Rodger v De Gelder
[2011] NSWCA 97
•20 April 2011
Court of Appeal
New South Wales
Case Title: Rodger v De Gelder & Anor Medium Neutral Citation: [2011] NSWCA 97 Hearing Date(s): 20 October 2010 Decision Date: 20 April 2011 Jurisdiction: Before: Beazley JA at [1];
McColl JA at [103];
Macfarlan JA at [104]Decision: 1. Grant leave to appeal;
2. Notice of appeal in the form contained in the draft notice of appeal to be filed in the Registry within 7 days of the date of judgment;
3. Appeal allowed;
4. Set aside orders made by Davies J on 18 December 2009;
5. Order that the summons of the first respondent Mr De Gelder filed on 27 August 2009 be dismissed;
6. Order that the first respondent pay the appellant's costs of the hearing of the summons at first instance and of the appeal, including any costs associated with the summons for leave to appeal;
7. The first respondent to have a certificate under the Suitors Fund Act 1951.
[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 - prerogative writs and orders - certiorari - reviewable decisions and conduct - medical assessment under Motor Accidents Compensation Act 1999 - whether trial judge erred in finding that decision maker asked herself the wrong question - question considered was whether the further information was capable of having a material effect on the previous assessment - correct question
ADMINISTRATIVE LAW - judicial review - prerogative writs and orders - certiorari - reviewable decisions and conduct - medical assessment under Motor Accidents Compensation Act 1999 - whether decision maker made a decision affecting rights
ADMINISTRATIVE LAW - judicial review - prerogative writs and orders - whether respondent waived right to seek prerogative relief - respondent not debarred on discretionary grounds from obtaining prerogative relief
Legislation Cited: Motor Accidents Compensation Act 1999
Motor Accidents Authority Medical Assessment GuidelinesCases Cited: Commonwealth v Verwayen [1990] HCA 39; 170 CLR 394
Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26; 197 ALR 389
F Hoffman-La Roche & Co AG v Secretary of State for Trade and Industry [1975] AC 295 at 320
Goodman v The Motor Accidents Authority of NSW and Anor [2009] NSWSC 875; 53 MVR 420
Hot Holdings Pty Ltd v Creasy [1996] HCA 44; 185 CLR 149
House v R [1936] HCA 40; (1936) 55 CLR 499
Immer (No 145) Pty Ltd v Uniting Church In Australia Property Trust (NSW) [1993] HCA 27; 182 CLR 26
Jones v Stones [1999] 1 WLR 1739
Maltais v Industrial Commission (NSW) (1986) 14 IR 367
McKee v Allianz Australia Insurance Limited [2008] NSWCA 163; 71 NSWLR 609
Minister for Immigration and Citizenship v SZMDS and Anor [2010] HCA 16; 240 CLR 611
Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259
R v Commonwealth Court of Conciliation & Arbitration; Ex parte Ozone Theatres (Aust) Ltd [1949] HCA 33; 78 CLR 389
R v Ross-Jones; Ex parte Beaumont [1979] HCA 5; 141 CLR 504
Re Refugee Review Tribunal; Ex parte Aala [2000] HCA 57; 204 CLR 82
Robinson v Campbell (No 2) (1992) 30 NSWLR 503
Sargent v ASL Developments Ltd [1974] HCA 40; 131 CLR 634
Singh v Motor Accidents Authority of NSW [2010] NSWSC 550
Solution 6 Holdings Ltd v Industrial Relations Commission (NSW) [2004] NSWCA 200; (2004) 60 NSWLR 558
Suttor v Gundowda Pty Ltd [1950] HCA 35; 81 CLR 418
Wilkie v Motor Accidents Authority of NSW [2007] NSWSC 1086; 48 MVR 509Texts Cited: Aronson, Dyer, Groves, Judicial Review of Administrative Action, 4th Ed, 2009
Meagher, Heydon, Leeming, Meagher, Gummow & Lehane's, Equity: Doctrines and Remedies, 4th ed, 2002Category: Principal judgment Parties: James Norman Barr Rodger (Appellant)
Adam Roy De Gelder (First Respondent)
Motor Accidents Authority of NSW (Second Respondent)Representation - Counsel: M A Robinson (Appellant)
A C Canceri (First Respondent)
Submitting appearance (Second Respondent)- Solicitors: Curwoods Lawyers (Appellant)
CMC Lawyers (First Respondent)
Crown Solicitors Office (Second Respondent)File number(s): 2009/297971 Decision Under Appeal - Court / Tribunal: - Before: Davies J - Date of Decision: 18 December 2009 - Citation: De Gelder v Motor Accidents Authority of NSW [2009] NSWSC 1173 - Court File Number(s) SC 30018/2009 Publication Restriction:
HEADNOTE
[This headnote is not to be read as part of the judgment]
The respondent was injured in a motor vehicle accident when a vehicle driven by the appellant collided with the respondent's vehicle. The respondent brought a claim for compensation under the Motor Accidents Compensation Act 1999 (the MAC Act). Pursuant to the assessment process under the MAC Act, he was assessed as having a whole person impairment greater than 10 per cent, entitling him to damages for non-economic loss. The respondent had been involved in three prior motor vehicle accidents, had suffered an injury at work, and suffered from osteoporosis. The earlier accidents were not considered in the original assessment.A subsequent application made by the appellant for further medical assessment was considered by the Proper Officer of the Motor Accidents Authority of NSW (Authority), who determined that the matter should be referred for further assessment. At the further assessment, the respondent was assessed as having a whole person impairment of less than 10 per cent, thus depriving him of an entitlement to damages for non-economic loss. His application for a review of the further assessment was refused.
In proceedings before Davies J in the Supreme Court, the respondent sought declarations and orders by way of prerogative relief, challenging both the validity of the determination of the Proper Officer to refer his claim for further review and the determination made on the further assessment. Davies J made orders in the nature of certiorari, removing the determinations into the Court and quashing those determinations. His Honour ordered that the matter be remitted to the Authority to be redetermined.The appellant appealed from Davies J's orders, contending that the trial judge:
(1)erred in finding that the Proper Office of the Authority asked herself the wrong question in deciding whether to refer the matter for further assessment; and
(2)erred in the exercise of his discretion in failing to have regard to the fact that the respondent participated in the further assessment process and sought a review of that assessment.
The appellant also contended that any action taken by a Proper Officer of the Authority under s 62 of the MAC Act did not involve the making of a decision that was amenable to judicial review. This point was not taken at trial but based upon Singh v Motor Accidents Authority of NSW.
Held per Beazley JA (McColl and Macfarlan JJA agreeing) allowing the appeal:
(1) The trial judge erred in finding that the Proper Officer of the Authority asked herself the wrong question:
(a) Referrals for assessments and further assessments under ss 60 and 62 of the MAC Act are made by application. Accordingly, it does no violence to cl 14.7 of the Guidelines to read the word "application" in the phrase "outcome of the application" as a reference to a previous assessment. Any other understanding of the provision makes a nonsense of the process required to be undertaken in the determination of referral for further assessment: [49].
(b) The consideration by the Proper Officer could only have been of the question whether the further information was capable of having a material effect on the previous assessment: [51].
(2) For certiorari to issue, it must be possible to identify a decision which has a discernable or apparent legal effect upon rights: [64], Hot Holdings Pty Ltd v Creasy. The task of the Proper Officer under s 62 involves making a decision that affects rights, as it is the outcome of the medical assessment that determines whether or not a person has an entitlement to non-economic loss. The decision of the Proper Officer as to whether the further information or deterioration in the injury is capable of having a material effect on the outcome of the previous assessment, "sufficiently determines or is connected" with that decision and is amenable to an order in the nature of certiorari: [70].
Singh v Motor Accidents Authority of NSW (not followed); Goodman v The Motor Accidents Authority of NSW and Anor (not approved).
(3) The concepts of acquiescence, election and waiver are legal concepts that potentially alter rights: [76], Commonwealth v Verwayen; Sargent v ASL Developments Ltd; Immer v The Uniting Church.
(4) It is well accepted that the grant of prerogative relief is discretionary: Dranichnikov v Minister for Immigration and Multicultural Affairs; Solution 6 Holdings Ltd v Industrial Relations Commission.
(5) A court exercising supervisory jurisdiction is entitled to the benefit of the findings of the court or tribunal which is subject of the application for review: [85], Solution 6 Holdings; R v Ross-Jones; Ex parte Beaumont ; Maltais v Industrial Commission (NSW). Once an internal appeal or review process has been exhausted, then subject to any relevant statute, an aggrieved party may move to challenge any excess of jurisdiction by way of an application for prerogative relief: [86].
