Court of Appeal Supreme Court New South Wales

• Medium Neutral Citation: Frost v Kourouche [2014] NSWCA 39
• Hearing dates: 26 February 2014
• Decision date: 07 March 2014
• Before: Beazley P at [1]; Basten JA at [2]; Leeming JA at [3]

Decision

1. Extend the time within which a notice of appeal is to be filed until 13 August 2013.

2. Appeal allowed.

3. Set aside the orders made by the District Court on 15 February 2013, and in lieu thereof, order that Ms Kourouche's motion filed 18 December 2012 be dismissed with costs.

4. Ms Kourouche to pay Ms Frost's costs of the appeal and the application for leave, excluding costs attributable to the failure to file the notice of appeal within time.

[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 - content of obligation to accord procedural fairness - review panel reviewing medical assessment under Motor Accidents Compensation Act - whether denial of procedural fairness - where review panel confronted applicant and gave opportunity to respond to inconsistencies - whether review panel obliged to grant adjournment, give opportunity to applicant to consult with her solicitor and then address panel - no practical injustice - no obligation to give warning by analogy with Parker v Director of Public Prosecutions (1992) 28 NSWLR 282 - no denial of procedural fairness - Motor Accidents Compensation Act, s 61(4).; MOTOR VEHICLE LAW - medical assessment certificate - power of court to reject certificate for denial of procedural fairness - no denial of procedural fairness established
• Legislation Cited: District Court Act 1973 (NSW), s 127; Health Insurance Act 1973 (Cth), s 106T; Motor Accidents Compensation Act 1999 (NSW), s 61, s 131; Suitors' Fund Act 1951 (NSW); Trade Practices Act 1974 (Cth); Uniform Civil Procedure Rules 2005 (NSW), r 51.16; Motor Accident Authority, "Guidelines for the assessment of the degree of permanent impairment", 1 October 2007, cl 1.43; Motor Accident Authority, "Medical Assessment Guidelines", 1 October 2008
• Cases Cited: Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576; Emad Trolley Pty Ltd v Shigar [2003] NSWCA 231; 57 NSWLR 636; Kioa v West (1985) 159 CLR 550; Lindsay v Health Care Complaints Commission [2004] NSWCA 222; McKee v Allianz Australia Insurance Ltd [2008] NSWCA 163; 71 NSWLR 609; Meeuwissen v Boden [2010] NSWCA 253; 78 NSWLR 143; Minister for Immigration and Citizenship v SZGUR [2011] HCA 1; 241 CLR 594; Parker v Director of Public Prosecutions (1992) 28 NSWLR 282; Plaintiff S10/2011 v Minister for Immigration and Citizenship [2012] HCA 31; 246 CLR 636; QBE Insurance (Australia) Ltd v Miller [2013] NSWCA 442; R v Hookman [No 2] (1993) 32 NSWLR 345; Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam [2003] HCA 6; 214 CLR 1; SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; 228 CLR 152; Traill v McRae [2002] FCAFC 235; 122 FCR 349; Victims Compensation Fund Corporation v Nguyen [2001] NSWCA 264; 52 NSWLR 213; Wingfoot Australia Partners Pty Ltd v Kocak [2013] HCA 43; 88 ALJR 52
• Category: Principal judgment
• Parties: Penelope Frost (appellant); Hind Kourouche (respondent)
• Representation: Counsel: KP Rewell SC (appellant); MA Robinson SC; J Gumbert (respondent); Solicitors: Moray & Agnew (appellant); Thomas Booler & Co (respondent)
• File Number(s): 2013/73622

Decision under appeal

• Jurisdiction: 9101
• Date of Decision: 2013-02-15 00:00:00
• Before: Finnane DCJ
• File Number(s): 2011/208748

Judgment

1 BEAZLEY P: I agree with Leeming JA.

2 BASTEN JA: I agree with the orders proposed by Leeming JA and with his reasons. The content of the obligation of a review panel carrying out a medical assessment under the Motor Accidents Compensation Act 1999 (NSW), to accord procedural fairness to the claimant, will depend on the nature of the function being exercised. That function is aptly identified by the High Court (in relation to an analogous scheme under Victorian legislation) in Wingfoot Australia Partners Pty Ltd v Kocak [2013] HCA 43; 88 ALJR 52 at [47]:

"The function of a Medical Panel is to form and to give its own opinion on the medical question referred for its opinion. In performing that function, the Medical Panel is doubtless obliged to observe procedural fairness.... It goes too far, however, to conceive of the function of the Panel as being either to decide a dispute or to make up its mind by reference to competing contentions or competing medical opinions. The function of a Medical Panel is neither arbitral nor adjudicative: it is neither to choose between competing arguments, nor to opine on the correctness of other opinions on that medical question. The function is in every case to form and to give its own opinion on the medical question referred to it by applying its own medical experience and its own medical expertise.

3 LEEMING JA: What is the content of the obligation to accord procedural fairness owed by a review panel reviewing a medical assessment under the Motor Accidents Compensation Act 1999 (NSW) (Act)? That is the issue arising on this appeal, because only if there has been a denial of procedural fairness does s 61(4) authorise a court to reject a certificate issued by an assessor or a panel of assessors.

4 The review panel revoked the original certificate which had found 25% whole person impairment and issued in its place a certificate finding nil whole person impairment, a finding not supported by the medical reports relied on by the appellant, who had sought the review. Nevertheless, for the reasons given below, I have concluded that the primary judge erred in finding there had been a denial of procedural fairness.

Factual background

5 In June 2011, the respondent Ms Kourouche commenced an action in the District Court against the appellant Ms Frost, whose vehicle was insured by Insurance Australia Ltd trading as NRMA Insurance (NRMA). Ms Frost admits by her defence that, while driving that vehicle, she collided with Ms Kourouche, a pedestrian, and that the collision was caused by Ms Frost's negligence. Ms Kourouche claims damages for economic loss and non-economic loss; Ms Frost does not admit that any of the claimed damages were caused by the collision.

6 The action was able to be commenced because Ms Kourouche's claim was certified as being exempt from assessment: see ss 92 and 108 of the Act and Emad Trolley Pty Ltd v Shigar [2003] NSWCA 231; 57 NSWLR 636. However, s 131 of the Act forbids a court from awarding damages for non-economic loss unless the degree of permanent impairment of the injured person as a result of the injury caused by the motor accident is greater than 10%. Section 131 reflects the "acknowledgement" in s 5(2)(b) of "the clear legislative intention to restrict the level of non-economic loss compensation in cases of minor injuries"; "minor injuries" are effectively identified by the 10% requirement and the restriction in such cases is complete. Ms Kourouche and Ms Frost and her insurer NRMA have been in dispute as to whether s 131 applies.

7 The Act envisages that disputes of that kind are to be determined by medical assessment, rather than the ordinary processes of a court. An assessor's certificate dated 15 November 2011 certifies that Ms Kourouche's physical injuries amounted to 0% whole person impairment. There has been no challenge to that certificate.

8 Ms Kourouche also claimed that she suffered psychological injury from the collision, which Assessor Prior of the Medical Assessment Service of the Motor Accidents Authority (Authority) assessed as amounting to 25% whole person impairment, by certificate dated 5 April 2012. His methodology included that Ms Kourouche has "Class 3 (11-30%)" permanent impairment for each of the categories "social and recreational activities" and "social functioning". Assessor Prior had before him reports from nine psychiatrists, one psychologist and her treating GP, and personally examined her on 5 April.

9 NRMA claimed that Assessor Prior failed to have regard to all of the material before him. Section 63(1) permitted NRMA to apply to the proper officer of the Authority to refer an assessment to a review panel. Although styled a "review", in truth the panel is determining afresh the medical assessment matters referred to it. That is confirmed by s 63(3A) which provides that the review is not limited to that aspect of the assessment alleged to be incorrect, and is to be "by way of a new assessment" of all the matters.

10 However, only if the proper officer was 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" would the referral take place: s 63(3). The proper officer's decision here (and elsewhere in Part 3.4 of the Act) constitutes a "gateway" or condition precedent to the carrying out of further medical assessment, and is reviewable: Meeuwissen v Boden [2010] NSWCA 253; 78 NSWLR 143 at [23]; QBE Insurance (Australia) Ltd v Miller [2013] NSWCA 442 at [5]-[6].

