Momand v Allianz Australia Insurance Limited

[2023] NSWSC 1014

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:

Momand v Allianz Australia Insurance Limited [2023] NSWSC 1014

Hearing dates:

24 April 2023

Date of orders:

24 August 2023

Decision date:

24 August 2023

Jurisdiction:

Common Law

Before:

Harrison AsJ

Decision:

(1) The delegate’s decision dated 13 October 2022 is set aside.

(2) The matter is remitted to the President of the Personal Injury Commission to be dealt with according to law.

(3) Costs are reserved.

Catchwords:

JUDICIAL REVIEW – Decision of the Delegate – Medical Assessment Certificate – Adequate reasons – Grounds of assessment – Motor Injury – Minor injury – Threshold injury – Radiculopathy – Remitted to the Person Injury Commissioner – Decision set aside. 

Legislation Cited:

Motor Accident Injuries Act 2017 (NSW) ss 1.6, 3.11, 4.4, 7.26 and 63

Motor Accident Injuries Regulation 2017 (NSW) cl 4

Motor Accidents Compensation Act 1999 (NSW) s 63

Personal Injury Commission Rules 2021 (NSW) rr 23 and 133A

Cases Cited:

Allianz Australia Insurance Ltd v Cervantes [2012] NSWCA 244

Allianz Australia Insurance Ltd v Francica [2012] NSWSC 1577

Wingfoot Australia Partners Pty Ltd v Kocak (2013) 252 CLR 480

Category:

Principal judgment

Parties:

Yama Momand (Plaintiff)
CIC Allianz Insurance Limited (First Defendant)
Tajan Baba (in his capacity as the President’s Delegate) (Third Defendant).
President of the Personal Injury Commission (Fourth Defendant).

Representation:

Counsel:
R. Sheldon SC and K. Boettcher (Plaintiff)
No appearance (Defendants)

Solicitors:
Brydens Lawyers (Plaintiff)
McInnis Wilson Lawyers (First Defendant)
Crown Solicitor's Office (Second, Third and Fourth Defendants)

File Number(s):

2022/00319007

Judgment

1. This is a judicial review from the Personal Injury Commission concerning a minor injury arising from a motor vehicle accident.

2. By amended summons filed on 20 December 2022, the plaintiff relevantly seeks:

(1)   A declaration that Clause 5.9 of the Medical Assessment Guidelines issued under the Motor Accidents Injuries Act, 2017 is ultra vires, void and of no effect.

(2)   Set aside the Certificate of Assessor Cameron issued on 26 July 2022.

(3)   Set aside the Determination of the Delegate of the President of the Personal Injury Commission of 13 October 2022.

…

(5)   Remit the matter for to be referred for assessment.

…

3. The plaintiff is Yama Momand. The first defendant is CIC Allianz Insurance Limited (‘the insurer’). The second defendant is Ian Cameron in his capacity as a medical assessor. The third defendant is Tajan Baba in his capacity as a President’s Delegate. The fourth defendant is the President of the Personal Injury Commission. The second, third and fourth defendants filed a submitting appearance.

4. The plaintiff relied on a Court Book (2 Volumes). R. Sheldon SC and K. Boetcher of counsel appeared on behalf of the plaintiff. On 3 April 2023, by email the first defendant (‘the insurer’) advised the plaintiff that it consents to paragraphs 2, 3 and 5 of the summons as set out above. That means there is no contradictor. Nevertheless, this Court has to satisfy itself whether these grounds of review constitute errors of law or jurisdictional errors on the face of the record and if so whether the matter should be remitted to the Personal Injury Commission to be determined according to law.

5. These proceedings challenge a Medical Assessment Certificate issued by Assessor Ian Cameron on 26 July 2022 (‘the Assessor’) (CB.36-37) and a failure by the delegate of the President of the Personal Injury Commission (‘the delegate’) to accept that the Application for Review of the Certificate (‘the Application’) was lodged within time, or to extend time for making that Application under rule 133A of the Personal Injury Commission Rules 2021 (NSW) (‘PIC Rules’), and to determine the refusal of the application to extend time would "work demonstrable and substantial injustice" (rule 133A(5)).