(6) Where the processes mandated by the MAC Act are intended to provide a low cost and relatively expeditious means of recovering compensation, a party, by participating in a further medical assessment or a review, has not by that fact alone waived or abandoned a right to seek prerogative relief, so as to permit the refusal of relief on discretionary ground. Accordingly, the respondent's conduct was not of a nature that could properly give rise to an inference that he had abandoned his rights. The respondent was not debarred on discretionary grounds from obtaining prerogative relief because he had elected to engage in the further assessment: [91], [92].
(7) The question whether or not an election has been made involves factual considerations: [93]. A party who has a right of appeal in the court or tribunal whose orders are subject to judicial review is not confronted with mutually exclusive choices. Rather, a superior court with supervisory jurisdiction usually requires a party to first exhaust those other remedies: [92].Orders
(3)Grant leave to appeal;
(4)Notice of appeal in the form contained in the draft notice of appeal to be filed in the Registry within 7 days of the date of judgment;
(5)Appeal allowed;
(6)Set aside orders made by Davies J on 18 December 2009;
(7)Order that the summons of the first respondent Mr De Gelder filed on 27 August 2009 be dismissed;
(8)Order that the first respondent pay the appellant’s costs of the hearing of the summons at first instance and of the appeal, including any costs associated with the summons for leave to appeal;
(9)The first respondent to have a certificate under the Suitors Fund Act 1951.
Judgment
BEAZLEY JA : The first respondent, Adam De Gelder, was injured in a motor vehicle accident on 24 August 2005 (the motor vehicle accident), when a vehicle driven by the appellant, James Rodger, collided with the rear of Mr De Gelder's vehicle. Mr De Gelder made a claim for damages under the Motor Accidents Compensation Act 1999 (the MAC Act). Pursuant to the assessment process under the MAC Act, he was assessed as having a whole person impairment greater than 10 per cent. This was confirmed on review. The relevance of the assessment of 10 per cent was that it gave Mr De Gelder an entitlement to damages for non-economic loss: s 131.
On 28 November 2008, the Proper Officer of the Motor Accidents Authority of New South Wales advised the parties that she had considered an application by Mr Rodger for further medical assessment and she had determined that the matter was to be referred for further assessment. At the further assessment, Mr De Gelder was assessed as having a whole person impairment of less than 10 per cent, thus depriving him of an entitlement to damages for non-economic loss. Mr De Gelder applied for a review of the further assessment, but this was refused.
Mr De Gelder brought proceedings seeking declarations and orders by way of prerogative relief in the Supreme Court, challenging the validity of both the determination of the Proper Officer to refer his claim for a further review and the determination made on the further assessment. He sought orders that the respective decisions be quashed. Mr Rodger and the Motor Accidents Authority of New South Wales (the Authority), which is constituted pursuant to the MAC Act, s 198, were the defendants in the proceedings.
The trial judge, Davies J, made orders in the nature of certiorari removing the determinations into the Court and quashing those determinations. His Honour ordered that the matter be remitted to the Authority to be determined in accordance with the reasons of the Court and according to law.
Mr Rodger seeks leave to appeal from those orders. The summons for leave to appeal and the appeal were heard concurrently. The Authority has filed a submitting appearance. The application for leave to appeal was contested by Mr De Gelder, as the Authority had already acted upon the orders made by the trial judge and on 5 March 2010, determined that the matter be referred for further assessment. However, on 8 April 2010, upon the application of Mr Rodger, Davies J ordered that the Authority be restrained from hearing or determining an assessment arising from his orders.
In my opinion, leave to appeal should be granted. The further assessment has not been carried out and if the orders made by Davies J are set aside, the determination made on the basis of his orders will itself have no validity.
The statutory scheme
The MAC Act provides for a scheme of compulsory third-party insurance and payment of compensation relating to injuries sustained as a consequence of motor vehicle accidents. The objects of the Act include: to encourage early and appropriate treatment and rehabilitation: s 5(1)(a); to provide compensation for compensable injuries sustained in motor vehicle accidents and to encourage the early resolution of such claims: s 5(1)(b); and to keep third-party premiums affordable: s 5(1)(d). Section 5(2)(b) provides that the law relating to the assessment of damages in claims under the Act should be interpreted and applied in a way that acknowledges the clear legislative intention to restrict the level of non-economic loss compensation in cases of minor injuries.
The MAC Act, Ch 3 deals with motor accident injuries. Pursuant to s 44, the Authority may issue guidelines, known as the MAA Medical Guidelines, with respect to, inter alia, the assessment of the degree of permanent impairment of an injured person as a result of an injury caused by a motor accident: s 44(1)(c); and the procedures for the referral of disputes for assessment or review of assessments: s 44(1)(d).
Part 3.4 deals with the medical assessment of claims. Pursuant to s 59, the Authority is required to appoint medical assessors for the purpose of conducting medical assessments under the MAC Act. Section 60 provides that a medical dispute may be referred to the Authority for assessment by either party to the dispute or by a court or claims assessor and the Authority is to arrange for the dispute to be so referred. As this matter relates to a referral by a party, reference will only be made hereafter to such referrals.
A medical assessor to whom a medical dispute is referred is required to give a certificate as to the matters referred for assessment: s 61(1). Any such certificate is conclusive evidence as to the matters certified, relevantly, in any assessment by a claims assessor in respect of the claim concerned: s 61(2). There are exceptions to s 61(2) which are not presently relevant.
A matter referred for medical assessment under Pt 3.4 may be referred for assessment on one or more further occasions: s 62. As s 62 is central to the issue on appeal, I set out its terms in full:
"62 Referral of matter for further medical assessment
(1) A matter referred for assessment under this Part may be referred again on one or more further occasions in accordance with this Part:
(a) by any party to the medical dispute, but only on the grounds of the deterioration of the injury or additional relevant information about the injury...
(1A) A matter may not be referred again for assessment by a party to the medical dispute on the grounds of deterioration of the injury or additional relevant information about the injury unless the deterioration or additional information is such as to be capable of having a material effect on the outcome of the previous assessment.
(1B) Referral of a matter under this section is to be by referral to the member of staff designated by the Authority for the purpose (in this Part referred to as the proper officer of the Authority).
(2) A certificate as to a matter referred again for assessment prevails over any previous certificate as to the matter to the extent of any inconsistency."
Section 63(1) provides that a party to a medical dispute may apply to the Proper Officer to refer a medical assessment undertaken by a single medical assessor to a review panel of medical assessors for review. The Proper Officer must refer the matter to a review panel of at least three medical assessors, but only if the Proper Officer 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: s 63(3). The review panel may either confirm the certificate of assessment of the single medical assessor, or revoke that certificate and issue a new certificate: s 63(4).
Section 65 provides that medical assessments under Pt 3 are subject to relevant provisions of the Guidelines relating to the procedures for the referral of disputes for assessment or review of assessments and the procedure for assessment.
Part 4.4 deals with claims assessment and resolution. Pursuant to s 98, the Motor Accidents Claims Assessment and Resolution Service (CARS) has been established. CARS consists, relevantly, of claims assessors, whose function is to conduct the assessment of claims under Pt 4.4.
The Authority has issued Medical Assessment Guidelines under the MAC Act, s 44(1)(d). The Guidelines relevant to this matter were gazetted on 11 July 2008. Chapter 14 of the Guidelines deals with applications for further medical assessment pursuant to s 62(1)(a) as follows:
" Applications (MAS forms 4A and 4R)
14.1 An application by either party for further assessment of a medical dispute referred to in section 62 ( 1)(a), or a reply to an application by either party, must:
14.1.1 be in the form approved by the Authority; or
14.1.2 be in a form as directed by the Registrar or Proper Officer; and
14.1.3 set out or be accompanied by the particulars and information required by that form or as otherwise directed by the Registrar or Proper Officer.
14.2 An application for further assessment of a medical dispute may be lodged by either party but only after:
14.2.1 that dispute has previously been assessed by a MAS Assessor;
14.2.2 all certificates pertaining to that dispute have been issued (including combined certificates and Review Panel certificates);
14.2.3 the time period for lodging an application for either a correction of an obvious error or review, arising from the original assessment of that dispute has expired; and
14.2.4 any application for correction of an obvious error or for a review of the assessment of the dispute has been completed; and
in any case when the requirements of section 62(1) may be established.
Proper Officer determination
14.3 The Allocation Review of an application for further assessment is to be conducted in accordance with Chapter 9.
14.4 When conducting an Allocation Review of an application for further assessment pursuant to Chapter 9, the Proper Officer is to determine whether the application is suitable for referral for further assessment.
14.5 When determining whether a matter should be referred for further assessment under section 62(1)(a) whilst conducting an Allocation Review, the Proper Officer shall have regard to:
14.5.1 the application and any reply;
14.5.2 any other applications and replies and/or MAS certificates on this medical dispute or any other medical disputes at MAS in relation to the same claimant, not limited to the same matter, after the parties have been provided with a copy of these documents; and
14.5.3 the objects of the Act and the objects of MAS.
