Supreme Court New South Wales

• Medium Neutral Citation: GIO General Limited v Passau [2013] NSWSC 682
• Hearing dates: 28 May 2013
• Decision date: 30 May 2013
• Before: Harrison J

Decision

1. The plaintiff's notice of motion filed in Court on 28 May 2013 is dismissed.

2. The costs of the motion are to be the first defendant's costs in the proceedings.

• Catchwords: ADMINISTRATIVE LAW - judicial review - stay of proceedings pending determination of summons seeking relief in this Court - whether dictates of justice require that a stay be granted
• Legislation Cited: Civil Procedure Act 2005; Motor Accidents Compensation Act 1999; Supreme Court Act 1970
• Cases Cited: Kalifair Pty Ltd v Digi-Tech (Aust) Ltd [2002] NSWCA 383; (2002) 55 NSWLR 737; Meeuwissen v Boden [2010] NSWCA 253; (2010) 78 NSWLR 143; Paringa Mining and Exploration Co Plc v North Flinders Mines Ltd (No 2) [1988] HCA 53; (1988) 165 CLR 452; Re Middle Harbour Investments Ltd (in liq) (NSWCA, 15 December 1976, unreported); Wilson v Church (No 2) (1879) 12 Ch D 454
• Category: Interlocutory applications
• Parties: GIO General Limited (Plaintiff); Jennifer Passau (First Defendant); Motor Accidents Authority of New South Wales (Second Defendant)
• Representation: Counsel: M A Robinson SC with J Gumbert (Plaintiff); R Goodridge (First Defendant); Solicitors: Moray & Agnew (Plaintiff); Firths (First Defendant)
• File Number(s): 2013/153414

Judgment

1 HIS HONOUR: GIO General seeks a series of orders by notice of motion filed in Court on 28 May 2013, limited relevantly to an order in the following terms:

3. The Motor Accidents Authority of New South Wales including its officers, servants or agents be restrained from acting on or taking any further step in reliance on the decision of [its] proper officer made purportedly pursuant to s 63 of the Motor Accidents Compensation Act 1999, namely, the decision dated 26 March 2013 to refuse the plaintiff's application to refer a medical assessment for review to the medical assessor's review panel or in reliance on the decision of the medical assessor John Baker dated 28 November 2012 until the final determination of this Court or further order.

2 The summons commencing the proceedings was filed on 17 May 2013. It is necessary to refer to some of the relief that it claims. It is relevantly as follows:

1. An order in the nature of certiorari or, alternatively, a declaration setting aside or declaring void the decision of the "proper officer" of the second defendant made on about 26 March 2013 purportedly pursuant to s 63 of the Motor Accidents Compensation Act 1999 on the plaintiff's application to refuse to refer a medical assessment for review to the medical assessor's review panel.

2. An order in the nature of prohibition or, alternatively, an injunction preventing the defendants or any of their officers, servants or agents from acting on or taking any further step in reliance on the decision.

3. An order in the nature of mandamus remitting the plaintiff's review application to the second defendant for reallocation of the matter to a different proper officer for determination of the review application according to law.

Background

3 The plaintiff seeks what amounts to a stay of the implementation of a decision of the "proper officer" of the Motor Accidents Authority of NSW made pursuant to s 63 of the Motor Accidents Compensation Act. The decision was made on 26 March 2013 to refuse the plaintiff's application to refer a medical assessment to a review panel. The plaintiff also seeks the stay of any actions taken in reliance on the decision of the medical assessor John Baker dated 28 November 2012, until the final determination of this Court.

4 The "proper officer" of the second defendant is a person appointed by s 62(1B) of the Motor Accidents Compensation Act to make certain significant statutory decisions under the compensation scheme. Such decisions should necessarily be valid and lawful. The plaintiff's challenge goes to the validity or legality of a decision of the proper officer.

5 The first return of the summons in these proceedings is fixed for 9.00am on 4 June 2013 before the Registrar. The parties anticipate that a timetable will be agreed at that time and that a hearing date will be sought. The current estimate for that hearing is one day.