Background

The law

6. "Minor Injury" was then defined at s 1.6 of the Motor Accident Injuries Act 2017 (NSW) (‘MAIA’). It read:

1.6 Meaning of "minor injury"

(1) For the purposes of this Act, a "minor injury" is any one or more of the following-

(a) a soft tissue injury,

…

(2) A "soft tissue injury" is (subject to this section) an injury to tissue that connects, supports or surrounds other structures or organs of the body (such as muscles, tendons, ligaments, menisci, cartilage, fascia, fibrous tissues, fat blood vessels and synovial membranes), but not an injury to nerves or a complete or partial rupture of tendons, ligaments, menisci or cartilage.

7. The definition of “minor injury” was amended. Minor injury was changed to “threshold injury”, but the rest of the s 1.6 remained the same. These proceedings fall under “minor injury” as set out above.

8. On 19 January 2018, the plaintiff was injured in a motor accident within the meaning of the MAIA. The first defendant admitted breach of duty of care by its insured owner/driver in relation to the accident.

9. As to whether the plaintiff’s injuries were “minor”, in a report dated 3 February 2018 prepared by Dr. Tej Dugal, the plaintiff underwent an MRI of the cervical spine. It revealed the following:

“Clinical history: Motor vehicle accident. Neck pain with radiculopathy to the left arm.

…

Findings: Assessment of the individual disc levels throughout the cervical spine is notable for broad-based disc protrusion at C5/C6. This indents the ventral thecal sac and is not associated with central canal compromise. The foraminal assessment does show moderate stenosis bilaterally. Remaining levels are intact. Precervical soft tissues are normal.

CONCLUSION: C5/6 broad-based disc protrusion associated with mild to moderate foraminal stenosis bilaterally abutting the exiting C6 nerve roots.”

10. On the same day, the plaintiff also underwent a CT scan of the lumbar spine, which revealed:

“Clinical history; Radiculopathy.

…

Findings: Lumbar spine alignment is maintained. No vertebral body fracture is appreciated.

Assessment of the individual disc levels reveals intact Ll/2, L2/3 and L3/4.

L4/5 does demonstrate a subtle broad-based disc bulge indent the ventral sac which is not associated with central canal stenosis. Exiting L4 nerve roots pass freely.

L5/S1 level Is intact.

There is no pars interarticularis defect. No focal aggressive lesion is seen. Paravertebral soft tissues are normal.

CONCLUSION: CT scan of the lumbar spine does show at L4/5 subtle broad-based disc bulge without neural compression.”

11. In summary, the results of the tests showed that there was a broad-based disc protrusion at C5/C6. This indents the ventral thecal sac. The CT scan of the lumbar spine demonstrated a subtle broad-based disc bulge of the ventral sac.

The grounds of review – Assessor

12. The grounds of judicial review in relation to the Assessor’s decision are as follows:

1. The Assessor failed to give reasons or adequate for determining that the injury to the plaintiff’s neck and low back were minor injuries.

2. The Assessor failed to have regard to the definition of minor injury in the Motor Accidents injuries Act, 2017 as it relates to spinal discs.

3. The Assessor applied Clause 5.9 of the Medical Assessment Guidelines which is ultra vires.

The Assessor’s decision dated 24 July 2022

13. At page 5 of the Certificate the Assessor noted:

"The cervical spine MRI of 03 February 2018 stated there was disc protrusion at C5/6"

14. At page 7 he said:

"(the Plaintiff) suffered soft tissue injuries to his cervical spine and lumbar spine"

15. He then wrote "Cervical spine - soft tissue injury" was caused by the motor accident: also, at page 7.

16. On page 8 he excluded injury to the shoulders as injuries in themselves. This finding is not the subject of this judicial review.

17. Paragraph [23] of the Certificate addresses "Minor Injury" and correctly recites s 1.6(2) of the MAIA, that states:

"A soft tissue injury is (subject to this section) an injury to tissue that connects, supports or surrounds other structures or organs of the body (such as muscles, tendons, ligaments, menisci, cartilage, fascia, fibrous tissues, fat, blood vessels and synovial membranes), but not an injury to nerves or a complete or partial rupture of tendons, ligaments, menisci or cartilage."

18. The assessor then quotes from what he describes as "Schedule 1 [2] Cl 4" of the Motor Accident Injuries Regulation 2017 (NSW) (the "Regulations"). The quote seemingly refers to Part 1 Cl 4 of the Regulations, which relevantly provides:

(1) An injury to a spinal nerve root that manifests in neurological signs (other than radiculopathy) is included as a soft tissue injury for the purposes of the Act.