14.6 For the purposes of section 62(1A) the word 'material' includes that it is relevant and capable of altering the outcome of a dispute about:
14.6.1 reasonable and necessary treatment, from 'not reasonable and necessary' to 'reasonable and necessary' or vice versa;
14.6.2 related treatment, from 'not related' to 'related' or vice-versa; or
14.6.3 permanent impairment, from 'not greater than 10% whole person impairment' to 'greater than 10% whole person impairment' or vice-versa.
14.7 If the Proper Officer is not satisfied that the deterioration of the injury or the additional relevant information about the injury would have a material effect on the outcome of the application, the Proper Officer may dismiss the application.
14.8 The Proper Officer is to provide the parties with brief written reasons for the decision at the same time as, or as part of the notification to the parties, of the outcome of the Allocation Review as required by clause 9.2.
Assessment of further applications
14.9 When the Proper Officer decides to refer a matter for further assessment, the Proper Officer shall determine how the application is to proceed in accordance with the provisions of Chapter 9 and, in particular, determine an appropriate Medical Assessor or Assessors to conduct the further medical assessment, also having regard to,
14.9.1 the application and any reply;
14.9.2 all injuries assessed by the original Assessor and any additional injuries listed in the application and reply;
14.9.3 the nature of the deterioration of the injury or the additional relevant information submitted by the parties;
14.9.4 the requirement that in permanent impairment disputes, impairment resulting from a physical injury is to be assessed separately from any impairment resulting from psychiatric or psychological injury; and
14.9.5 any other applications and replies and/or MAS certificates on this medical dispute or any other medical disputes at MAS in relation to the same claimant, not limited to the same matter, after the parties have been provided with a copy of these documents.
14.10 When the Proper Officer decides to refer a dispute for further assessment, the dispute may be referred to the original Assessor if available within a reasonable period and if, in the Proper Officer's view, it is appropriate in the circumstances, otherwise the dispute may be referred to a different Assessor.
14.11 An officer of MAS will provide the Assessor or Assessors with the information referred to in clause 9.11.5 as well as:
14.11.1 the written reasons for accepting the further assessment application under clause 14.8; and
14.11.2 any other applications and replies and/or MAS certificates on this medical dispute or any other medical disputes at MAS in relation to the same claimant, not limited to the same matter, after the parties have been advised of the details of these documents.
14.12 The further assessment will involve consideration of all aspects of the assessment afresh subject to this clause and clause 14.13, and may include:
14.12.1 assessment of all the injuries assessed by the original Assessor in any previous assessment of this dispute; and
14.12.2 any additional injuries listed on the application for further assessment and any reply.
14.13 In permanent impairment disputes, where the deterioration of the injury or the additional relevant information:
14.13.1 relates to physical injury, the further assessment will be limited to consideration of the physical injury; and
14.13.2 relates to psychiatric or psychological injury, the further assessment will be limited to consideration of the psychiatric or psychological injury."
The background to the proceedings
Mr De Gelder claimed he sustained injuries to his thoracic and lumbar spine in the motor vehicle accident when Mr Rodger's vehicle collided with the rear of his vehicle. He also sustained injuries to his shoulder, both wrists and elbows and his leg and left knee.
Mr De Gelder had been involved in three prior motor vehicle accidents, but claimed he only sustained injury, namely, a mild whiplash injury, in the second of those accidents, on 25 February 2002. He claimed that that injury had resolved by the time of the motor vehicle accident on 24 August 2005. The third prior accident occurred on 23 August 2005, the day before this accident. Three months after the motor vehicle accident on 24 August 2005, Mr De Gelder suffered an injury at work to his lower back when loading an air-conditioning unit into the back of a car. In the year following the motor vehicle accident, Mr De Gelder was diagnosed with osteoporosis. The trial judge observed that a number of fractures that Mr De Gelder had suffered as a child may have been an early manifestation of this condition.
The first medical assessment was conducted by Dr John Graham who determined that Mr De Gelder's injuries had stabilised and that the degree of whole person impairment was 20 per cent. Dr Graham also determined that Mr De Gelder had recovered from any lower back injury sustained in the motor vehicle accident by the time that he had the work related accident on 30 November 2005. On 10 October 2008, Dr Graham issued a certificate as required by s 61 which set out his findings.
On 2 June 2008, a Review Panel revoked the certificate issued by Dr Graham pursuant to s 63(4) and issued a new certificate certifying that Mr De Gelder had suffered injuries to his thoracic and lumbar spine caused by the motor accident and that he had a whole person impairment greater than 10 per cent. The Review Panel used the statutory language of " greater than 10% ", rather than specifying the actual percentage of whole person impairment, as Dr Graham had done, but otherwise confirmed Dr Graham's assessment.
The Review Panel had available to it the clinical notes of Mr Angelopoulos, chiropractor, who treated Mr De Gelder following the work injury in December 2005. The Review Panel was also aware of two of the prior motor vehicle accidents in which Mr De Gelder had been involved. There was no mention in the Review Panel's report of the accident on 23 August 2005.
X-ray and radiological evidence revealed that Mr De Gelder had wedging of the fourth and fifth thoracic vertebrae, that the compression at T5 was greater than 20 per cent and that there was up to 30 per cent loss of anterior vertebral body height at approximately T5/T7. However, there was an issue, both before Dr Graham and before the Review Panel, as to the cause of this injury. Dr Graham concluded that the injury to the thoracic spine was caused by the motor vehicle accident, as did the Review Panel.
Mr De Gelder's claim for compensation was referred for a CARS assessment pursuant to Pt 4.4, Div 2. The CARS assessment commenced on 12 September 2008. On the second day of the assessment, Mr Rodger applied for and was granted an adjournment to lodge an application for a further medical assessment. That application was lodged on 9 October 2008.
In his submission in support of the application for a further medical assessment, Mr Rodger referred to the three previous motor vehicle accidents in which Mr De Gelder had been involved, noting that one of those accidents had been on 23 August 2005, the day before the accident subject of the claim. Mr Rodger contended in his application that the history recorded by the Review Panel made no reference to the prior accidents. Mr Rodger also referred to a recent medical report that had been obtained from Dr Maxwell, in which the doctor stated that he had never seen a compression fracture of the thoracic spine caused by a rear end collision. In addition, Mr Rodger referred to the clinical notes of Mr Angelopoulos, which revealed that Mr De Gelder had not sought medical attention for his back pain arising from the motor vehicle accident on 24 August 2005 prior to sustaining the injury at work on 30 November 2005.
Mr De Gelder opposed the application for further assessment and provided written submissions and other material in support of his opposition.
In the letter of 28 November 2008 (see [2] above), the Proper Officer stated that the information supporting the application for further assessment " may have a material effect on the outcome of the application " (the first decision). The Proper Officer identified the additional information as being " the existence of several other accidents, previously not considered for causation of the spine injury by a MAS assessor ". She advised that the matter would be referred for further medical assessment of the dispute relating to permanent impairment of the spine.
On 2 December 2008, the Proper Officer advised the parties that a further assessment was to be undertaken by an assessor, Dr Trevor Best (the second decision).
On 4 December 2008, Mr De Gelder's solicitors advised the Authority by letter that Mr De Gelder would not be attending the further assessment to be conducted by Dr Best. They stated it was Mr De Gelder's intention to commence proceedings in the Supreme Court as there was no basis for the application for further assessment and, in any event, the matter should have been referred back to the original assessor, Dr Graham. The solicitors enclosed a draft summons with their letter. The relief claimed in the draft summons was a declaration that the decision to refer the matter for further assessment be quashed, or alternatively, that it be referred back to the original assessor. However, no summons was filed at that time and on 19 January 2009, Mr De Gelder attended the further assessment with Dr Best.
On 30 January 2009, Dr Best issued a certificate stating that the degree of permanent impairment as a result of the injury caused by the motor accident was not greater than 10 per cent. He classified the injuries sustained in the accident as soft tissue injuries. In his reasons, Dr Best reported that x-ray examination of the thoracic spine suggested osteoporosis and wedging of the body of T5 and T6. Dr Best explained that the wedge appearance could be developmental, it could occur slowly and spontaneously where osteoporosis was present, or it could be related to compression injury producing compression fractures.
Dr Best concluded that there was no evidence that the wedge deformity had been caused by a compression fracture. He noted that Mr De Gelder's vehicle had been struck from the rear, which would cause an extension injury and not a compression injury to the thoracic spine. Dr Best also observed that Mr De Gelder had been involved in " many motor vehicle injuries other than the subject matter vehicle accident and has had many manipulations of the spine carried out (in the presence of osteoporosis) ". Dr Best concluded there was no evidence that linked the wedge deformity with the motor vehicle accident. Dr Best also expressed the view that Mr De Gelder's lumbar spine disability was caused by the work accident on 30 November 2005.
