Court of Appeal
New South Wales
Case Title: QBE Insurance (Australia) Ltd v Miller Medium Neutral Citation: [2013] NSWCA 442 Hearing Date(s): 3 December 2013 Decision Date: 18 December 2013 Before: Basten JA at [1];
Ward JA at [58];
Young AJA at [59]Decision: (1) Leave to appeal granted.
(2) Appeal dismissed with costs.
[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]
Catchwords: ADMINISTRATIVE LAW - judicial review, application for further assessment of medical dispute refused - whether preconditions in Motor Accidents Compensation Act 1999 (NSW), s 62 are jurisdictional facts - whether preconditions is the opinion of the proper officer, formed in accordance with law - identification of jurisdictional fact a question of statutory construction - whether opinion of the proper officer determined according to law
TORT - motor vehicle accident - determination of medical dispute - application for further assessment based on additional relevant information - application refused by proper officer of Motor Accidents Authority - whether decision should be set aside
WORDS & PHRASES - "additional relevant information" - "capable of having a material effect" - Motor Accidents Compensation Act 1999 (NSW), s 62Legislation Cited: Motor Accidents Compensation Act 1999 (NSW), ss 57, 58, 60, 61, 62, 63, 65, 131; Pt 3.4
Motor Accidents Compensation Amendment (Claims and Dispute Resolution) Act 2007 (NSW), Sch 1 [30]
Supreme Court Act 1970 (NSW), s 69Cases Cited: Australian Heritage Commission v Mount Isa Mines Ltd [1997] HCA 10; 187 CLR 297
Buck v Bavone [1976] HCA 24; 135 CLR 110
City of Enfield v Development Assessment Commission [2000] HCA 5; 199 CLR 135
Craig v South Australia [1995] HCA 58; 184 CLR 163
D'Amore v Independent Commission Against Corruption [2013] NSWCA 187; 303 ALR 242
Masters v McCubbery [1996] 1 VR 635
Minister for Immigration and Multicultural Affairs v Eshetu [1999] HCA 21; 197 CLR 611
Minister for Immigration and Multicultural and Indigenous Affairs v SGLB [2004] HCA 32; 78 ALJR 992
Plaintiff M70/2011 v Minister for Immigration and Citizenship [Malaysian Declaration Case] [2011] HCA 32; 244 CLR 144
The Queen v Collins; Ex parte ACTU-Solo Enterprises Pty Ltd (1976) 50 ALJR 471
The Queen v Connell; Ex parte Hetton Bellbird Collieries Ltd [1944] HCA 42; 69 CLR 407
R v Northumberland Compensation Appeal Tribunal; Ex parte Shaw [1952] 1 KB 338
Rodger v De Gelder [2011] NSWCA 97; 80 NSWLR 594
Timbarra Protection Coalition Inc v Ross Mining NL (1999) 46 NSWLR 55
Warehouse Group (Australia) Pty Ltd v Woolworths Ltd [2005] NSWCA 269; 141 LGERA 376
Woolworths Ltd v Pallas Newco Pty Ltd [2004] NSWCA…
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Details
- Case
- [2013] NSWCA 442
- Decision Date
CaseChat Overview and Summary
QBE Insurance (Australia) Ltd appealed a decision of the primary judge concerning an application for further assessment of a medical dispute under the *Motor Accidents Compensation Act 1999* (NSW). The dispute arose from a motor vehicle accident, and the application for further assessment was refused by the proper officer of the Motor Accidents Authority. The appeal concerned the proper interpretation of section 62 of the Act, which governs such applications.
The central legal issues before the court were whether the preconditions stipulated in section 62 of the *Motor Accidents Compensation Act 1999* (NSW) constituted jurisdictional facts, and if so, whether these preconditions required the opinion of the proper officer to be formed in accordance with law. The court was also required to determine the nature of the decision made by the proper officer and the scope of judicial review available for such decisions, particularly in relation to the concept of "additional relevant information" as contemplated by the Act.