19. The assessor then proceeded to explain that the absence of radiculopathy renders the "listed injuries" as falling into the category of minor injuries. In doing so the basis cited for the determination is based upon the regulation. Because the injury was minor permanent impairment was not evaluated: para [26], page 9. While the plaintiff puts in issue the Assessor’s approach to radiculopathy, I do not agree with these submissions: see [29] of the Delegate’s decision.

20. The assessor determined the plaintiff had, relevantly, suffered a soft tissue injury to his neck. Central to the Assessor's approach was a statement that an MRI of the neck performed on 3 February 2018 showed a disc protrusion at C5/6. The Assessor omitted reference to the balance of the report of that MRI, which identified "indentation of the ventral thecal sac" and moderate stenosis bilaterally (as set out earlier in this judgment). The thecal sac is a membranous sheath or tube of dura mater surrounding the spinal cord. A disc is comprised of cartilaginous material.

The plaintiff’s submissions

21. The first complaint is that the assessor was not dealing with "injury to a spinal nerve root" he was dealing with a disc protrusion. The regulation he cited had nothing to do with the matter he was assessing or, if it did, he did not explain the connection between a prolapsed disc and injury to a nerve root.

22. Section 1.6(2) of the MAIA defines a soft tissue injury by reference to a variety of tissue types or body parts and then provides that a soft tissue injury is:

"Not an injury to nerves or a complete or partial rupture of tendons, ligaments, menisci or cartilage".

23. Because an intervertebral disc is a cartilaginous structure injury to the disc, it is not a soft tissue injury. A prolapsed disc is "not minor" because it involves (at least) the partial rupture of cartilage.

24. The assessor does not explain the relationship between a disc protrusion, the protrusion of disc material by reason of the partial or complete rupture of the cartilaginous tissue comprising it, indentation of the thecal sac and the definition of minor injury, where injury to cartilage, which is what a disc is, is not a minor injury by reason of the statutory definition. If there is an approach which yields a different conclusion it should have been explained by the assessor. The assessor does not specify the process of reasoning or the actual path by which he arrived at a conclusion in direct conflict with the statutory definition.

25. Section 1.6 of the MAIA allows the making of regulations which "include a specified injury as a soft tissue injury": s. 1.6(4)(b) (or exclude a specified injury: s 1.6(4)(a) and 1.6(4)(b)). The MAIA empowered the making of regulation Pt 1 Cl 4(1) by which injury to a nerve root was deemed a soft tissue injury, noting that but for the regulation injury to a nerve would not be a minor injury. There is no regulation which makes a disc injury a soft tissue injury.

26. Subsection (5) of s.1.6 of the MAIA provides:

"The Motor Accident Guidelines may make provision for or with respect to the assessment of whether an injury is a minor injury for the purposes of this Act."

27. The power conferred by this subsection is one confined to “making provision for or with respect to assessment.” It does not empower making provision for or with respect to what is or is not a minor injury. Using the Motor Accident Guidelines (‘the guidelines’) to change the meaning of "minor injury" is not permitted. The mechanism for changing the meaning of minor injury is through amendment of the Act or Regulations. Given the significant consequences which altering the meaning of this term may have for a claimant's entitlements it is not surprising that a more formal and legally transparent mechanism has already been provided.

28. The assessor discarded the possibility of the injury being non-minor by reason of the absence of radiculopathy.

29. If clause 5.9 of the guidelines is read to recognise that the injury to the neck or spine with which it deals is one to the nerve roots it would not be ultra vires.

30. Clause 5.9 provides:

"Where the neurological symptoms associated with the injured person's injury of the neck or spine to nerve roots do not meet the assessment criteria for radiculopathy, the injury will be assessed as a minor injury."

31. If it is construed in this way, it provides "for or with respect" to the assessment of whether a nerve root injury is a minor injury and so is within s. 1.6(5) of the MAIA.

32. However, since the injury the plaintiff was assessed to be suffering was not a nerve root injury but a disc injury it had no role to play.

33. The next decision and the one to which judicial review is applicable to the subject of judicial review is that of the delegate.

The delegate’s decision dated 13 October 2022

34. The plaintiff applied for a review of the Medical Assessor's decision pursuant to s 7.26 of the MAIA. It relevantly reads:

7.26 Review of medical assessment by review panel

(1) A claimant or an insurer may apply to the proper officer of the Authority to refer a medical assessment under this Division by a single medical assessor to a review panel of medical assessors 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.