On 18 March 2009, Mr De Gelder applied for a review of Dr Best's assessment and on the same day, filed a summons in the Supreme Court seeking declaratory and other orders by way of prerogative relief. It is the orders made on that summons which are the subject of the present appeal. The application for a review of the further assessment was rejected by a Proper Officer of the Authority on 24 April 2009.
Issues on the appeal
On the hearing of the summons in the Supreme Court, Mr De Gelder contended that he was entitled to an order in the nature of certiorari on the following bases: that the Proper Officer asked herself the wrong question under s 62; that the Proper Officer committed jurisdictional error by considering irrelevant material and by failing to consider relevant material; and that the Proper Officer committed jurisdictional error in failing to refer the further assessment to Dr Graham. There were also discretionary issues raised as to whether relief should be granted in circumstances where Mr De Gelder had participated in the further assessment process.
Of the issues argued before the primary judge, only two remained in contention on the appeal. Mr Rodger contended first that his Honour erred in finding that the Proper Officer asked herself the wrong question (the wrong question issue); and secondly, that his Honour erred in the exercise of his discretion in failing to have regard to the fact that Mr De Gelder participated in the further assessment process and sought a review of that assessment (the discretionary issue).
By his amended summons and amended draft notice of appeal, Mr Rodger raised a third issue, not argued before the primary judge, namely, any action taken by a Proper Officer of the Authority under s 62 does not involve the making of a decision that is amenable to judicial review. Rather, an officer acting under s 62 is engaging in a procedural task in compliance with the MAC Act. This ground was based on the decision of Rothman J to that effect in Singh v Motor Accidents Authority of NSW [2010] NSWSC 550 especially at [42], which was delivered after Davies J gave judgment in the present matter.
The wrong question issue
From the terms in which the Proper Officer wrote to the parties on 28 November 2008 when she advised that there was to be a further assessment, Davies J, at [25], identified the question that the Proper Officer asked herself as follows:
"Am I satisfied that the additional relevant information may have a material effect on the outcome of the application for further assessment?"
His Honour held that this was not the question required to be asked for the purposes of s 62.
If his Honour was correct in his identification of the question asked by the Proper Officer, then he was correct to conclude that it was the wrong question.
In order to understand his Honour's reasoning, it is necessary to set out the relevant portions of the letter in full:
"I have considered the application for further assessment, the reply and all supporting documentation submitted in this matter.
The application is based on additional relevant information about the injury. I am satisfied this information may have a material effect on the outcome of the application.
The existence of several other accidents, previously not considered for causation of the spine injury by an MAS assessor.
The matter will now be referred for further medical assessment of the dispute relating to permanent impairment of the spine.
In accordance with clause 14.12 of the Medical Assessment Guidelines the further assessment will involve consideration of all aspects of the original Assessor's assessment afresh and will include all injuries assessed by the original Assessor and any additional injuries listed on the application or reply. Injuries considered by other Assessors will not be reassessed if there is no additional relevant information about them or if deterioration is not addressed in the application.
The following injuries will be assessed in the further assessment:
· Cervical Spine - Soft tissue Injury / nerve injury / orthopaedic injury
· Thoracic Spine - Soft tissue Injury / nerve injury / orthopaedic injury / fractures
· Lumbar Spine - Soft tissue Injury / nerve injury / orthopaedic injury / fractures
· Right Shoulder - Soft tissue Injury / orthopaedic injury
· Right Wrist - Soft tissue Injury / orthopaedic injury
· Right Elbow - Soft tissue Injury / orthopaedic injury
· Left Wrist - Soft tissue Injury / orthopaedic injury
· Left elbow - Soft tissue Injury / orthopaedic injury
· Left leg / Left Knee - Soft tissue injury / orthopaedic injury
An officer of [the Authority] will be in contact with you shortly to advise of the details of any medical appointment(s) organized." (original emphasis)
His Honour considered that when the Proper Officer used the expression " the outcome of the application " at the end of the second paragraph of the letter, the Proper Officer was referring to the application for further assessment made by Mr Rodger on 9 October 2008. His Honour observed that it was not apparent how the Proper Officer determined that the additional relevant information may have had a material effect on that application. However, his Honour concluded that the Proper Officer had not determined the impact of the further information on the original assessment conducted by Dr Graham.
His Honour considered that the question the Proper Officer asked was derived directly from the language used in cl 14.7 of the Guidelines and in particular, the reference in that clause to " whether the additional relevant information about the injury would have a material effect on the outcome of the application ". In this regard, the language of cl 14.7 is to be contrasted with the legislative mandate in s 62(1A) which specifies that a matter may not be referred again for assessment on the grounds of additional relevant information unless that information " is capable of having a material effect on the outcome of the previous assessment ".
Having regard to the language used by the Proper Officer, which mirrored cl 14.7, his Honour considered that the Proper Officer asked the wrong question. His Honour was fortified in giving this construction to the Proper Officer's letter on the basis that it was unusual that a word used twice in the same sentence would bear a different meaning. The question the Proper Officer was required to ask pursuant to the terms of s 62(1)(a) was whether the additional information upon which Mr Rodger relied in his application for further assessment " was capable of having a material effect on the outcome of the assessment carried out by Dr Graham and subsequently reviewed by the Review Panel ", that is, the previous assessment (at [26]). There is no doubt that that was the question that called for decision under s 62. Accordingly, it is necessary to determine whether the Proper Officer asked herself that question, or the question that Davies J identified (set out at [34] above).
Mr Rodger submitted that his Honour, in identifying the question in the terms he did, misconstrued what the Proper Officer had said in the letter of 28 November 2008. He submitted that contrary to his Honour's understanding, the statement in the letter, that the information may have a material effect on the outcome of the application, was a reference to the outcome of the referral for medical assessment. In other words, the Proper Officer was plainly asking herself whether the additional information may have a material effect on the outcome of the existing medical assessment, which was the matter that had to be determined under s 62.
Mr De Gelder argued that Mr Rodger should not be permitted to argue this issue on appeal as it had been conceded in the Court below that the Proper Officer had asked the wrong question: see Robinson v Campbell (No 2) (1992) 30 NSWLR 503. Mr Rodger did not accept that any such concession was made. It is necessary in the first instance, therefore, to determine whether the concession was made.
At trial, Mr Rodger acknowledged that there was a difficulty with the language of cl 14.7 in that it did not reflect the statutory language of s 62. However, Mr Rodger refrained from answering the submissions made in the Court below by the Authority, which had contended that there was no difference of substance between the language used in s 62 and cl 14.7 respectively, so that the Proper Officer must have applied the correct statutory test. The transcript reveals that Mr Rodger's argument was that even if the Proper Officer asked the wrong question, that was not sufficient for the grant of prerogative relief.
It is arguable that by formulating his argument that way, Mr Rodger may have impliedly made the concession as submitted by Mr De Gelder. However, the construction of the Proper Officer's letter had been raised by the Authority and so was before his Honour for consideration. Mr De Gelder made submissions in respect of that question. In those circumstances, there is no restraint on the Court in now determining the matter, even if Mr Rodger has shifted position on this issue. Robinson v Campbell (No 2), upon which Mr De Gelder relied, was different, in that the argument sought to be raised in that case on appeal had not been argued in the Court below at all and the Court applied the principles in Suttor v Gundowda Pty Ltd [1950] HCA 35; 81 CLR 418.
Having regard to the approach taken by Davies J in the Court below, it is necessary to look at the referral provisions of the MAC Act and the Guidelines in order to determine whether the Proper Officer asked herself the wrong question.
Under the MAC Act, a party makes a " claim " for compensation and parties have the right to have a matter referred for medical assessment: s 60. The Guidelines, Div 2 deals with " Primary Application Types ". Division 2, Ch 8 provides that a referral of a medical dispute for medical assessment is to be by " application ". When a matter is referred for medical assessment, the medical assessor is to issue a certificate as to the matters referred for assessment. This may be, but is not limited to, giving a certificate as to whether a person has sustained a whole person impairment of greater or less than 10 per cent as a result of injuries sustained in the motor vehicle accident.
A party may also refer a matter for further assessment: s 62(1)(a). The Guidelines, Div 4, which contains Ch 14, deals with further assessment and review applications and requires that an application for further assessment is to be by application in the approved form. Relevantly for present purposes, the word " application " is used twice in cl 14.7 (see at [15] above). Used in the phrase " may dismiss the application ", the reference is clearly to the application for further assessment. That leaves for consideration the word " application " in the phrase " whether the additional material would have a material effect on the outcome of the application ". Is that a reference to the application for further assessment itself, or something else? Section 62(1A) requires that the additional information must be such as to be capable of having a material effect " on the outcome of the previous assessment ". Accordingly, to comply with s 62, the something else must be a reference to " the outcome of the previous assessment ".
