under s 7.26(5) of the MAI Act.

8. The summons, under the heading “GROUNDS” sets out, over a number of paragraphs, the plaintiff’s argument in support of the relief sought. There was, however, no clearly articulated ground or grounds setting out the error or errors complained of. No issue was taken by the third defendant. This was likely due to the third defendant’s role being limited to arguing a discrete question of law. At the hearing, when the failure to articulate grounds in the summons was raised by me, senior counsel for the plaintiff expressed the grounds to be as follows:

1. the second defendant erred in failing to provide reasons for the decision (ground 1);

2. insofar as the second defendant did provide reasons, “the reasons demonstrate an error of law in the approach taken by [the President], namely [the President] sent something to a review panel in case it might be significant”, thereby failing to exercise her jurisdiction (ground 2); and

3. the plaintiff was denied procedural fairness (ground 3).

9. For the purposes of these reasons, I will refer to these as grounds 1, 2, and 3 respectively. It should not be thought from my consideration of this matter that the oral articulation of grounds alleging errors of law at the hearing of a matter is sufficient. In the present case, however, there was no complaint from the third defendant, understandably, given, as noted above, that appearance was limited to arguing a clear and discrete question of law. The other defendants, having filed submitting appearances, were not prejudiced. While the unsatisfactory approach impacted the assistance provided to the Court, the arguments and their relationship with the grounds articulated orally were, ultimately, discernible.

Background

The first defendant’s dispute with the plaintiff

10. On 12 March 2019, Chunpeng Liu, the first defendant in these proceedings, was injured when the motorcycle he was riding was hit by another vehicle. He suffered various injuries for which he seeks compensation. As noted above, he is in dispute with the plaintiff as to his entitlements. It is unnecessary for the purposes of these proceedings to examine the first defendant’s claim in any detail.

A limited overview of the statutory scheme

11. The MAI Act provides a scheme whereby the assessment of a claimant as having suffered permanent impairment of not greater than 10 percent, has significant implications. Such an assessment affects the maximum number of weeks over which weekly payments of statutory benefits under the MAI Act for loss of earnings of any capacity may be made: see MAI Act, s 3.12. Perhaps more significantly, it affects whether damages for non-economic loss may be awarded: MAI Act, s 4.12.

12. The dispute between the first defendant and the plaintiff concerns the degree of permanent impairment suffered by the first defendant including whether, as he contends, it is greater than 10 percent. In accordance with the provisions of the MAI Act, consequent to a referral by the plaintiff, a medical assessment of the first defendant was arranged by the President of the PIC: MAI Act, s 7.20(2). That assessment took place on 21 February 2023, and, on 5 March 2023, the medical assessor issued a certificate under s 7.23 of the MAI Act. That certificate assessed the first defendant’s permanent impairment at 5 percent.

13. On 3 April 2023, the first defendant applied to the President of the PIC seeking that the medical assessment made on 5 March 2023, be referred to a review panel for review: MAI Act, s 7.26(1). The application was accompanied by submissions in support. The plaintiff lodged submissions opposing the referral.

14. On 16 May 2023, the President’s delegate, the second defendant, referred the assessment to a review panel: MAI Act, s 7.26(5). The plaintiff challenges this decision.

Medical assessments under the MAI Act

15. In order to properly consider the plaintiff’s complaints, it is necessary to briefly set out some aspects of the legislative framework provided by the MAI Act. Part 6 of the MAI Act deals with motor accident claims and imposes a duty on an insurer and the claimant to “resolve a claim as justly and expeditiously as possible”: MAI Act, s 6.4(1). The MAI Act acknowledges that resolution between the parties is not always possible and provides a process set out in Part 7 which is titled “Dispute Resolution”.

16. Division 7.5 of Part 7 is titled “Medical assessment”. Under that Division (subject to potential requirements to exhaust preliminary processes such as internal review), a medical dispute about a claim may be referred to the President of the PIC for assessment under the Division: MAI Act, s 7.20(1). Subject to a power to refuse the referral where a party requesting the referral has provided insufficient evidence in support of the degree of impairment asserted (MAI Act, s 7.20(3)), the President is “to arrange for the dispute to be dealt with by one or more medical assessors”: MAI Act, s 7.20(2).