…

(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.

(6) The review of a medical assessment is not limited to a review of only that aspect of the assessment that is alleged to be incorrect and is to be by way of a new assessment of all the matters with which the medical assessment is concerned.

35. Section 63(7) of the Motor Accidents Compensation Act 1999 (NSW) is as follows:

(7)  An application under this section must be made within—

(a)  28 days after the parties to the medical dispute were issued with the original certificate for the medical assessment for which the review is sought, or

(b)  a longer period determined or allowed, whether generally or for the kind of proceedings, in accordance with the Commission rules.

36. Rule 133A(2) of the PIC Rules reads:

133A Extension of time for making certain applications

…

(2) A party seeking to make a relevant application after the end of the statutory period may make an additional application (an extension application) for an order determining a longer period within which the party may make the relevant application.

…

(5) The decision-maker may make the order if satisfied by the party making the extension application, in exceptional circumstances, that to lose the right to make the relevant application would work demonstrable and substantial injustice.

37. The grounds of judicial review in relation to the delegate’s decision 13 October 2023 are:

1. The delegate erred in failing to find exceptional circumstances in the filling out of time of an application to review the assessor’s certificate.

2. The delegate erred in applying an incorrect test in relation to the correctness of the assessor’s certificate.

The plaintiff’s submissions

38. The first consequence of a claimant suffering only "minor injury" is that he is not entitled to statutory benefits more than 26 weeks after the accident: MAIA s 3.11(1)(b). The second is that the claimant is not entitled to damages: MAIA s. 4.4. The current version of s 3.11 of the MAIA has been amended to 52 weeks after the accident.

39. Of the above assessments, the plaintiff challenged the Assessor’s decision by way of an application for review under s 7.26 of the MAIA. The delegate considered the application to have been lodged late and determined to refuse an extension of time because she considered it had minimal prospects of success.

40. The plaintiff challenges the certificate in so far as it determined that the injury to the cervical spine suffered by the plaintiff is minor, within the meaning of the MAIA. He also challenges the conclusion the application for review was lodged late and that the delegate was not justified in refusing the extension of time because of the application's limited prospects of success.

The decision of the delegate

41. Paragraphs [1]-[22] of the delegate’s decision reads as follows:

1. Yama Momand (the applicant), was injured in a motor accident on 19 January 2018. Allianz Australia Insurance Limited (the respondent) accepted the applicant's claim, under the Motor Accident Injuries Act 2017 (the Act).

2. There was a dispute between the parties as to whether the applicant's injury caused by the accident was a minor injury for the purposes of the Act. The dispute was referred to the Personal Injury Commission. Assessor Ian Cameron (the Assessor) conducted a medical assessment and determined in a certificate dated 24 July 2022 that the injury caused by the accident is a minor injury for the purposes of the Act.

3. The applicant seeks to have the assessment of the Assessor reviewed on the basis that it was incorrect in a material respect. The applicant relies on the particulars set out in the application and supporting documentation.

4. The respondent does not agree that a review is warranted in this matter and addresses the issues raised by the applicant.

5. Section 7.26 of the Act provides that if the President’s Delegate is satisfied that there is reasonable cause to suspect that the medical assessment was incorrect in a material respect, the review application will be referred to a Review Panel.

WAS THE APPLICATION LODGED ON TIME?

6. There is a preliminary issue regarding whether the application to refer the medical assessment to a review panel was lodged within time.

7. Section 63(7) of the Act states that an application to refer a medical assessment to a review panel must be made within (a) "28 days after the parties to the medical dispute were issued with the original certificate , or (b) "a longer period determined or allowed, whether generally or for the kind of proceedings, in accordance with the Commission rules".

8. The Certificate in this matter, was issued on the Personal Injury Commission's portal on 26 July 2022. Twenty-eight days from this date is 23 August 2022.

9. The application to refer the medical assessment to a review panel was lodged on 26 August 2022.

10. The application was lodged outside the 28-day time frame required under section 63(7) of the Act. The application was therefore lodged out of tine.

EXTENSION APPLICATION - RULE 133A

11. Rule 133A(2) of the Rules provides "[a] party seeking to make a relevant application [including an application under section 63 of the Act] after the end of the statutory period may make an additional application (an extension application) for an order determining a longer period within which the party may make the relevant application".

12. The applicant has made an extension application under rule 133A. The application complies with the relevant provisions for making such an application set out at subrule 133A(3) of the Rules.