The construction favoured by the trial judge was that the reference in cl 14.7 to the outcome of the application, was to the application for further assessment. His Honour did not fully analyse why that was so other than because of the use of the word " application " throughout cl 14.7. It is possible that his Honour's approach finds support in Ch 14 itself, which deals only with applications for further assessment. Further support might arguably also be found in the final reference to " application " in cl 14.7 in the phrase, " the Proper Officer may dismiss the application ", there meaning, indisputably, " the application for further assessment ".
However, cl 14.7, on that construction, would operate strangely in the context of s 62 and, in particular, s 62(1A) and Ch 14 as a whole. A party's purpose in making a referral for further assessment is to obtain a determination as to whether some additional information or some deterioration in the condition will result in a different assessment from that already given. It is the task of the Proper Officer under Ch 14 to make a determination about the referral for further assessment, relevantly by dismissing it: cl 14.7; or by permitting the matter to go forward, in which case the provisions of cl 14.9 come into play. Clause 14.9 does not suffer from the same linguistic difficulty as does cl 14.7, as it refers to the Proper Officer deciding to refer the matter " for further assessment ". Given the provisions of s 62 and the terms of cl 14.9, it would be strange if the task of the Proper Officer under cl 14.7 was to dismiss the application for referral if the additional information or deterioration in the condition would not have a material effect on the application for referral. The circuity of the construction tends strongly against that construction being correct.
The Guidelines should be construed in a practical, commonsense way. When it is understood that referrals for assessments and further assessments are made by application, it does no violence to cl 14.7 to read the word " application " in the phrase " outcome of the application " as a reference to the previous assessment. Indeed, any other understanding of the provision makes a nonsense of the process required to be undertaken in the determination of referral for further assessment.
Once the construction of cl 14.7 favoured by his Honour is rejected, it is necessary to consider what the Proper Officer in fact did in determining the application. That necessitates returning to the terms of the letter of 28 November 2008.
If the letter was intending to refer to the outcome of the application for further assessment itself, it would suffer from the same circularity that would affect cl 14.7 if the approach to that clause taken by his Honour was adopted. In any event, there are two telling aspects of the letter of 28 November 2008, which also militate against the construction given to it by his Honour. First, although the letter uses the word " application " when, as a matter of clarity, it should have referred to the " effect on the outcome of the previous assessment ", in the bolded paragraph, the letter refers expressly to the existence of other accidents not considered by an MAS assessor. The consideration by the Proper Officer, therefore, could only have been of the question whether the further information was capable of having a material effect on the previous assessment. Secondly, the succeeding paragraphs of the letter are directed to the further assessment. These paragraphs would have been surplusage if the Proper Officer was not directing her attention to the question raised by s 62.
Accordingly, I would uphold this challenge to his Honour's determination.
The decision in Singh v Motor Accidents Authority of NSW
On 28 May 2010, Rothman J delivered his decision in Singh v Motor Accidents Authority of NSW in which his Honour held that an order in the nature of certiorari will not issue to quash a 'decision' of a Proper Officer of the Authority referring a matter for further medical assessment. His Honour held that where there had been a referral for further medical assessment by a party pursuant to s 62(1)(a), the role of the Proper Officer was to arrange the further medical assessment. That task, in his Honour's view, was an administrative act akin to a programming or listing of the further medical assessment into the work of the Authority: see at [24], [25]. His Honour reiterated at [26], that the role contemplated for the Proper Officer under, relevantly, s 62 is a procedural role, not an administrative or jurisdictional gateway through which the parties were required to pass. His Honour relied upon the decision of Hoeben J in Goodman v The Motor Accidents Authority of NSW and Anor [2009] NSWSC 875; 53 MVR 420 in reaching this determination.
In Goodman, the applicant sought to have a 'decision' of a Proper Officer of the Authority, allegedly made under s 60, declared invalid and quashed. The insurer had referred the matter for further medical assessment and the Authority determined that the application satisfied the requirements of s 62. There was no challenge to the Authority's decision to refer the matter for further medical assessment. The matter proceeded before Hoeben J on the basis that the process for arranging a further assessment under s 62 was provided for in s 60(2). Under the Guidelines in force at that time, a party could apply to the Proper Officer to have the matter reallocated to a different assessor than that arranged by the Authority. There was a dispute about that process, which was the subject of the application for review before Hoeben J.
Hoeben J, at [57], characterised the function of the Authority under s 60(2) as purely administrative. His Honour stated that in arranging for the assessment of a medical dispute to be undertaken (including for a further medical assessment), the Proper Officer was not affecting rights, but merely taking a step which enabled the matter to go forward to the medical assessor who made a final determination. Accordingly, it was the determination of the medical assessor that affected rights, not the steps involved in making the arrangement for the medical assessment.
Although the decision in Goodman related to the nature of the function performed under s 60(2), Rothman J, in Singh, considered that Goodman supported the proposition that the functions of the Proper Officer under s 62 were also procedural. In his Honour's view, a determination under s 62 that the conditions in s 62(1A) had been satisfied, did not determine, authoritatively or otherwise, the validity of the referral by the party for a further medical dispute.
Rothman J then considered whether an order in the nature of certiorari could be made against the Proper Officer in respect of a decision made under s 62. His Honour said, at [35], that the overall effect of s 62 was that a party to the medical dispute " referred " a matter for further medical assessment: see the terms of s 62(1)(a). In his Honour's opinion, s 62(1) did not provide for a party to make an " application " for a referral. As I explain below, this is not correct, as the procedures for a referral for further assessment are contained in the Guidelines, Ch 14.
Rothman J acknowledged that under s 62, the Proper Officer was entitled to decide whether there had been a referral, that is, whether the statutory pre-conditions specified in s 62(1)(a) had been satisfied. If the Proper Officer determined that the statutory preconditions had been satisfied, then, on his Honour's view, the Proper Officer engaged in the procedural task of arranging for the further medical assessment before a medical assessor. His Honour considered that the determination of whether the statutory preconditions had been satisfied was a decision only for the purpose of ascertaining whether the statute required the Proper Officer to undertake the procedural task of arranging for a further medical assessment.
His Honour accepted, at [37], that the mere fact that the task was purely administrative in nature did not conclude the question whether certiorari was an available remedy. His Honour said an order in the nature of certiorari will only issue where the body or person that performed the challenged act was required to act judicially. His Honour said, at [39], that liability under the MAC Act depended upon the outcome of the medical assessment, not upon the referral for medical assessment. The Proper Officer, when undertaking any task pursuant to s 62 was not affecting the rights of the parties.
Rothman J concluded, at [41], that under s 62, the Proper Officer was not required to act judicially, but was required to take a purely procedural step and did not make a decision that affected the rights of the parties. His Honour reiterated that the rights of parties were granted by the MAC Act itself, not by the decision of the Proper Officer. The terms in which his Honour stated this proposition were:
"The rights of the parties are conferred by the provisions of s 62(1) and s 62(1A) of [the MAC Act] and not otherwise. And... those rights would be enforceable, regardless of the 'decision' of the Proper Officer."
With respect to his Honour, it is not immediately apparent how those rights would be enforceable. The MAC Act does not provide an appeal from or right of review of a Proper Officer's decision under s 62. The only review provided by the Act is of a medical assessor's determination.
His Honour next dealt with the question of jurisdictional facts. His Honour held, at [52]-[53], that the question for consideration under s 62 was whether, objectively determined, there had been a deterioration of the injury, or as in this case, additional relevant information about the injury. His Honour said that the matters were jurisdictional facts, the non-existence of which precluded or invalidated any purported reference by a party for further medical assessment. His Honour considered that in those circumstances, although relief in the form of certiorari was not available, prohibition could issue to the Proper Officer if the necessary jurisdictional facts for referral for a further assessment did not exist.
Mr Rodger submitted that, assuming Singh was correct, the Court in this case should objectively consider whether the jurisdictional facts existed and if so, fashion orders in the nature of prohibition or mandamus.
Before dealing with whether the functions of the Proper Officer under s 62 are of the same nature as the functions under s 60(2), as found by his Honour, a brief consideration as to when an order in the nature of certiorari will run, is required. In Aronson, Dyer, Groves, Judicial Review of Administrative Action, 4 th Ed, 2009, the authors state, at 12.100, that historically, in order for certiorari to be available, there must be " a duty to act judicially ", " in the exercise of legal authority ", " to determine questions that affect the rights or interests of subjects ". However, in Hot Holdings Pty Ltd v Creasy [1996] HCA 44; 185 CLR 149 Brennan CJ, Gaudron and Gummow JJ indicated that the remedy was not as strictly bound as the historical statement would indicate. Their Honours held, at 159, that for certiorari to issue, it must be possible to identify a decision which has a discernable or apparent legal effect upon rights. Their Honours stated that it is that legal effect which may be removed for quashing.