17. The matters declared to be a “medical assessment matter” are set out in Schedule 2, Clause 2 to the MAI Act, and include the degree of permanent impairment resulting from an injury caused by the motor accident and the degree of impairment of any capacity. The medical assessor is required to determine the degree of permanent impairment, in accordance with the Motor Accident Guidelines (NSW), expressed as a percentage: MAI Act, s 7.21(1). That determination is then expressed in a certificate which is (subject to the power of a court to reject the certificate in limited circumstances: MAI Act, s 7.23(3)), prima facie evidence of “the degree of impairment of earning capacity” and “conclusive evidence of any other matter certified”, which includes the degree of permanent impairment: MAI Act, s 7.23(2). Section 7.24 of the MAI Act provides for further medical assessment after an initial assessment in limited circumstances, which again requires the President to “arrange for the medical dispute … to be referred” for further medical assessment. Section 7.25 allows for further medical assessment or review of a medical assessment of limited matters on the basis of any agreement between the parties.

18. Central to the present matter is s 7.26 of the MAI Act. It was pursuant to s 7.26(5) that the second defendant arranged for the medical assessment that had been conducted (and was favourable to the plaintiff) to be referred to a review panel. It is necessary to set out the relevant parts of the section in full:

7.26 Review of medical assessment by review panel (cf s 63 MACA)

(1)   A claimant or an insurer may apply to the President to refer a medical assessment under this Division by a single medical assessor to a review panel for review.

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

(3)    A medical assessment may not be referred for review under this section on more than one occasion.

(4)    …

(5)    The President is to arrange for the medical assessment to be referred to a review panel, but only if the President is satisfied that there is reasonable cause to suspect that the medical assessment was incorrect in a material respect having regard to the particulars set out in the application.

(5A)   The panel is to be constituted by 3 persons chosen by the President as follows—

(a)    2 medical assessors,

(b)    1 member of the Commission who is a member assigned to the Motor Accidents Division of the Commission.

(6)    …

(6A)   …

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

(8)   …

(9)    …

(10)   …

The decision of the second defendant

19. As noted above, the second defendant “arranged” for the medical assessment to be referred to a review panel pursuant to s 7.26(5) of the MAI Act, and that decision is challenged by the plaintiff.

20. The second defendant’s decision is contained in a document of just over two pages. The details of the parties are set out, followed by the heading “Statement of Reasons for Decision”, below which is the statement “issued under section 7.26 of the Motor Accident Injuries Act 2017”. Below this appears the following:

“Decision

I am satisfied that there is reasonable cause to suspect that the medical assessment was incorrect in a material respect. Accordingly, the review application is accepted and will be referred to a Review Panel.”

21. Following the above matters, under the heading “Background”, there is a short statement of the history, which, among other matters, notes that the first defendant sought a review relying on his application and supporting documents, while the plaintiff opposed the review and addressed the issues raised by the first defendant. After making reference to s 7.26 of the MAI Act, the second defendant, under the heading “Submissions and Reasons”, recorded the following:

“7.    The claimant states that he took medical imaging with him to the medical assessment, but that Medical Assessor Cameron did not review or consider the imaging. Additionally, the claimant states that Medical Assessor Cameron did not exclusively undertake the claimant’s assessment during the allocated appointment.

8.    The claimant alleges that Medical Assessor Cameron conducted multiple consultations at the same time as he conducted the claimant's medical assessment. He states that, at one point, his interpreter was used to assist with another patient.

9.    I acknowledge that I cannot know what happened during the medical assessment however, on balance, if the claimant's version of events is accurate, I am satisfied that they give rise to a reasonable cause to suspect that the medical assessment was incorrect in a material respect.

10. I am satisfied that the requirements for referral of the matter to a Review Panel under s 7.26 of the Act have been met.

11.    The application is accepted and will be referred to a Review Panel.

12.    In making this decision, I have considered the following:

• The application, reply and supporting documentation, and

• The certificate including the reasons issued by Medical Assessor Cameron, the original application for assessment, the response and all the documents provided prior to the assessment.”

Ground 1 – were reasons required?

22. The plaintiff contends that the above decision of the second defendant constitutes, in effect, a failure to give any reasons at all. The nature and extent of what is required by way of reasons is dependent on circumstances: DL v The Queen (2018) 266 CLR 1; [2018] HCA 26 at [32]. Before any analysis of the reasons, it is convenient to first consider whether reasons are required at all for a decision by the President or the President’s delegate referring a medical assessment to a review panel for review pursuant to s 7.26(5) of the MAI Act.

23. The above question has already been considered by this Court, with a conclusion that reasons are not required: Pinarbasi v AAI Ltd t/as GIO [2023] NSWSC 80 (“Pinarbasi”). The plaintiff sought to side-step Pinarbasi on the basis that it did not decide the argument now relied on by the plaintiff, that is, that r 78 of the PIC Rules imposes an obligation to provide reasons. Whether that is so or not, there was a clear finding in Pinarbasi that reasons are not required and, while not binding, the decision is not so easily avoided.