13. Rule 133A(5) provides;

The decision-maker may make the order [determining a longer period within which the party may make an appiication] if satisfied by the party making the extension application, in exceptional circumstances, that to lose the right to make the relevant application would work demonstrable and substantial injustice.

14. Accordingly, there are two limbs in rule 133A(5) that I must consider:

a. Whether there are exceptional circumstances; and

b. Whether to lose the right to make the relevant application would work demonstrable and substantial injustice.

Are there exceptional circumstances?

15. The term "exceptional circumstances" is not defined in the Act or the Rules but has been the subject of much consideration by Presidential Members of the former Workers Compensation Commission as the term appears in its Rules: Rules 16.2(5) and 16.2(6) of the Workers Compensation Commission Rules 2011

16. In Sinitsky v Workpac Constructions Pty Ltd [2020] NSWWCCPD 61 (Workpac), Wood DP referred to Yacoub v Pilkington (Australia) Ltd [2007] NSWCA 290, where Campbell JA considered the expression "exceptional circumstances" before concluding:

(a) Exceptional circumstances are out of the ordinary course or unusual, or special, or uncommon. They need not be unique, or unprecedented, or very rare, but they cannot be circumstances that are regularly, routinely or normally encountered;

(b) Exceptional circumstances can exist not only by reference to quantitative matters concerning relative frequency of occurrence, but also by reference to qualitative factors;

(c) Exceptional circumstances can include a single exceptional matter, a combination of exceptional factors, or a combination of ordinary factors which, although individually of no particular significance, when taken together are seen as exceptional;

(d) In deciding whether circumstances are exceptional within the meaning of a particular statutory provision, one must keep in mind the rationale of that particular statutory provision, and

(e) Beyond these general guidelines, whether exceptional circumstances exist depends upon a careful consideration of the facts of the individual case.

17. Some recent practical guidance on "exceptional circumstances" can be found in the former Workers Compensation Commission decisions. In Department of Communities and Justice v Galea (13 January 2021) (Galea) Snell DP stated that "non-compliance with procedural requirements due to inadvertence or legal error resulting in an appeal being out of time will not render the circumstances 'exceptional'" (at [47]).

18. A list of factors to be considered in an application to extend time was summarised by Basten JA in Land Enviro Corp Pty Ltd v HTT Huntley Heritage Pty Ltd [2014] NSWCA 34 at [9] and applied by Snell DP Secretary, Department of Communities and Justice v Galea [2021] NSWWCCPD 1 (Galea) at [43]:

The primary considerations on an application for leave to extend time within which to appeal are:

(a) the extent of the delay and the reasons therefor;

(b) the prejudice to the applicant if the application were to be refused;

(c) the prejudice to the defendant from the delay if the application were to be granted;

(d) the prospects of success on the proposed appeal.

19. The applicant submits that while the review application was formally lodged more than 28 days after the date that the Certificate was issued, the submissions were posted on the Commission's portal on the due date of 23 August 2022.

20. The applicant submits that the application was "formally lodged late" because of technical issues with the Commission's portal when attempting to submit the application and submissions on 23 August 2022. The applicant has submitted a screen shot of the error presented on the portal on 23 August 2022.

21. The applicant submits that contact was made with the Commission on 23 August 2022 and further attempts were made to upload the application on 24 August 2022. The applicant provides copies of correspondence with the Commission. The applicant submits that after several repeated attempts, the applicant was finally able to upload the application and submissions on the Commission's portal on 26 August 2022.

22. I acknowledge the applicant's submissions in relation to the technical issues encountered and that attempts were made to lodge the application on 23 August 2022. For the reasons that follow, I have however formed the view, after a consideration of the grounds for the application to refer the medical assessment to a review panel, that the application does not have reasonable prospects of success. I consider this mitigates any prejudice arising from the loss of opportunity to lodge the application.

…

42. Under the heading ‘Injustice’, paragraphs [25]-[36] of the delegate’s decision then reads as follows:

“Demonstrable and substantial injustice

25. In the application to refer the medical assessment to a review panel, the applicant submits that the medical assessment was incorrect in a material respect on a number of grounds. I have considered the different grounds submitted by the applicant with respect to the prospects of success below.