6 The need for the stay, and hence the apparent urgency of the matter, arises because claims assessor Buckley of the MAA determined on 27 May 2013 that the plaintiff and the first defendant, who are the parties to the personal injury motor accident proceedings, must appear at a final assessment conference and run their respective cases before him on 31 May 2013. Claims assessor Buckley declined to adjourn the hearing pending the determination of these proceedings. The hearing before claims assessor Buckley is the equivalent of a final court hearing in a personal injuries matter.

7 The plaintiff wishes to challenge the validity of the decision of the proper officer refusing a formal review of a decision of a medical assessor that would lead to the provision of a replacement medical certificate. That is the purpose of the present summons. If there is a replacement medical certificate pursuant to s 63(4) of the Act, and it is ten percent or less of a whole person impairment, the claims assessor is bound by that assessment in making his determination: see s 61(2) of the Act.

8 The plaintiff contends that in refusing to adjourn or vacate the assessment conference, claims assessor Buckley has acted "prematurely". It is submitted that if he proceeds, he will be applying a medical certificate that is the subject of the as yet undetermined criticisms raised by the plaintiff in this Court. Moreover, upon making his final assessment, claims assessor Buckley will then make an assessment that may become binding on the plaintiff if the first defendant accepts the award within the time provided for in s 95(2) of the Act.

9 In that event, the plaintiff would be limited to amending its present summons to seek judicial review of claims assessor Buckley's failure to grant the original adjournment and of his erroneous decision to rely upon a medical assessment that was not binding. The plaintiff contends that if the claims assessment is permitted to proceed, these proceedings may be rendered futile. Alternatively, if the assessment conference is not adjourned, the plaintiff will be forced to commence additional judicial review proceedings to challenge the validity of the final claims assessment upon the basis that it would have been made without proper legal foundation.

10 The plaintiff contends that such a course of conduct by claims assessor Buckley and the defendants would not facilitate the just, quick and cheap resolution of the real issues in dispute. The plaintiff asks only that the Motor Accidents Authority and claims assessor Buckley halt the process for a few months so that the legality of the impugned statutory decisions might be tested and determined in this Court in its supervisory jurisdiction. The plaintiff submits that the present proceedings are significant and involve matters of public importance.

11 The Court's power to order a stay is derived from a number of sources, including s 67 of the Civil Procedure Act 2005. Section 135 of the Act empowers the Court to give directions with respect to the enforcement of its judgments and orders. The Court in any event has ample power as a matter of its inherent or incidental jurisdictions to order a stay whenever justice requires. "The exercise of that power will be particularly appropriate where it is necessary to maintain an existing state of affairs in order to preserve the subject matter of the proceedings": Paringa Mining and Exploration Co Plc v North Flinders Mines Ltd (No 2) [1988] HCA 53; (1988) 165 CLR 452. Kalifair Pty Ltd v Digi-Tech (Aust) Ltd [2002] NSWCA 383; (2002) 55 NSWLR 737. "Circumstances sufficient to justify the grant of a stay exist where...refusal would render the appeal futile": Wilson v Church (No 2) (1879) 12 Ch D 454; Re Middle Harbour Investments Ltd (in liq) (NSWCA, 15 December 1976, unreported).

12 The plaintiff contended that the interests of justice in the present case, or the "dictates of justice" within the meaning of s 58(1)(b) of the Civil Procedure Act, required that a stay be granted so that the judicial review proceedings may proceed with the hearing of the substantive matter in this Court. As to the substance of the judicial review proceedings, the plaintiff identified the errors for which it contends as follows.

13 On 26 March 2013, a decision was made by proper officer Josephine Redmond of the second defendant purportedly pursuant to s 63 of the Act to refuse the plaintiff's application seeking to refer a medical assessment for review to the medical assessor's review panel. The first defendant had been injured in a motor vehicle accident on 16 April 2005. She suffered physical and psychological injuries. Medical assessor John Baker assessed her psychological injuries and a certificate was issued pursuant to s 61 of the Act on 28 November 2012. That certificate found that the first defendant had adjustment disorder with mixed anxiety and depressed mood as a result of the motor vehicle accident, and that this gave rise to 15 percent whole person impairment.