Their Honours continued at [23], 159-160:
"This formulation encompasses two broadly typical situations where the requirement of legal effect is in issue:
(1) where the decision under challenge is the ultimate decision in the decision-making process and the question is whether that ultimate decision sufficiently 'affects rights' in a legal sense;
(2) where the ultimate decision to be made undoubtedly affects legal rights but the question is whether a decision made at a preliminary or recommendatory stage of the decision-making process sufficiently 'determines' or is connected with that decision."
In Singh, Rothman J considered that tasks undertaken pursuant to s 60 and s 62 only involved the taking of procedural steps. Whether this is so depends upon a consideration of the terms of each section. Section 60(1) makes provision for referral of a medical dispute by a party for medical assessment. Section 62(1) provides for referral for further assessment. Section 62(1)(a) specifies the conditions upon which a referral for further medical assessment may be made by a party. There must be a deterioration in the injury or additional information, " such as to be capable of having a material effect on the outcome of the previous assessment ". There is no counterpart of this provision in s 60, as it is not required.
Section 60(2) provides that the Authority is to arrange for the dispute to be referred to one or more medical assessors. There is no similar provision in s 62. Rather, s 62(1B) provides that a referral for further assessment is to be " by referral to the... proper officer ". Clause 14.1 of the Guidelines gives administrative or procedural effect to s 62(1B) by requiring that a referral be by way of application. Clauses 14.2 to 14.8 provide for the process whereby a referral for further assessment is determined. Significantly, cl 14.8 provides that brief reasons for the decision are to be given, indicating a recognition that rights are thereby affected.
Clause 14.9 specifies the manner in which the procedural task of arranging for the further assessment is to proceed. In the case of a referral for assessment under s 60, the corresponding procedural step is contained within the section itself: see s 60(2). Mr Rodger did not suggest that cl 14.9 was inconsistent with the provisions of the Act. Given the terms of cl 14.9, I do not consider that s 60(2) extends to the processes under s 62. For that reason alone, I do not consider that the decision in Goodman is of assistance in characterising the function of the Proper Officer under s 62(1).
Nor, with respect to Rothman J, do I otherwise accept his Honour's characterisation of the task under s 62 as being only procedural. Section 62 has a different operation from s 60. If there is a medical dispute, a party may refer the matter for medical assessment under s 60. There are no preconditions to be satisfied. Under s 62, the matter may not be referred for further medical assessment at the instance of a party unless the preconditions specified in s 62 are satisfied. The task of ascertaining whether a matter " is such as to be capable of having a material effect on the outcome of the previous assessment " for the purposes of subs 1A is the task of the Proper Officer.
The determination made under s 62, in my opinion, falls within the second situation described in Hot Holdings v Creasy. The task of the Proper Officer involves making a decision that affects rights, as it is the outcome of the medical assessment that determines whether or not a person has an entitlement to damages for non-economic loss. True it is that it is the outcome of the further medical assessment (if any) that determines the legal rights of the parties. However, the decision of the Proper Officer as to whether the further information or deterioration in the injury is capable of having a material effect on the outcome of the previous assessment, " sufficiently determines or is connected " with that decision and in my opinion, is amenable to an order in the nature of certiorari.
Accordingly, I would reject Mr Rodger's argument based upon the decision in Singh that certiorari does not extend to a decision of a Proper Officer under s 62. My conclusion on this makes it unnecessary to consider the further issue in Singh relating to jurisdictional facts.
The discretionary issue
At trial, Mr Rodger argued that even if Mr De Gelder had made out his claim for prerogative relief, the Court should refuse relief on discretionary grounds. Mr Rodger submitted that Mr De Gelder had not commenced court proceedings on or shortly after 4 December 2008 as he intimated he was going to do, but participated in the further assessment process and sought a review of that further assessment. Mr Rodger submitted that any challenge to the decision of the Proper Officer referring the matter for further assessment ought to have been made promptly. He argued that it was apparent from Mr De Gelder's conduct, that he sought to keep his options open by going through the further assessment process and it was only when it was unfavourable to him that he then brought proceedings.
His Honour rejected this argument essentially on two bases. First, his Honour considered that the fact that Mr De Gelder had sought a review of the further assessment under the MAC Act, s 63 was in accordance with authority: see Wilkie v Motor Accidents Authority of NSW [2007] NSWSC 1086; 48 MVR 509 at [27]-[28], where Malpass AsJ refused relief to an applicant for judicial review when the applicant had not pursued the more expeditious processes under the MAC Act, especially the right of review of medical assessment. Secondly, his Honour accepted the evidence of Mr De Gelder's solicitor explaining why Supreme Court proceedings were not commenced at the time the letter of 4 December 2008 was sent to Mr Rodger. Those reasons were twofold. The solicitor had had experience in a previous matter where the further assessment was conducted on the papers. Mr De Gelder was seeking to avoid unnecessary costs in circumstances where there was a reasonable expectation that the further assessment would be favourable to Mr De Gelder. His Honour also accepted the solicitor's evidence that at the time he wrote the letter on 4 December there was an intention to commence proceedings but it was only at a later time that a decision not to do so was made. His Honour held that Mr De Gelder and his solicitor had not acted unreasonably in attempting to minimise costs by awaiting the outcome of the further assessment.
His Honour considered that Mr Rodger's complaint was essentially one of delay. His Honour concluded that there was no delay of any magnitude nor a delay that had prejudiced Mr Rodger in any substantive way.
Argument on the appeal
Mr Rodger did not challenge his Honour's finding in respect of delay. Rather, he submitted that the trial judge misunderstood the argument that he advanced in respect of the discretionary issue. Delay was not the primary objection. Mr Rodger said that his complaint before the trial judge was that Mr De Gelder had acquiesced in the validity of the decision, both by participating in the further assessment process and by seeking a review of that assessment pursuant to s 63: see Re Refugee Review Tribunal; Ex parte Aala [2000] HCA 57; 204 CLR 82 at 108. By acquiescing in those processes, Mr De Gelder had elected not to pursue such rights as he might have by way of judicial review and had thereby waived his right to seek judicial review. Mr Rodger submitted that it was apparent that Mr De Gelder was aware of his rights for the purposes of the doctrine of election as evidenced by the letter of his solicitor of 4 December 2008 attaching the draft summons. Mr Rodger submitted, therefore, that his Honour's exercise of the discretion had miscarried: see House v R [1936] HCA 40; (1936) 55 CLR 499 at 505.
Before dealing with the decision in Aala, upon which Mr Rodger's submission as to acquiescence relies, it is necessary first to understand the concepts of acquiescence, election and waiver, as well as the principles that govern the exercise of the court's discretion to refuse relief on an application for orders in the nature of prerogative relief. The first matter to note is that the concepts of acquiescence, election and waiver are legal concepts that potentially alter rights. Indeed, election has been described as the " sterilization of a legal right otherwise than by contract ": Commonwealth v Verwayen [1990] HCA 39; 170 CLR 394 at 491 per Brennan J.
Election involves a choice between inconsistent rights. In Sargent v ASL Developments Ltd [1974] HCA 40; 131 CLR 634 Mason J said, at 655:
"A person is said to have a right of election when events occur which enable him to exercise alternative and inconsistent rights, i.e. when he has the right to determine an estate or terminate a contract for breach of covenant or contract and the alternative right to insist on the continuation of the estate or the performance of the contract. It matters not whether the right to terminate the contract is conferred by the contract or arises at common law for fundamental breach - in each instance the alternative right to insist on performance creates a right of election."
In Immer (No 145) Pty Ltd v Uniting Church In Australia Property Trust (NSW) [1993] HCA 27; 182 CLR 26 the Court emphasised, for the purposes of election, the necessity of a party being confronted with mutually exclusive courses of action in which, in fairness to the other party, the first party must make a choice. In that case, the owner of excess air space rights was entitled to transfer them, subject to a requirement to restore an historic building to the local council's satisfaction. The contract of sale of the air space rights was subject to a condition that the purchaser was entitled to rescind if the council's requirements were not satisfied by a specified date. The vendor did not complete the work by the date in question. However, the purchaser, believing the council had approved the transfer, sent to the vendor's solicitors documents for settlement, including a draft deed which recited that the council had granted its approval.
The plurality (Deane, Toohey, Gaudron and McHugh JJ) at 42, re-emphasised that the central notion of election was " contained in the idea of confrontation [of alternate rights], which in turn produces the necessity of making a choice ". In that case, the choice was not merely one of affirming the agreement, but also involved the abandonment of the right to rescind. Their Honours noted that abandonment was more readily inferred in some circumstances, for instance, where the choice arose once and for all. The Court considered that where the right in question (in that case, a right to rescind) was a continuing one, it was not so readily concluded that the party entitled to rescind had abandoned that right completely as opposed to taking no action to exercise the right at a given time.