24. The decision in Pinarbasi is consistent with direction 43 of the Personal Injury Commission, Procedural Direction PIC7 – Appeals, reviews, reconsiderations and correction of obvious errors in medical disputes (Procedural Direction PIC 7), which provides:

“If the President is satisfied that there is reasonable cause to suspect that the medical assessment was incorrect in a material respect, the application will be referred to a review panel and the President will advise the parties of the review panel details. The President is not required to provide reasons where he or she decides that the matter can proceed to a review panel assessment.”

25. The plaintiff, as noted above, seeks a declaration that this direction is invalid on the basis it is inconsistent with r 78 of the PIC Rules.

26. It is necessary to consider what Pinarbasi decided and whether it should be followed.

Pinarbasi

27. In Pinarbasi, the plaintiff (the claimant) was assessed as having suffered an injury which was not a minor injury. The defendant (the insurer) successfully sought a review of that decision with result that the President’s delegate referred the assessment to a review panel pursuant to s 7.26(5) of the MAI Act.

28. Schmidt AJ (at [2]) observed that the President, in this regard, exercises a “gateway function” of the kind considered in Meeuwissen v Boden (2010) 78 NSWLR 143; [2010] NSWCA 253 and Insurance Australia Ltd v Marsh [2022] NSWCA 31 (“Marsh”).

29. Her Honour said (at [6]-[11]):

“6   At common law there is no general obligation to give reasons for an administrative decision: Wingfoot Australia Partners Pty Ltd v Kocak (2013) 252 CLR 480; [2013] HCA 43 at [43]. But such an obligation may be implied: Campbelltown City Council v Vegan (2006) 67 NSWLR 372; [2006] NSWCA 284 at [25]. That depends on the nature of the function: at [104]-[108].

7   There may also be circumstances where the failure to give any reason supports an inference that the decisionmaker had no good reason: Public Service Board (NSW) v Osmond (1986) 159 CLR 656; [1986] HCA 7 at 663-664. But in this case, some reasons were given, in accordance with the President’s administrative practice.

8   The absence of a statutory requirement to give reasons does not preclude judicial review such as that here sought: Avon Downs Pty Ltd v Federal Commissioner of Taxation (Cth) (1949) 78 CLR 353; [1949] HCA 26 at 360.

9 In issue was whether there was an implied obligation to give reasons for decision imposed when the s 7.26(5) gateway function was exercised, which had not been complied with by the delegate. That turned on the proper construction of the statutory scheme.

10   Even if there was no such obligation, whether the delegate had considered an alleged error raised by the insurer’s application, which was incapable of rendering the assessor’s certificate incorrect in a material respect, given the assessor’s statutory functions, also arose to be considered.

11 While the President did not seek to be heard on this second question, there was no issue that the test to be applied to the formation of the state of satisfaction which s 7.26(5) required was whether the opinion formed was reached according to law: Avon at 360 and Buck v Bavone (1976) 135 CLR 110; [1976] HCA 24 at 118, applied in QBE v Miller [2013] NSWCA 442 at [36].”

30. As an aside, I note that the “second question” referred to at [10] reflects the manner in which the current plaintiff (at least at some points) put the second ground upon which relief is sought.

31. With respect to the obligation to give reasons, her Honour (at [30]-[31]) regarded the nature of the “gateway function” as administrative and not judicial in character as significant. Her Honour observed (at [30]) that the determination did not “require the correctness of the medical assessment sought to be reviewed to be determined”, nor did it “otherwise determine ultimate rights or liabilities” or “attract any appeal rights”, with any alleged error being reviewable only pursuant to an application for judicial review. Her Honour concluded (at [31]):

“It follows that on its proper construction, there is also not implied in s 7.26(5) any obligation to give reasons for the decision the President or the delegate arrives at, when exercising that gateway function, when an application for review of a medical assessor’s certificate is made.”

32. The plaintiff’s contention in Pinarbasi as to an obligation to give reasons, consequently, failed. The plaintiff in that case was, however, successful in his second ground, her Honour finding that the delegate erred in finding that there was reasonable cause to suspect that the medical assessment was incorrect in a material respect simply on the basis that there was a competing medical opinion: see at [58].

33. The plaintiff in the present matter, did not submit that Schmidt AJ was wrong in Pinarbasi, but rather submitted that her Honour did not determine whether the PIC Rules require the President or the President’s delegate to give reasons for a referral pursuant to s 7.26(5) of the MAI Act.