14 On about 9 January 2013, the plaintiff in this Court lodged an application for a review of the medical assessment pursuant to s 63 of the Act contending that there existed reasonable cause to suspect that the medical assessment was incorrect in specified material respects. It made detailed written submissions in support of that application. The plaintiff contended and maintains that there are a number of jurisdictional errors and/or errors of law on the face of the record that occurred in the making of proper officer Redmond's decision. Alternatively, the plaintiff contends that she constructively failed to exercise her statutory power in making the decision and that it is therefore invalid.

15 The first alleged error is identified in the proper officer's reasons for decision at [24] and [25]. She there dealt with the issue of the assessment of the first defendant's social functioning, undertaken by the medical assessor for the purpose of ascribing a Psychiatric Impairment Rating Scale which is a rating to go towards establishing the degree of whole person impairment pursuant to Table 7.4 of the MAA's Guidelines for the Assessment of the Degree of Permanent Impairment dated 1 October 2007. The paragraphs are as follows:

"Assessment of area of functioning 'Social functioning'

24. The applicant submits the assessor incorrectly recorded the claimant 'was able to sustain a marital relationship for many years prior to the motor accident' when the claimant did not marry until seven months after the motor accident.

25. The applicant does not point to how the date of the claimant's marriage could effect a material change to the outcome of the impairment assessment. Whether married or not, the assessor records the claimant was in a 'marital relationship' for many years prior to the motor accident."

16 The plaintiff contends that the proper officer erroneously referred to the fact that the plaintiff's submission did not "point to how the date of the claimant's marriage could effect a material change to the outcome of the impairment assessment". The plaintiff submitted that that is not the legal test and that in failing to understand or apply the correct legal test, the proper officer fell into error. The plaintiff submitted that the error has infected her entire decision.

17 According to the plaintiff, in applying s 63, the correct test for the proper officer was for her to be satisfied whether there is "reasonable cause to suspect that the medical assessment was incorrect in a material respect". That expression was held in Meeuwissen v Boden [2010] NSWCA 253; (2010) 78 NSWLR 143 to mean an error that was material to the decision, in the sense that it contributed to it. The notion that the error needed to be so serious as to effect a change to the outcome of the assessment was expressly rejected by the Court of Appeal by Basten JA at [18] as follows:

"[18] The phrase 'in a material respect' is imprecise. It undoubtedly can mean that 'the error is material to the decision in the sense that it contributes to it so that, but for the error, the decision would have been, or might have been, different': Australian Broadcasting Tribunal v Bond [1990] HCA 33; 170 CLR 321 at 353 (Mason CJ). On the other hand, it can refer to the process by which the outcome was achieved. The latter approach may be more likely, if the body determining the nature of the error is not itself required or permitted to vary the outcome. There are various considerations in s 63 which suggest that the latter view is to be preferred."

18 The second alleged error in the decision is that the proper officer failed to determine or deal with part of the plaintiff's application in that she failed to deal with and therefore to consider or properly consider certain parts of the application (at [6] to [13] of her reasons) and so thereby allegedly denied the plaintiff procedural fairness. Alternatively, the proper officer simply failed to exercise her statutory power and so failed, actually or constructively, to make her decision. She, in essence, sidestepped the application by determining an unrelated issue that the medical assessor provided reasons and that the medical assessor assessed the current state of the first defendant. She therefore set out, but failed to deal with or to consider, the plaintiff's arguments.

19 The third alleged error is in relation to the issue of "causation" (reasons at [14] to [18]). The plaintiff made arguments concerning the failure of the medical assessor properly or lawfully to apply the principles of causation and apportionment relating to the first defendant's circumstances, particularly in light of the many other possible indications of causation on the facts that were present and the medical assessor's alleged failure to provide reasons for his decision, as opposed to a bare conclusion. The proper officer allegedly failed to deal with, and therefore to consider, the plaintiff's arguments, citing other unrelated reasons instead. Accordingly, the proper officer failed to perform her statutory task or, alternatively, she denied the plaintiff procedural fairness in this regard.