Election, if made out, has a specific legal consequence: it brings to an end a legal right that a party otherwise had. The right is treated at law to have been abandoned: see Immer v The Uniting Church at 39. That is of particular relevance in this case where Mr Rodger seeks to rely upon an election, not as concluding Mr De Gelder's right to relief, but as relevant to the discretionary considerations that a court may take into account in determining whether to grant prerogative relief.
The next 'concept' upon which Mr Rodger relied was acquiescence. In Meagher, Heydon, Leeming, Meagher, Gummow & Lehane's, Equity: Doctrines and Remedies, 4 th ed, 2002, the authors state, at [36-090], that acquiescence has three meanings. First, it can refer to equitable estoppel in the sense used in Ramsden v Dyson (1866) LR 1 HL 129. That concept is not in issue here.
Secondly, acquiescence can refer to an element of laches in the sense that a person, over a long period of time, with full knowledge of the person's rights, refrains from exercising those rights in circumstances where it can be inferred that the rights have been abandoned. When used in this sense, it involves waiver, affirmation and release.
The third sense in which the term acquiescence is used is referable to that type of laches which involves prejudice to third parties. The authors note that mere delay, of itself, is not enough to constitute either laches or acquiescence: Jones v Stones [1999] 1 WLR 1739. See Equity: Doctrines and Remedies at [36-050] and [36-070]. Acquiescence, as described in the second and third senses, may be relied upon as a discretionary defence in an equity suit.
It is well accepted that the grant of prerogative relief is discretionary: Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26; 197 ALR 389 at [33]; Solution 6 Holdings Ltd v Industrial Relations Commission (NSW) [2004] NSWCA 200; ( 2004) 60 NSWLR 558 at 591. Delay is a well accepted discretionary consideration. Before dealing with Mr Rodger's argument that acquiescence is also a discretionary consideration, which was operative in this case and should have been acted upon by the trial judge, I first wish to deal with the discretionary restraint on a court exercising supervisory jurisdiction where there are unexhausted appeal rights or review procedures: see Solution 6 Holdings at 591.
The reason for this restraint has been expressed in various ways. However, the common thread underlying the case law is that the court exercising supervisory jurisdiction is entitled to the benefit of the findings of the court or tribunal which is subject of the application for review. There is a dual utility in this exercise of restraint. First, it allows the court exercising supervisory jurisdiction to do so after disputed questions of fact have been determined. Secondly, it allows for the appellate or review procedures to correct the decision sought to be impugned, thus potentially rendering judicial review unnecessary: see Solution 6 Holdings at 593-595 and cases cited therein. It is an aspect of this second consideration that the court exercising supervisory jurisdiction is able to approach the matter with the benefit of the reconsideration by the court or tribunal which has the responsibility in law of being the primary forum of appellate review: see R v Ross-Jones; Ex parte Beaumont [1979] HCA 5; 141 CLR 504 at 194-195; Maltais v Industrial Commission (NSW) (1986) 14 IR 367 at 368.
It necessarily follows from these authorities that once an internal appeal or review process has been exhausted, then subject to any relevant statute, the aggrieved party may move to challenge any excess of jurisdiction by way of an application for prerogative relief. Once that is understood, Mr Rodger's reliance on the principle of election runs into trouble. However, his challenge to the exercise of discretion was based, as a first step, on a comment made in Aala in respect of acquiescence and waiver.
In Aala, the High Court was concerned with an application by Mr Aala for prerogative relief in circumstances where he alleged that he had been denied procedural fairness by the Refugee Review Tribunal. Gaudron and Gummow JJ accepted, at [53], that an element of discretion attended the exercise of the High Court's jurisdiction under the Constitution, s 75(v) with respect to prohibition. Their Honours considered that delay, waiver or acquiescence in the conduct of the prosecutor in the course of the administrative proceedings or in other relevant circumstances was relevant to the exercise of the discretion.
Their Honours, at [56], referred to the statement in R v Commonwealth Court of Conciliation & Arbitration; Ex parte Ozone Theatres (Aust) Ltd [1949] HCA 33; 78 CLR 389 at 400, as to the circumstances that may attract an exercise of discretion:
"For example, the writ may not be granted if a more convenient and satisfactory remedy exists, if no useful result court ensue, if that party has been guilty of unwarrantable delay... the court's discretion is judicial and the refusal of a definite public duty is established, the writ issues unless circumstances appear making it just that the remedy should be withheld."
Their Honours also referred to the decision of Lord Denning MR in F Hoffman-La Roche & Co AG v Secretary of State for Trade and Industry [1975] AC 295 at 320 (affirmed [1975] AC 329), when dealing with certiorari and declarations, where Lord Denning stated:
"[The applicant] may be debarred from relief if he has acquiesced in the invalidity or has waived it."
This is the notion upon which Mr Rodger relies in support of his argument that relief should have been refused in this case on discretionary grounds.
In my opinion, the sense in which Lord Denning MR used the notions of acquiescence and waiver in F Hoffman-La Roche was akin to the second meaning of acquiescence referred to by the authors of Equity: Doctrines and Remedies. In other words, the reference to acquiescence and waiver in that passage was a reference to circumstances where conduct could properly give rise to an inference that the person had abandoned her or his rights. Whilst such conduct could, and almost inevitably would, lead a court exercising supervisory jurisdiction to refuse relief in the exercise of its discretion, Mr De Gelder's conduct is not of that nature.
As I have indicated, the MAC Act does not provide for an appeal from or a review of a Proper Officer's determination under s 62. However, there is a process of review of medical assessments. The authorities are clear that a court may and usually does, decline prerogative relief where an applicant has not exhausted such appeal or review rights as may be available. In the present case, where the processes mandated by the MAC Act are intended to provide a low cost and relatively expeditious means of recovering compensation, I am of the opinion that a party, by participating in a further medical assessment or a review thereof, has not by that fact alone waived or abandoned a right to seek prerogative relief, so as to permit the refusal of relief on discretionary grounds.
For the same reason, I have reached the conclusion that Mr De Gelder was not debarred on discretionary grounds from obtaining prerogative relief because he had elected to engage in the further assessment. As I have indicated, when a party who has a right of appeal in the court or tribunal whose orders are subject to judicial review, that party is not confronted with mutually exclusive choices. Rather, a superior court with supervisory jurisdiction usually requires a party to first exhaust those other remedies. In deciding to participate in the further assessment, I am of the opinion that Mr De Gelder was not exercising a final choice to pursue one remedy rather than the other. As his solicitor's evidence revealed, the reassessment process was relatively inexpensive and quick, and it was reasonable for Mr De Gelder to believe that the earlier medical assessments may not be altered. Accordingly, he chose to engage in that process, but not as a final choice between mutually exclusive rights.
As will be apparent from what I have said thus far, the question whether or not an election has been made involves factual considerations. This is of particular importance in this case because Mr De Gelder submitted that the question of election was not in issue in the Court below. He likewise submitted that questions of acquiescence and waiver were not raised by Mr Rodger before the primary judge. He submitted that where the determination of such issues is dependent upon factual circumstances not addressed in the proceedings before the primary judge, Mr Rodger should not be permitted to now raise those arguments: see Suttor v Gundowda.
Senior counsel for Mr Rodger did not appear on the hearing before the primary judge and accordingly was not able to inform the Court of his own knowledge as to whether oral submissions had been made raising the issues of acquiescence and election. His instructions from counsel who appeared at trial were that those issues had been raised. This was disputed by counsel for Mr De Gelder and no evidence was adduced to assist in the resolution of that issue. Unless the written submissions of the parties disclose that a point was clearly raised in the Court below, then, if the parties require the Court to adjudicate such a dispute, it is necessary for one or both to adduce evidence of what occurred at trial.
In this case, senior counsel for Mr Rodger relied upon the supplementary written submissions provided to his Honour as sufficiently raising the issue he now seeks to argue. Those submissions were, relevantly, in the following terms:
"15. [Mr De Gelder] did not file any summons for relief in respect to the determination of the Proper Officer as threatened, but permitted the assessment to proceed. It was only when the further assessment performed by Assessor Best found [Mr De Gelde r's ] whole person impairment was not greater than 10% that proceedings were commenced seeking to challenge the original determination of the Proper Officer. There has been no challenge to the actual assessment performed by Assessor Best. (emphasis as in original written submission)
16. [Mr Rodger] contends that the Court will take these matters into account when considering whether the discretion should be exercised to grant relief. [Mr De Gelder] in submissions has highlighted the obligation to consider the objects of the Act including providing compensation for compensable injuries and encouraging 'the early resolution of compensation claims' (section 5 of the Act).
