Jenkin v Allianz Australia Insurance Limited

[2022] NSWPIC 565

CERTIFICATE OF DETERMINATION OF MEMBER
Citation:	Jenkin v Allianz Australia Insurance Limited [2022] NSWPIC 565
Claimant:	Kaeden Jenkin
insurer:	Allianz Australia Insurance Limited
Member:	Bridie Nolan
DATE OF DECISION:	5 July 2022
CATCHWORDS:	MOTOR ACCIDENTS - Interim decision; allegation of apprehended bias by insurer on the basis that member had previously determined claim for statutory benefits; application that Member recuse herself; determined that fully informed, hypothetical fair-minded lay observer would not be less confident of Member’s ability to put out of her mind irrelevant and damaging information given her legal qualifications, background and reasons; qualification of Member considered; Held – application for recusal refused.
determinations made:	1.    Application for recusal denied

INTRODUCTION

1. This matter has been allocated to me for the assessment of common law damages.  I previously made a decision in the context of determining a miscellaneous claims assessment with respect to liability.  Those reasons in ABF v Allianz Australia Insurance Limited [2021] NSWPIC 165.  The date of that decision is 31 May 2021.

2. The insurer made an application that I recuse myself, which I refused to do.  The insurer requested written reasons. The following are a brief statement of my reasons. 

REASONS

1. There is no dispute that the principles of apprehended bias are applicable to the exercise of my powers under the Personal Injury Commission Act 2020 (NSW) and the Motor Accidents Injuries Act 2017 (NSW).

2. The principles regarding apprehended bias in connection with decisions of administrative decision makers are well established. 

3. In Isbester v Knox City Council [2015] 255 CLR 135, in the context of a decision made by a local council committee, the plurality (Kiefel (as the Chief Justice then was), Bell, Keane & Nettle JJ) at [20] stated “that the test is whether a fair-minded lay observer might reasonably apprehend a lack of impartiality with respect to the decision to be made.” The plurality also stated (at [22]) that the application of the principle in Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 applied to decision makers other than judges, however, it must necessarily recognise and accommodate the differences between court proceedings and other kinds of decision making. Their Honours went on (at [23]) to opine that whether the principles applying to an apprehension of bias depend upon the nature of the decision, its statutory context, what is involved in making the decision and the identity of the decision maker.

4. The principles of natural justice, which have long been regarded as having a flexible quality, will be different according to the way in which the power is exercised. A hypothetical lay-minded observer assessing an apprehension of bias is taken to be aware of the nature of the decision and the context in which it is made, and also, the knowledge of the circumstances leading to the decision.

5. In this case, as a decision maker appointed to membership of the Personal Injury Commission, s 10 of the Personal Injury Commission Act 2020 (NSW) (PIC Act) requires that as a General Member, I be an Australian lawyer of at least five years standing and hold a special knowledge, skill, or expertise in relation to the matters over which the Commission has jurisdiction: s 10(4) of the PIC Act. It is relatively easy to determine that I have been practising in NSW and other states and territories in Australia as a Barrister and lawyer for nearly 20 years. I have also been a Member of the legal academy since 2004 and lectured extensively in Public and Administrative Law at several of Australia’s sandstone universities. I presently lecture at the University of New England. Benefitting from this experience, I am acutely aware of the principles which attend an apprehension of bias and what those principles require of me in the statutory decision-making role and context. I consider that these qualifications and experience enable me to put squarely out of my mind any matters which I may have taken into account in any previous decision making in a different statutory context, concerning any party, such as that in this case determining questions under Division 3.3 of Part 3 of the Motor Accidents Injuries Act 2017 (NSW).

6. Where an allegation of an apprehension of bias or an impartial mind is made against an administrative officer, the allegation must be “distinctly made and clearly proved”: Minister for Immigration and Multicultural Affairs v Jia Legeng [2001] HCA 17; 205 CLR 507 at [69] per Gleeson CJ and Gummow. The insurer has put before me no submissions which might identify the fact that despite my stated training and experience, the material I considered, and the conclusion to which I came in that determination, (to which I have and will have no further regard unless the parties were to so invite me), will cause me to deviate from neutral evaluation of the merits of the case as presented to me on an assessment for damages: see e.g. O’Sullivan v Medical Tribunal of New South Wales [2009] NSWCA 374 at [24] – [25].

7. A fair-minded observer would be attributed with the knowledge of these matters and their implications for any question of the apprehension of bias.  He or she would know that I possess the qualifications requisite experience to be able to abide by the requirements of procedural fairness.  The insurer has pointed to no interest, conduct, or association which may give rise to an apprehension of bias.  I do not consider that a decision that I made (of which I cannot even recall the details) constitutes the relevant extraneous information of which Deane J spoke in Webb v The Queen (1994) 181 CLR 541. The two decisions are made of a different statutory context. The claimant was not cross-examined, and I have made no findings of credit, which would be prejudicial or extraneous to these proceedings. I imagine that the material in the proceeding on this claim will be more advanced given the nature of different issues in dispute. Certainly, the parties have the benefit of my earlier reasons and are able to deal with any of the evidentiary lacunae that may be apparent on those reasons, such that I imagine the evidence will be different.

8. In my opinion, a fully informed, hypothetical fair-minded lay observer would not be less confident of my ability to put out of my mind irrelevant and damaging information given my qualifications, background, and these reasons.  He or she would not perceive that I might not be able, when considering the claimant’s claim, to consider and review the material that is put before me on that application afresh with an impartial mind.

   CONCLUSION

9. It is for these reasons that I have declined the insurer’s application.