34. The plaintiff, in asserting there is an obligation to give reasons, necessarily (but not explicitly) submits that I should come to a conclusion different to that of Schmidt AJ on this issue. That raises an issue as to the precedential force of the decision in Pinarbasi, a matter which was not addressed by the plaintiff. The decision, as one at the same level of the judicial hierarchy, is not binding on me. Additionally, the particular question was not determinative of the result in Pinarbasi, the plaintiff succeeding on other grounds and, accordingly, it is not part of the ratio decidendi of the case. Nonetheless, there are significant considerations at play in determining whether I should depart from her Honour’s conclusion, either because it is plainly wrong, potentially on the basis that it was decided per incurium, or on some other basis: see generally Gett v Tabet (2009) 109 NSWLR 1; [2009] NSWCA 76 at [283]-[294].

35. Before considering this question, it is convenient to consider the merits of the plaintiff’s argument with respect to any obligation imposed by the PIC Rules to provide reasons for referring the matter to a review panel pursuant to s 7.26(5) of the MAI Act, an issue not apparently considered by Schmidt AJ. Of course, this may have been an oversight by the parties. Alternatively, the argument may have been considered to be without merit.

The argument in relation to the PIC Rules

36. The plaintiff relies on r 78 of the PIC Rules which provides:

78 Statement of reasons for decision

(1)    This rule applies only in relation to the following applicable proceedings—

(a)   Commission proceedings,

(b)   merit review proceedings.

(2)   A determination of the appropriate decision-maker in applicable proceedings to which this rule applies is to be accompanied by a brief statement of the appropriate decision-maker’s reasons for the determination that includes the following—

(a)   the appropriate decision-maker’s findings on material questions of fact, referring to the evidence or other material on which those findings were based,

(b)   the appropriate decision-maker’s understanding of the applicable law,

(c)   the reasoning processes that led the appropriate decision-maker to the conclusions made.

(3)   Without limiting subrule (2), the reasons are to be stated sufficiently, in the opinion of the appropriate decision-maker, to make the parties to the proceedings aware of the appropriate decision-maker’s view of the case made by each party.

37. The question for resolution is whether the second defendant’s decision pursuant to s 7.26(5) of the MAI Act was one to which r 78 of the PIC Rules applied. If it was, there was an obligation, pursuant to the PIC Rules, to give reasons, and if not, no such obligation arose, at least under the PIC Rules.

The PIC Rules

38. The PIC Rules are made pursuant to s 20 of the Personal Injury Commission Act 2020 (NSW) (PIC Act). In their interpretation, a construction that “would promote the objects of the [PIC] Act … is to be preferred to a construction that would not promote those objects”: PIC Act, s 4. Those objects are set out in s 3 of the PIC Act and include the object to “enable the Commission to resolve the real issues in proceedings justly, quickly, cost effectively and with as little formality as possible”: PIC Act, s 3(c). Other objects include to “ensure that the decisions of the Commission are timely, fair, consistent and of a high quality” (PIC Act, s 3(d)), and to “promote public confidence in the decision-making of the Commission and in the conduct of its members” (PIC Act, s 3(e)).

39. Returning to r 78 of the PIC Rules, it can be seen that it applies, “in relation to” “Commission proceedings” and “merit review proceedings”. The plaintiff necessarily submitted that the determination was made in “Commission proceedings” (there being no suggestion that the determination was made in relation to merit review proceedings). Pursuant to r 5(3) of the PIC Rules, “Commission proceedings” are “proceedings before the Commission under the PIC Act or enabling legislation”. The MAI Act is “enabling legislation”: PIC Act s 5.

40. Any obligation to give reasons “in relation to … Commission proceedings”, is, pursuant to r 78(1) of the PIC Rules, an obligation placed on “the appropriate decision-maker”: PIC Rules, r 78(2). The question thus arises as to whether the second defendant was, for the purposes of r 78(2) of the PIC Rules, “the appropriate decision maker”. This question is, of course, not posed in the general sense of whether it was appropriate that the second defendant made the decision, but rather, raises the question of whether she was an “appropriate decision maker” for the purposes of the application of the rule.

41. Rule 78 is in Part 8 of the PIC Rules, which is titled “Conduct of applicable proceedings generally”. Part 8 begins with r 72 which, as presently relevant, provides:

72 Exercise of functions under Part

In this Part, the appropriate decision-maker for applicable proceedings is—

(a)   for Commission proceedings—the Commission, or

(b)   …

42. It follows that the application of r 78 of the PIC Rules is dependent on the decision-maker being “the Commission”.

A decision of the Commission or of the President?