20 The fourth alleged error is in relation to the issue of "consistency" (reasons at [19] to [23]). The plaintiff made arguments concerning the failure of the medical assessor to deal with obvious inconsistent presentations of the first defendant at various places. She appeared neat and well groomed in some places and dishevelled and unkempt in others. The proper officer simply failed to deal with the submission or argument, citing other unrelated reasons instead. Accordingly, the proper officer failed to deal with them resulting in failure to perform her statutory task or, alternatively, she denied the plaintiff procedural fairness in this regard.

21 Finally, the proper officer allegedly failed to set out necessary reasons for her determination in the decision. The second defendant promulgated the MAA Medical Assessment Guidelines which were effective on 1 October 2008 and which were made pursuant to s 44(1)(d) and s 65(1) of the Act. These guidelines are in the nature of delegated legislation. Clause 16.15 of the Guidelines provides that the proper officer "shall" provide the parties with brief written reasons for the decision at the same time as, or as part of, the notification to the parties. The proper officer's failure to set out proper or lawful reasons constitutes a breach of clause 16.15 of the Guidelines and is a vitiating error under general law as well.

22 According to the plaintiff, there are in these circumstances arguable grounds for commencing and maintaining judicial review or supervisory proceedings in this Court seeking to set aside or declare void the proper officer's decision for jurisdictional error or error of law on the face of the record within the meaning of s 69 of the Supreme Court Act 1970.

Consideration

23 It is regrettable that this application only came before me in the Duty List for the first time on 28 May 2013 when the plaintiff sought to restrain claims assessor Buckley from proceeding with his assessment hearing only three days later. That is particularly so when the decision that now energises the plaintiff's concerns was delivered by proper officer Redmond as long ago as 26 March 2013. It should not pass without comment that if the alleged errors for which the plaintiff now contends were or are as egregious, obvious and significant as the plaintiff now asserts, it might reasonably have been anticipated by the other parties and by me that some immediate steps would have been taken to secure a remedy. In the events that occurred, that did not take place until some seven weeks later.

24 Necessarily lying at the heart of this application is the strength of the arguments that the plaintiff wishes ultimately to advance in this Court to establish, if it can, one or some of the alleged errors of the proper officer for which it contends. Having regard to the terms of s 63(3), the proper officer's task was to determine whether or not she could be satisfied that there was reasonable cause to suspect that the medical assessment was incorrect in a material respect having regard to the particulars set out in the application. The scope and content of that task informs to some extent, although not exclusively, the force of the arguments upon which the plaintiff wishes to rely.

25 The notion of whether the decision could be held to have been incorrect in a material respect contemplates an examination of the process by which the outcome is achieved. I have attempted in the limited time available to consider the alleged errors in the light of that test. Without wishing to derogate from the genuine earnestness with which the plaintiff propounds both the fact and the importance of these putative errors, I am unable to agree that they "infect" the proper officer's decision in the way suggested or that they alone or in combination amount to or constitute a denial of procedural fairness. I hasten to say that the expression of that opinion is one offered in the context of this interlocutory application, in the constrained circumstances as I have described them, and not as an opinion or statement about the likely final outcome in the proceedings or even as a guide to it.

26 There are also discretionary considerations indicated by the position of the first defendant. The material to which I have been referred suggests that, even though there may be a dispute about it, her medical condition is poor and further uncertainties and delays are likely to be inimical to her health. It is all very well to argue that only a few months will be needed in order to agitate the issues in this Court on a final basis. That contention needs to be compared with the fact that the impugned decision was given over two months ago now and that in the meantime the first defendant might reasonably have anticipated some finalisation of at least that aspect of her case that is due for consideration by claims assessor Buckley tomorrow.

27 Nor do I consider that this is a case where principles of futility are relevant or where there is an appropriate need to maintain an existing state of affairs in order to preserve the subject matter of the proceedings. At worst all that confronts the parties is the prospect that claims assessor Buckley's labours will be lost. There is an equally available inference that they will not.

28 In my opinion the following orders should be made:

1. The plaintiff's notice of motion filed in Court on 28 May 2013 is dismissed.

2. The costs of the motion are to be the first defendant's costs in the proceedings.

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Decision last updated: 31 May 2013