26. The applicant submits that the Assessor failed to consider evidence of radiculopathy relating to the lumbar and cervical spine, that was present in the material before the Assessor. I have perused the material referred to by the applicant, including the GP clinical records, the reports of Dr Singh, report of Dr Tong and the imaging results, and note that there is no evidence that the Assessor's finding, that radiculopathy in accordance with clause 5.8 of the Motor Accident Guidelines (Version 8.2) Effective 8 April 2022 (the Guidelines) has not been present at any time after the accident, was incorrect.

27. The Certificate indicates that the Assessor considered all of the relevant evidence and conducted his own clinical examination and did not find radiculopathy as defined at clause 5.8 of the Guidelines present in the cervical spine, thoracic spine and the lumbar spine. I am not satisfied that there is reasonable cause to suspect that the Assessor failed to consider evidence of radiculopathy in accordance with the Guidelines, either in the material before him or in his own examination, for the purposes of the minor injury dispute.

28. The applicant submits that the Assessor failed to provide an adequate path of reasoning that there was no evidence of radiculopathy considering the evidence noted above, and particularly reasons as to why the evidence of the treating practitioner should be rejected. The applicant also refers to the Assessor's determination of "soft tissue injury" to the lumbar spine and cervical spine, and submits that in light of the pathology and evidence of disc injury post-dating the accident, some explanation was required as to why the injuries were determined to be soft tissue injuries.

29. I note that a reading of the Certificate as a whole indicates that the Assessor did not find evidence of radiculopathy in accordance with the definition and requirements for radiculopathy at clause 5.8 of the Guidelines. A finding of "radiculopathy" made by the applicant's GP or other medical practitioner is not evidence of radiculopathy as required by the Guidelines for the purposes of the minor injury assessment that was before the Assessor.

30. For similar reasons, while the Assessor notes the pathology indicating disc injury at the cervical and lumbar spine, I do not consider the Assessor was required to provide any further reasoning as to why he determined these injuries to be soft tissue injuries, for the purposes of the assessment he was conducting which related to minor injury only. I consider the Assessor has provided sufficient reasons as to why the injuries met the definition of minor injury for the purpose of the medical assessment that was before him.

..

36. On consideration of the grounds and particulars set out in the application to refer the medical assessment to a review panel, for the reasons outlined above, I consider that the application has little prospects of success. Therefore, I do not consider that to lose the right to make the application would work demonstrable and substantial injustice’.

The law – adequate reasons

43. The assessor was required to set out lawful reasons in accordance with their statutory obligations, forming their jurisdiction, which is informed by the common law. Section 7.23(7) of the Act relevantly reads:

“a certificate is to set out the reasons for any finding by the medical assessor or assessors as to any matter certified in the certificate in respect of which the certificate is conclusive evidence.”

44. In Wingfoot Australia Partners Pty Ltd v Kocak (2013) 252 CLR 480 (‘Wingfoot’) the High Court emphasised the need for a written statement of reasons given by a medical panel under the Accident Compensation Act 1985 (VIC) to explain "the actual path of reasoning" (at [55]):

“The standard required of a written statement of reasons given by a Medical Panel under s 68(2) of the Act can therefore be stated as follows. 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, that 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.”

45. The specific battleground between the parties may inform the content of the duty to give reasons. In Allianz Australia Insurance Ltd v Francica [2012] NSWSC 1577 (‘Francica’), Hall J said, at [17]-[18]:

“[17] The decision of the Court of Appeal in Campbelltown 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 McColl 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.”

46. In Allianz Australia Insurance Ltd v Cervantes [2012] NSWCA 244 at [19]-[22] , Basten JA (with whom McColl and Macfarlan JJA agreed) (‘Cervantes’) said:

“[19] In Dranichnikov v v Minister for Immigration & Multicultural Affairs [2003] HCA 26; 77 ALJR 1088, at [24], (Dranichnikov), Gummow and Callinan JJ stated:

[24] To fail to respond to a substantial, clearly articulated argument relying upon established facts was at least to fail to accord Mr Dranichnikov natural justice.

[20] A similar point was made by Kirby J at [86] referring to a passage in the judgment of Gaudron J in Re Minister for Immigration & Multicultural Affairs, Ex parte Miah (2001) 206 CLR 57; 179 ALR 238; [2001] HCA 22 at [81] (Miah) where, after noting that it was not always easy to distinguish an error of law which is jurisdictional from one that is not, her Honour continued:

[81] However, the present case is, in my view, a clear case of constructive failure to exercise jurisdiction. That is because the delegate failed to consider the substance of Mr Miah’s application and could only have failed to do so because he misunderstood what is involved in the Convention definition of “refugee”.”