43. Section 7.26(5) of the MAI Act, in its terms, refers to “the President” as the decision maker, not the Commission. Section 1.4 of the MAI Act defines the President as “the President of the Commission”. “The Commission” is separately defined in s 1.4 of the MAI Act as the PIC. This separation or delineation between the President and the Commission is evident in, for example, s 7.27(1) of the MAI Act, which allows the Commission to refer a medical assessment to the President. There is, in this regard, a coherence with the PIC Act, which similarly separately defines the “Commission” and the “President”: see PIC Act, s 5.

44. The delineation between decisions of the Commission and of the President becomes more obvious on consideration of the PIC Rules. Part 6 of the PIC Rules is titled “Representation and parties”. Rule 59 of the PIC Rules is the first rule within the Part 6, and is a broad analogue of r 72, but with a significant difference. Rule 59 is as follows:

59 Exercise of functions under Part

In this Part, an appropriate decision-maker for applicable proceedings is—

(a)   for Commission proceedings—either the Commission or the President, or

(b)   for other applicable proceedings—the President. (emphasis added)

45. Part 7 of the PIC Rules is titled “Commencement of applicable proceedings”. That Part commences with r 65. That rule is identical to r 59. Thus, both rr 59 and 65 define the appropriate decision-maker for “Commission proceedings”, as including, “either the Commission or the President”. It was, as a result, clear that, under the PIC Rules, despite the President being a part of the Commission, a decision of the President or their delegate is not necessarily a decision of the Commission. It is necessary then to consider the role of the President within the Commission to understand whether a particular decision will be that of the President or of the Commission.

Role of the President within the PIC as set out in the PIC Act

46. The PIC is established by the PIC Act: s 6. Membership of the PIC consists of the President, Deputy Presidents, principal members, senior members, and general members: PIC Act, s 8(1). They have the respective qualifications set out in s 10 of the PIC Act. They have “any functions conferred or imposed on the member by or under” the PIC Act or any other legislation: PIC Act, s 11. The President may delegate functions of the President in accordance with s 18 of the PIC Act. The functions of the President are set out in s 16. Section 16(1) of the PIC Act provides:

16 Functions of President

(1)    The functions of the President are—

(a)   to direct the business of the Commission (including determining the places and times for sittings of the Commission), and

(b)   to facilitate the adoption of good administrative practices for the conduct of the business of the Commission, and

(c)   to give directions about, and participate in the development of, the practice and procedure to be followed by the Commission, and

(d)   to manage members in each of the Divisions of the Commission, and

(e)   to appoint medical assessors, merit reviewers and mediators for the purposes of enabling legislation and exercise general direction and control over the exercise of their functions, and

(f)   to advise the Minister about the appointment, reappointment and removal of members and assist in the process of recruitment at the direction of the Minister, and

(g)   any other functions that are conferred or imposed on the President by or under this Act or any other legislation.

47. A decision to “arrange for [a] medical assessment to be referred to a review panel” pursuant to s 7.26(5) of the MAI Act, is consistent with a function “conferred or imposed on the President by or under” the PIC Act, namely s 16(1)(e).

48. Part 3 of the PIC Act is titled “Functions and constitution of Commission”. Within that Part, s 31(1) provides that the PIC “is to be constituted by one or more Division members” of the relevant Division (that is, the Workers Compensation Division or the Motor Accidents Division): PIC Act, s 12(1). The President is given the power to make directions as to the members constituting the PIC for the purposes of any particular proceedings: PIC Act, s 31(2).

49. Part 5 of the PIC Act is titled “Practice and procedure” and deals with proceedings in the PIC, which might, having regard to s 31, be constituted by the President.

Conclusion as to ground 1

50. While the President might, in certain circumstances, constitute the Commission, the function required by s 7.26(5) of the MAI Act is, in my view, a function of the President, not the Commission.

51. The function in s 7.26(5) of the MAI Act is expressly given to “the President” not to “the Commission”. Further, the language requiring the President to “arrange” for the medical assessment to be referred to a review panel is more consistent with an administrative task imposed on the President than with a determination of the Commission. This is consistent with the description of the President’s function in this regard as a “gatekeeper” function as distinct from a decision-maker function: Meeuwissen v Boden at [23], and as discussed in Pinarbasi above.

52. The context for the above is the juxtaposition between r 78 and rr 59 and 69. The explicit inclusion, in the latter rules, of the Commission or the President as the appropriate decision-maker contrasts with r 78 which refers only to the President.