17. [Mr Rodger] contends that [Mr De Gelder's] conduct in permitting the further assessment to proceed despite the intention to challenge the Proper Officer's determination by way of judicial review is inconsistent with the objects of the Act including ' the early resolution of claims'. In the event [Mr De Gelder] truly believed the Proper Officer had committed jurisdictional error, proceedings for the relief of the type now sought should have been commenced prior to the assessment taking place as foreshadowed in correspondence with [the Authority]. [Mr Rodger] contends that the failure to do so ought to be taken into account by the Court in considering whether to exercise its discretion in favour of [Mr De Gelder]."
In my opinion, these submissions do not raise the questions of acquiescence and election in the manner in which they are now sought to be argued. Rather, they are directed to the statutory mandate for the early resolution of claims, which was correctly understood by his Honour to be a submission in relation to delay. In the normal course, I would not have allowed the questions of acquiescence and election as argued by senior counsel for Mr Rodger to be raised on the appeal. However, as I have fully dealt with those questions, I reject Mr Rodger's challenge to his Honour's exercise of discretion on the basis that even had they been raised at trial, they would have been decided adversely to Mr Rodger.
Notice of contention
Mr De Gelder sought to have the decision of Davies J affirmed by raising the following contentions:
1. The Proper Officer's decision to refer the matter for further assessment was " illogical, irrational or lacking a basis in findings or inferences of fact supported on logical grounds ", as the respondent had not sustained any relevant injury in the " several earlier accidents " in which the respondent had been involved.
2. The report of Dr Maxwell was not additional information as found by his Honour.
3. The Proper Officer's decision for referring the matter for further assessment was not based upon Dr Maxwell's report.
4. Davies J had erred in refusing leave to amend the summons to include a ground that the Authority, through the assessor Dr Best, exceeded jurisdiction in not limiting the further assessment to a consideration of the reason identified by the Proper Officer as justifying the further referral.
5. Upon a referral for further assessment, the assessor should not consider all matters afresh but should be confined to those matters that gave rise to the further assessment. It was contended that McKee v Allianz Australia Insurance Limited [2008] NSWCA 163; 71 NSWLR 609, where it was held that assessment on a review under s 63 extended to a consideration all matters afresh, should not be applied to s 62.
The Proper Officer's letter of 28 November specifies as the reason for the further assessment, the existence of the earlier accidents. The letter makes no reference to Dr Maxwell's report, which was an important basis for Mr Rodger's application for a further assessment. Nonetheless, I do not consider that the decision to refer the matter for further assessment, even if confined to the existence of previous accidents, can be described as " illogical, irrational or lacking a basis in findings or inferences of fact supported on logical grounds ": see Minister for Immigration and Citizenship v SZMDS and Anor [2010] HCA 16; 240 CLR 611, especially the discussion at [16] ff per Gummow ACJ and Kiefel J. Mr De Gelder's assertion that he did not suffer any relevant injury in those earlier accidents is not a basis for so characterising the decision.
Once it is accepted that the decision was not " Illogical, irrational " et cetera, then the relevance of Dr Maxwell's report can be considered in context. First, I agree with the trial judge that Dr Maxwell's report could constitute additional information, notwithstanding that in the original assessment and review the assessors had available medical evidence relating to causation. That was a matter for decision by the Proper Officer, first, as to whether it was additional information and secondly, whether the matter should be referred for further review.
More specifically, having regard to the third contention, I am of the opinion that although the Proper Officer did not expressly base her decision on Dr Maxwell's report, his report may have been relevant to that further assessment. An investigation of the manner in which the prior accidents occurred and the injuries, if any, sustained in the earlier accidents, may have been relevant to the question whether the compression injury to the thoracic spine was sustained in the motor vehicle accident subject of the claim.
As to the fourth contention, a decision whether to allow an amendment is a discretionary matter of practice and procedure. His Honour had raised the issue sought to be made subject of the amendment about a month previously. However, Mr De Gelder did not act upon it until, it would appear, the last day of the hearing. The hearing had already run over three previous hearing days commencing in August. His Honour raised the matter on 17 November, but nothing was done by Mr De Gelder until, as I have said, the last day of the hearing. No error has been demonstrated in his Honour's decision to refuse to allow the amendment. Accordingly, it is unnecessary to decide the issue raised by the fifth contention.
Conclusion
In my opinion, the following orders should be made:
1. Grant leave to appeal;
2. Notice of appeal in the form contained in the draft notice of appeal to be filed in the Registry within 7 days of the date of judgment;
3. Appeal allowed;
4. Set aside orders made by Davies J on 18 December 2009;
5. Order that the summons of the first respondent Mr De Gelder filed on 27 August 2009 be dismissed;
6. Order that the first respondent pay the appellant's costs of the hearing of the summons at first instance and of the appeal, including any costs associated with the summons for leave to appeal;
7. The first respondent to have a certificate under the Suitors Fund Act 1951.
McCOLL JA : I agree with Beazley JA and with the further comments of Macfarlan JA.
MACFARLAN JA : I agree with the orders proposed by Beazley JA and with her Honour's reasons. I add the following observations.
The "wrong question" issue
The "wrong question" issue is an issue as to whether the letter dated 28 November 2008 (set out at [36] in the judgment of Beazley JA) from Ms Susan White on behalf of the Proper Officer of the first respondent's Medical Assessment Service discloses that the first respondent addressed the wrong question in determining that Mr De Gelder should be referred for a further medical assessment.
The correct question was identified in s 62(1A) of the Act - was any deterioration of the injury occurring or additional information received since the earlier assessment "capable of having a material effect on the outcome of the previous assessment"?
Reading Ms White's letter as a whole, I have no doubt that this was a question she addressed. That is, she considered whether the additional relevant information (being information about the previous accidents to which she referred) might result in a different medical assessment outcome to that arrived at in the earlier assessment.
In my view this is the only sensible interpretation of the letter available. The suggested alternative interpretation that Ms White was only considering whether the additional information might have a material effect on the application before her for a further referral for medical assessment does not make sense. That question could only be answered by answering the question identified in s 62(1A).
This conclusion is supported by the fact that Ms White focused upon, and emphasised, the existence of "several other accidents previously not considered" (see the third paragraph of her letter). Plainly she was saying that, if considered, they might lead to a different medical assessment outcome.
That a literal reading of words used by Ms White in her second paragraph ("the outcome of the application") point in the opposite direction is far from conclusive. The letter must be read as a whole, bearing in mind the nature of the application with which it was dealing and the legislative context in which it was written. Moreover it must be construed in a commonsense fashion without over-zealous attention to the manner in which it was expressed (see Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259 at 272). I consider that when this is done its meaning is clear.
The explanation for Ms White's use of the phrase to which I have referred is no doubt that it is used in paragraph 14.7 of the MAA Medical Guidelines. The comments I have made about the proper construction of Ms White's letter are in substance also applicable to the use of the same language in those Guidelines.
Notice of Contention
The first respondent submitted that the primary judge's conclusion that the decision of the Proper Officer of the Motor Accidents Authority should be quashed should be upheld on an alternative ground (see Notice of Contention filed on 8 April 2010). The first respondent argued that the view implicitly expressed in Ms White's letter of 28 November 2008 that the "additional relevant information" was capable of producing an outcome to a medical assessment of Mr De Gelder different to that previously arrived at was wrong, and was illogical and irrational.
The decision to refer a claimant for a further medical assessment is made by an administrative officer and, whilst not a purely procedural step, is nevertheless not the ultimate step in the relevant process (that being the further medical assessment itself). Bearing this in mind, my view is that on the proper construction of s 62(1A), the capacity of the additional information to affect a further medical assessment is a matter for the subjective satisfaction of the Proper Officer. It is not necessary that that capacity exist as a matter of objective fact.
In these circumstances the grounds available for successful judicial review are limited (see Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611). In my view none have been established here. The first respondent's submissions do not amount to any more than an attempt to contest the merits of the Proper Officer's decision concerning the relevant capacity. They do not establish that the decision was irrational, illogical or otherwise liable to review on one of the grounds to which reference is made in SZMDS.
I add that I would reject the first respondent's challenge to the primary judge's decision not to allow him to further amend his Summons to add a ground upon which he contends that the further medical assessment that has in fact been made should be quashed (see Judgment [69]; Draft Notice of Contention [4] - [5]). No basis has been shown for interfering with the exercise of his Honour's discretion on this interlocutory, procedural issue.
Futility argument
In conclusion, I indicate that I do not accept the first respondent's argument (Written Submissions [27]) that it would be futile to allow an appeal because the second respondent has already made a further decision pursuant to orders that the primary judge made. If this Court sets aside the primary judge's orders that further decision of the second respondent will be of no effect and the earlier decision of 28 November 2008 will stand.
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