The plaintiff’s submissions – was the application lodged in time?

47. On 23 August 2022 the plaintiff's solicitors took the steps necessary to lodge an application to review the Certificate using the Personal Injury Commission portal as required by the governing legislation: PIC Rules r 23.

48. The delegate was satisfied the plaintiff's solicitors took all the steps necessary, and which the plaintiff could take, to "lodge" the Application for Review of the Certificate within time: Delegate's decision at [22]”.

49. The delegate did not deal specifically with the primary submission of the plaintiff to the effect that having taken those steps the Application had been lodged within time. There is no determination by the delegate of the issue. The fact the delegate proceeds to the merits of the Application implies acceptance of, either,

1. The application having been made in time; or

2. The force of the argument as to the existence of "exceptional circumstances" within r 133A(2).

50. The delegate ought to have concluded the Application was lodged within time. The failure to come to this decision is an error of law on the face of the record because the delegate did not construe the PIC rules correctly. As a result, she should have held the Application to have been made within time and "remitted" the matter to allow the normal review procedure to occur. There is jurisdictional error because on the proper construction of the PIC rules the delegate was not confronted with the question as to extension of time for lodging the Application.

51. The PIC rules provide that a document lodged with the Commission is received at the time "of entering the information system at the Commission": r 26(1)(a). That time is when the application is submitted using the identified and mandated ECM since, on the evidence, whether it is accepted or not, it has entered the "information system".

52. Nothing more needed to be done by the plaintiff’s solicitors and nothing more could be done by them consistent with the rules. The fact the commission may not have processed "the application" on or within its computer system or that it did not have a hard copy of the application after lodgement does not mean the application was not lodged. In order to be lodged the application needed to do no more than enter the information system.

53. The plaintiff's primary contention is that the application was lodged on time and the usual review process should have been accepted.

54. The only question before the delegate was whether to extend time under 133A of the PIC rules. She was not charged with determining the application for review. This meant she was required to take a broader view of the question of injustice than she took because she was not the decision maker on the substantive application and such applications involve the subjective satisfaction of the president, or his delegate, as to the existence of reasonable cause to suspect error.

55. Neither of the ways of putting the test encompasses the actual gateway applied by the rules which requires, only, reason to suspect material error.

56. The proper test is that if there was any prospect of the president being satisfied as to error in the certificate the delay caused substantial injustice because the effect of the certificate was to terminate the plaintiff's rights to benefits of all types.

57. Review of the certificate would open the door to the plaintiff having her injury determined to be non-minor and entitle her to have her whole person impairment assessed, following which she may be entitled to damages.

58. The threshold for ordering a review was and is "reasonable cause to suspect that the medical assessment was incorrect in a material respect": MAIA s 7.26(5).

59. In practical terms the delegate was required to ask whether if time for the application were not extended the plaintiff would suffer demonstrable and significant injustice, the test of which was whether it was open to think the President might have reasonable cause to suspect material error. Since, for the reasons above, there was every chance of the President (or his delegate) being so satisfied, the delegate committed jurisdictional error and error on the face of the record by not posing the correct question for consideration.

60. Because the delegate was concerned with the merits of the certificate and was not confined to its lawfulness it is relevant to evaluate whether what the assessor said in the certificate was factually accurate. If it was not, then the delegate fell into error because the jurisdiction of the President under s. 7.26(5) pf the MAIA was to refer the matter whether the material error was factual or legal.

61. The proper officer should have had regard to in determining whether the President or his delegate could form the view there was reason to suspect the medical assessment was incorrect in a material respect, then there is jurisdictional error in that the Proper Officer determined the question of leave by reference to the wrong test but also failed to exercise jurisdiction when it was present.

Conclusion

62. The delegate stated at [8] to [10], the certificate in this matter was issued on the Personal Injury Commission’s portal on 26 July 2022. Twenty-eight days is 23 August 2022. The application to refer the medical assessment to a review panel was lodged outside the 28-day time frame required under s 63(7) of the MAIA. Hence the delegate determined that the application was lodged out of time.

63. The delegate set out the two limbs to consider when determining an extension of time applications that must be considered. They are:

1. whether there are exceptional circumstances; and

2. whether lose the right to make the relevant application would work demonstrable and substantial injustice.