53. It follows, in my view, that the decision made under s 7.26(5) of the MAI Act, is not a decision of an “appropriate decision-maker” for the purposes of r 78 of the PIC Rules. No obligation arose pursuant to r 78 of the PIC Rules, or otherwise, to provide reasons. The conclusion of Schmidt AJ in Pinarbasi was, in my view, correct and it does not need to be revisited. Insofar as the plaintiff relied on the second defendant having erred in law by failing to provide reasons, the application must fail.

54. Given the view I have come to, there is no inconsistency between Direction 43 of the Procedural Direction PIC 7 and the PIC Rules.

Ground 2 – whether the reasons reveal an error of law

55. The third defendant’s appearance was limited to the issue in ground 1. There was, thus, no contradictor with respect to this ground. Central to the plaintiff’s second argument is that the second defendant having provided limited reasons for her decision, that decision can be judged on those reasons, and those reasons reveal error.

Error based on the second defendant’s conclusion

56. The plaintiff relied on the statement of principle set out in Pinarbasi at [32]-[33]:

“32   As explained in [Avon Downs Pty Ltd v Federal Commissioner of Taxation (1949) 78 CLR 353; [1949] HCA 26] at 360, even though there is no requirement to give reasons when the gateway function is exercised, the decision may be reviewed in proceedings such as this. Such an application will succeed, if on a full consideration of the material which arose to be considered, the conclusion reached is capable of explanation only on the ground of some misconception as to the applicable law.

33   Thus, ‘[i]f the result appears to be unreasonable on the supposition that he addressed himself to the right question, correctly applied the rules of law and took into account all the relevant considerations and no irrelevant considerations, then it may be a proper inference that it is a false supposition.’ In such a case it is not necessary ‘to be sure of the precise particular in which he has gone wrong. It is enough that you can see that in some way he must have failed in the discharge of his exact function according to law’.”

57. The plaintiff’s reliance on the above statement in Pinarbasi is inapposite to the complaint that the reasons that were given reveal error. Pinarbasi was decided on the basis that, irrespective of the presence or absence of reasons (or their content), the result revealed error. The paragraphs of Pinarbasi set out above, set out the principle that allowed for this conclusion. A complaint on this basis goes beyond the plaintiff’s second ground of appeal. Nonetheless, given the plaintiff’s reliance on the above paragraphs in written submissions, for completeness, I will deal with it.

58. The present case is somewhat different to the factual circumstances in Pinarbasi, and the earlier decision of the Court of Appeal in Marsh, on which Pinarbasi relied. Marsh was concerned with the previous legislation and, in particular, with s 63(3) of the Motor Accidents Compensation Act 1999 (NSW), which was in relevantly similar terms to s 7.26(5) of the MAI Act. In Marsh, it was noted (at [63]) that the existence of a medical dispute is almost inevitably in the context of conflicting medical opinions. It was then observed (at [64]-[65]):

“64   The existence of conflicting reputable medical opinions might well mean that the proper officer would inevitably have reasonable cause to suspect that a review panel might reach a different conclusion from the medical assessor. But that is not the question. The question is whether the proper officer is satisfied that there is reasonable cause to suspect material error by the assessor. Because the assessor’s task is not to pronounce on the correctness of other medical opinion but to form his or her own opinion, it is necessary for an applicant under s 63(1) to persuade the proper officer of reasonable cause to suspect material error in the assessor’s consideration, eg by the ignoring of important facts or not undertaking the assessment correctly, either procedurally or by not addressing the right questions (Meeuwissen v Boden at [22]).

65   The primary judge was correct in saying that it is not the role of the proper officer to choose between competing medical opinions (J[65]). Nor is that the role of the medical assessor. The proper officer did not mistake his role.”

59. In the present case, the application for review was not sought solely on the basis of conflicting opinions. Rather, the complaint made by the first defendant in his application for review was something much closer to the example referred to in Marsh of “the ignoring of important facts or not undertaking the assessment correctly, either procedurally or by not addressing the right questions”.

60. Here, a statement made by the first defendant providing an account of his examination by the medical assessor was relied upon on the application for review. Based on those asserted facts, the submissions of the first defendant on the application for review complained that the medical assessor:

1. failed to call on (and thus to consider) radiological material the complainant had taken to the assessment;

2. failed to take a correct history, and, in particular, the first defendant was not asked about his current neck complaints;

3. failed to take accurate measurements of the first defendant’s loss of range of movement as a result of a flawed methodology, that methodology being inconsistent with the Motor Accident Guidelines (NSW);

4. failed to assess the first defendant’s extremity impairments in breach of the principles in Nguyen v Motor Accidents Authority of New South Wales [2011] NSWSC 351; (2011) 58 MVR 296; and

5. failed to provide adequate reasons for his findings.