The court reasoned that the identification of a jurisdictional fact is a matter of statutory construction. It considered the language of section 62, including amendments made by the *Motor Accidents Compensation Amendment (Claims and Dispute Resolution) Act 2007* (NSW), and the definition of a "medical dispute" under section 58. The court found that while information must be "additional" and "relevant" to potentially affect an outcome, these characteristics are interrelated and do not necessitate a segmented approach by the proper officer. The court ultimately dismissed the appeal.
The central legal issues before the court were whether the preconditions stipulated in section 62 of the *Motor Accidents Compensation Act 1999* (NSW) constituted jurisdictional facts, and if so, whether these preconditions required the opinion of the proper officer to be formed in accordance with law. The court was also required to determine the nature of the decision made by the proper officer and the scope of judicial review available for such decisions, particularly in relation to the concept of "additional relevant information" as contemplated by the Act.
The court reasoned that the identification of a jurisdictional fact is a matter of statutory construction. It considered the language of section 62, including amendments made by the *Motor Accidents Compensation Amendment (Claims and Dispute Resolution) Act 2007* (NSW), and the definition of a "medical dispute" under section 58. The court found that while information must be "additional" and "relevant" to potentially affect an outcome, these characteristics are interrelated and do not necessitate a segmented approach by the proper officer. The court ultimately dismissed the appeal.
Orders
Orders of the court
(1) Leave to appeal granted.
(2) Appeal dismissed with costs.
[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
For reasons which will be explained, it is by no means clear that the proper officer approached the exercise in the segmented manner just described. In principle, there was no need for her to do so. While it would be true that information which was not in any relevant respect "additional" to that already considered by the assessor, could not affect the outcome, it did not follow that the proper officer was required to work methodically through the characteristics as if they were each separate and independent of the others. On the contrary, they are clearly interrelated. That which is capable of affecting an outcome must be relevant; further, that which is properly described as "additional" must also be relevant.(c) nature of decision A critical issue in the present case is the nature of the review which may be undertaken of the decision of the proper officer. That in turn depends upon the nature of the decision itself. Section 62, as originally enacted, contained only sub-ss (1) and (2). The language of sub-s (1), permitting a matter to be "referred again" echoes the language of s 60 which deals with initial referrals in the following terms:60 Medical assessment procedures(1) A medical dispute may be referred to the Authority for assessment under this Part by either party to the dispute or by a court or claims assessor.(2) The Authority is to arrange for the dispute to be referred to one or more medical assessors. That section envisages referral by a party to the Authority, which then arranges an internal referral to an appropriate medical assessor or assessors. That language was not repeated in s 62, which may have led to the amendments inserting sub-ss (1A) and (1B), said by the Minister to be by way of clarification, by the Motor Accidents Compensation Amendment (Claims and Dispute Resolution) Act 2007 (NSW), Sch 1 [30]. That which may be referred for assessment under Pt 3.4 (for the purposes of s 62(1)) is a "medical dispute", identified in s 60(1) and defined to mean "a disagreement or issue to which this Part applies": s 57. Such matters are identified in s 58 in the following terms:58 Application(1) This Part applies to a disagreement between a claimant and an insurer about any of the following matters (referred to in this Part as medical assessment matters):(a) whether the treatment provided or to be provided to the injured person was or is reasonable and necessary in the circumstances,(b) whether any such treatment relates to the injury caused by the motor accident,(c) (Repealed)(d) whether the degree of permanent impairment of the injured person as a result of the injury caused by the motor accident is greater than 10%.(e) (Repealed)(2) This Part also applies to any issue arising about such a matter in proceedings before a court or in connection with the assessment of a claim by a claims assessor. In this case, the relevant matter was whether the degree of permanent impairment exceeded 10%: s 58(1)(d). Unless that figure were exceeded, no damages could be awarded for non-economic loss: s 131.
Ratio Decidendi
Legal Principle Established
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