64. The explanation for delay was that on 23 August 2022, the plaintiff’s solicitor made contact with the commission to try to upload the application. This solicitor was finally able to upload the application on 26 August 2022. Had the online filing system been operating as it should, the plaintiff’s application would have been lodged on the last day, that is day 28, which is in a stipulated time period.

65. At [22], the delegate acknowledged the applicant’s submissions in relation to technical issues encountered that attempts were made to lodge the application on 23 August 2022, but did not make a decision as to whether the application was lodged in time or whether in these circumstances, an extension of time to lodge the application should have been granted.

66. Rather, the delegate formed the view that after a consideration of the grounds for the application to refer the medical assessment to a review panel, that the application does not have reasonable prospects of success. The delegate considered that this mitigates any prejudice arising from the loss of opportunity to lodge the application.

67. The applicant put in issue before the delegate, the Assessor's determination of "soft tissue injury" to the lumbar spine and cervical spine and submits that considering the pathology and evidence of disc injury post-dating the accident, some explanation was required as to why the injuries were determined to be soft tissue injuries. As previously set out “soft tissue injuries are considered to be minor injuries”.

64. At [30], the delegate stated that while the Assessor notes the pathology indicating disc injury at the cervical and lumbar spine, he does not consider the Assessor was required to provide any further reasoning as to why he determined these injuries to be soft tissue injuries, for the purposes of the assessment he was conducting which related to minor injury only. They considered the Assessor has provided sufficient reasons as to why the injuries met the definition of minor injury for the purpose of the medical assessment that was before him.

Resolution

69. It is my view that the Assessor misdirected himself when he omitted to consider the entirety of the findings of the MRI scan to the plaintiff’s cervical spine, namely, an assessment of the individual disc levels throughout the cervical spine is notable for broad-based disc protrusion at C5/C6. This indents the ventral thecal sac and is not associated with central canal compromise. Had he fully appreciated the report of the MRI scan to the plaintiff’s cervical spine, he would have appreciated that there was a disc protrusion at C5/C6 and this indents the ventral sac. The ventral sac is a membranous sheath or tube of dura mater surrounding the spinal cord. A disc is comprised of cartilaginous material. This injury is not one that falls within the definition of a minor injury. In any event, the assessor did explain the relationship between a disc protrusion, the protrusion of disc material by reason of the partial or complete rupture of the cartilaginous tissue comprising it, indentation of the thecal sac and the definition of minor injury, where injury to cartilage, which is what a disc is, is not a minor injury by reason of the statutory definition. This ground of review was raised before the delegate.

70. As set out earlier, the Delegate’s response is that while the Assessor notes the pathology indicating disc injury at the cervical and lumbar spine, I do not consider the Assessor was required to provide any further reasoning as to why he determined these injuries to be soft tissue injuries, for the purposes of the assessment he was conducting which related to minor injury only. I consider the Assessor has provided sufficient reasons as to why the injuries met the definition of minor injury for the purpose of the medical assessment that was before him.

71. Further, I agree with the applicant that if there is an approach which yields a different conclusion it should have been explained in the reasons given by the assessor. The assessor does not specify the process of reasoning or the actual path by which he arrived at a conclusion in direct conflict with the statutory definition.

72. Additionally, the Guidelines cannot override the specific statutory provision which defined a rupture or partial rupture of cartilage to be a non-minor injury. To the extent it seeks to do so it is ultra vires.

73. However, before dealing with whether there was reasonable cause to suspect that the medical assessment was incorrect in a material respect, it was enough to find that the application was actually lodged in time. It is my view that the Delegate has erred in law on the face of the record. The certificate of the Delegate dated 13 October 2022, should be set aside.

74. The mater is remitted to the President of the Personal Injury Commission to be dealt with according to law.

75. It is my view that the delegate, had they properly addressed this issue, would have concluded that there were grounds that the assessment was incorrect in a material respect.

Costs

76. Costs are reserved. As the first defendant consented to the orders sought, the appropriate order for costs is that costs are reserved.

THE COURT ORDERS THAT:

1. The delegate’s decision dated 13 October 2022 is set aside.

2. The matter is remitted to the President of the Personal Injury Commission to be dealt with according to law.

3. Costs are reserved.

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Amendments

24 August 2023 - Name correction.

04 September 2023 - "Personal Injury Commissioner" amended to read "President of the Personal Injury Commission".

Decision last updated: 04 September 2023