61. The conflicting opinion of the first defendant’s doctor was relied on, but this was to give substance to the above complaints. In essence, it was submitted the conflicting opinion of the first defendant’s doctor demonstrated the materiality of the failures of the medical assessor (by explaining the reasons for the differing opinions).

61. Detailed submissions were provided by the plaintiff in response to the first defendant’s submissions. No further evidence was relied on by the plaintiff beyond that which was contained in the medical assessment, which included details of the assessment and the assessors account of the history provided.

62. It is not my function to determine the merits of the competing submissions referred to above. That was the role of the second defendant. What can be said, however, was that, unlike the situations in Pinarbasi and Marsh, the first defendant put before the second defendant not merely a conflicting opinion, but, rather, reasons why the medical assessor’s findings were unsound. That is, the first defendant put forward a basis, or bases, on which it was, at least open to conclude that the medical assessment was “incorrect in a material respect”.

63. Error cannot, in the present case, be found simply by considering the result.

Error based on the reasons that were given

65. The above does not, however, deny the proposition that, the second defendant having provided some reasons, those reasons may reveal error (on the face of the record). That is, just as in the absence of any obligation to give reasons the result may reveal error, such reasons as are given may also reveal error: Avon Downs Pty Ltd v Federal Commissioner of Taxation (1949) 78 CLR 353 at 360; [1949] HCA 26. It is necessary then to consider whether error is revealed in this manner.

66. The reasons that were given were attacked as being no reasons at all, or, in the alternative, inadequate reasons as a result of a failure to articulate a rational process of reasoning and a failure to address various matters including factual issues and the arguments of the plaintiff.

Failure to make findings of fact

67. Insofar as the plaintiff complains that the second defendant failed to make findings of fact with respect to the matters leading the first defendant to complain that the assessment process was flawed, this can be dealt with shortly. There was no obligation on the second defendant to make “findings of fact” as to what did or did not occur. Rather, the second defendant was required to consider all relevant material for the purposes of determining whether a particular state of mind was reached based on the application, that is, satisfaction of “reasonable cause to suspect that the medical assessment was incorrect in a material respect”.

68. While “reasonable cause” provides an important qualifier, “reasonable cause to suspect” is not a particularly high bar, particularly in comparison with other states of mind such as reasonable cause to believe, satisfaction on the balance of probabilities, and, at the most extreme end, satisfaction beyond reasonable doubt. A “suspicion … ‘in its ordinary meaning is a state of conjecture or surmise where proof is lacking: ‘I suspect but I cannot prove’’”: see George v Rockett (1990) 170 CLR 104 at 115; [1990] HCA 26, quoting Lord Devlin in Hussien v Chong Fook Kam (1970) AC 942 at 948. Conversely, a suspicion is more than “a mere idle wondering whether it exists or not; it is a positive feeling of actual apprehension or mistrust, amounting to 'a slight opinion, but without sufficient evidence’”: Queensland Bacon Pty Ltd v Rees (1966) 115 CLR 266 at 303; [1966] HCA 21, quoted in George v Rockett at 115.

69. To reach such a state of mind, it was not necessary that the second defendant make findings of fact. Indeed, to have made a series of factual findings may have distracted the second defendant from the cumulative effect of all the evidence. The process of reaching a state of mind based on past disputed events was discussed in CXZ v Children’s Guardian [2020] NSWCA 338. The process in the present context is, in my view, similar. The second defendant was not required to make findings of fact with respect to the matters on which the first defendant and the plaintiff were in conflict. Indeed, given the onus on the first defendant (imposed by s 7.26(5) of the MAI Act) did not require him to satisfy the second defendant of any fact, it is difficult to know what state of satisfaction would be required with respect to any intermediate facts.

The process of reasoning

70. Turning then to the process of reasoning of the second defendant, the reasoning, which appears under the heading “Submissions and Reasons”, set out above, largely consists of a repetition of the first defendant’s claims with no reasoning on how those matters might contribute to the relevant state of mind.

71. The second defendant states that the medical assessor “did not review or consider the imaging” which the first defendant asserted he took with him. There is no statement of how the medical imaging may have impacted the assessment in the light of the examination that took place. It seems to me at least plausible that the failure to consider the imaging was a significant oversight with the potential to impact on what was observed in the physical examination. However, I lack the relevant expertise and it is not my function to guess.

72. The second defendant referred to the claims that the medical assessor did not “exclusively undertake the [first defendant’s] assessment”, but rather, “conducted multiple consultations”, “at one point” utilising the first defendant’s interpreter to assist with another patient. There is no obvious direct logical connection between the use of the first defendant’s interpreter for another patient and the correctness of the medical assessment. However, it is not necessarily irrelevant. I would read the complaint with respect to the interpreter compendiously with the other complaints which are to the effect that the assessor failed to give appropriate attention to the first defendant for the purposes of the assessment. This was potentially significant with respect to the first defendant’s complaint, in the submissions to the second defendant, that the medical assessor failed to take a proper history from the first defendant. No such connection was, however, drawn.

73. Finally, the second defendant concluded that she could not “know what happened during the medical assessment however, on balance, if the [first defendant’s] version of events is accurate, I am satisfied that they give rise to a reasonable cause to suspect that the medical assessment was incorrect in a material respect”. This was not a finding of satisfaction of “reasonable cause to suspect the medical assessment was incorrect in a material respect”. It was a contingent finding. That is, it was a finding that the second defendant would be satisfied if the first defendant’s version of events was correct. There being a failure to answer the question actually asked of her, the second defendant misconceived the nature of the function she was required by statute to perform: Stanley v The Director of Public Prosecutions [2023] HCA 3; (2023) 299 A Crim R 391 at [18]; Rodger v De Gelder [2015] NSWCA 211; (2015) 71 MVR 514 at [95]. I am satisfied the second defendant fell into jurisdictional error.

74. I am conscious of taking an overly critical approach to the reasons given by the second defendant: Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 271-272; [1996] HCA 6. It is also inappropriate to scrutinise the reasons of an administrative decision-maker in the way that an appellate court might review a judgment. The second defendant indicated she had considered all submissions. The context was the existence of a medical dispute (and consistent with this, there existed a contrary opinion relied on by the first defendant as referred to in his submissions to the second defendant). Given these matters, it is not difficult to recast the reasons to provide logical coherence. It seems likely to me that the second defendant’s process was to acknowledge that the first defendant had made a number of claims with respect to the assessment process. Those claims raised concerns as to the adequacy of the assessment conducted by the medical assessor, including a failure to consider medical imaging. Further, the manner in which the assessment was conducted had the result that the medical assessor did not take a complete history from the first defendant. Consideration of the imaging and a more complete history could have impacted the medical assessor’s assessment of the first defendant. Given these matters, while no absolute findings could be made as to what occurred during the medical assessment, the first defendant’s version explained the different opinions and there was, as a result, reasonable cause to suspect that the assessment was incorrect in a material respect.

75. It is not, however, for me to recast the reasons to make them acceptable. As indicated above, the second defendant failed to answer the question asked of her and jurisdictional error has been established.

Ground 3 – denial of procedural fairness

76. The complaint that the plaintiff was denied procedural fairness was essentially made on the basis that there was a failure to give reasons where there was an obligation to do so. Given my finding on ground 1 that there was no obligation to give reasons, this ground must fail. I note, in this context, that ground 2 succeeds despite the absence of any obligation to give reasons on the basis, not of the inadequacy of the reasons per se, but rather on the basis that the reasoning exposed reveals error.

Discretion

77. I have given careful consideration as to whether, despite error being established, the plaintiff’s summons should, nonetheless, be dismissed. In this regard, what I have set out above as to the likely reasoning process militates strongly towards relief being refused. However, there is an element of guesswork as to whether, what I have surmised to have been the reasoning process, was, in fact, the process. Of course, even if I am wrong as to this being the reasoning process of the second defendant, it is arguable that, as such a reasoning process is available, it should be adopted to conclude that the referral to the review panel should stand. It is not, however, as I have stressed above, my function to assess the first defendant’s application for referral for review. I am, additionally, mindful that the PIC is a specialist tribunal dealing with injuries occasioned by motor vehicle accidents as well as injuries relevant to workers compensation. The President and the President’s delegates have the appropriate expertise to deal with these issues. While the result may ultimately be the same, whether the matter is ultimately referred should be a matter for the President or the President’s delegate.

Costs

78. While the plaintiff’s summons sought an order for costs, at the hearing of the matter this was not pressed. No costs should be awarded.

Orders

79. For the reasons given, I order:

1. The decision of the second defendant in her capacity as a delegate of the President of the Personal Injury Commission of New South Wales of 16 May 2023 is quashed; and

2. The matter is remitted to the third defendant for determination by the third defendant, or a delegate of the third defendant other than the second defendant, according to law.

**********

Decision last updated: 18 December 2023