11 NRMA applied for a review of the assessment of psychological injury in June 2012. A copy was received by Ms Kourouche's solicitor on 14 June 2012. NRMA's application pointed to evidence from Ms Kourouche's Facebook and Twitter accounts to the effect that she had taken a holiday in April 2011, had attended a public forum in May 2011, and had a "great night with friends" in May 2011. NRMA's submission also referred to statements that she had presented a paper for International Women's Day in 2010 and had joined the Ruby Connection in March 2011. These were matters which, NRMA said, contradicted Ms Kourouche's statements to Assessor Prior and seemingly relied on by him that "she has done no public speaking", "denies speaking at conferences", "has no social activities with friends or relatives" and "is not involved in voluntary groups or community activities". NRMA submitted that although Assessor Prior had found "Class 3 (11-30%)" impairment in the "social and recreational activities" category, "the more appropriate class would have been class 1, no deficit".

12 Similarly, NRMA submitted that the same material "strongly contradicts the plaintiff's evidence and when considered, Assessor Prior ought to have assessed the claimant in class 1, no deficit" in the "social functioning assessment" category. Once again, Assessor Prior had recorded and (apparently uncritically) relied on statements that "she has lost all contact with previous friends and acquaintances" and that she was "totally isolated now" to conclude Ms Kourouche had suffered "Class 3 (11-30%)" impairment in relation to his assessment of this category.

13 NRMA's application made further submissions complaining of Assessor Prior's uncritical acceptance of Ms Kourouche's history in light of her statements on social media. It is not necessary to summarise them for the purposes of this appeal. NRMA's submission concluded as follows:

"The insurer submits that Assessor Prior's failure to consider the evidence before him, namely Dr Sydney-Smith, Twitter pages and Facebook pages suggesting a greater functioning than that disclosed by the plaintiff through the MAS examination would have resulted in reducing the assessment of whole person impairment to 7%, having found a median class of 2 and an aggregate score of 13.

In these circumstances, the insurer submits the correction of these errors are capable of altering the outcome of the assessment as the whole person impairment assessment is capable of being less than 10%."

14 The Authority's Medical Assessment Guidelines (as to which see further below) provide for a party to reply in writing to an application for a review of an assessment. Ms Kourouche's reply was not tendered in the court below. When the appeal was heard, the Court was told, without objection, that Ms Kourouche's lawyers had supplied a reply. That statement from the Bar table is consistent with the reasons of the review panel recording that it had before it Ms Kourouche's "reply form and attached documents".

15 I would infer, in light of the terms of NRMA's application as summarised above, that Ms Kourouche and her lawyers were aware that NRMA was contending that (a) her history as given to Assessor Prior was inconsistent with her social media postings, (b) the latter were to be preferred, and (c) NRMA sought a replacement assessment of whole person impairment of less than 10%, which would, if it issued, prevent the District Court from awarding her any damages for non-economic loss. To anticipate the language of the authorities referred to below, those were all matters "obviously open on the known material".

16 The proper officer formed the state of satisfaction required by s 63(3) and referred NRMA's application to a panel of three assessors. No challenge has been made to that decision. Assessors Newlyn, Rose and Virgona reviewed the documentary material before them and determined that it was necessary for them to re-examine Ms Kourouche. The examination occurred on 26 September 2012. When she was notified of the examination by the three assessors, it must have been plain to Ms Kourouche and her lawyers that the review panel had formed the view that they could not carry out their function on the papers. It must also have been plain that one purpose of the re-examination was to test the veracity of Ms Kourouche's history.

17 The review panel's certificate, dated 4 October 2012, records the history that Ms Kourouche gave to the panel, and the questions she was asked. By way of example, the certificate records:

"When it was put to her that the [Twitter and Facebook] accounts indicate that she had read books, attended events, had gone out with friends and had gone away, she denied all of it, stating that she was 'delusional, making it up, I'm out of body, the voices were so relentless'. She stated that the insurance company caused her 'so much trauma, caused the voices telling me to kill myself, it was relentless.'"

18 No part of Ms Kourouche's complaint was that the panel failed to confront her with the material which might be used to draw an adverse inference, and so it is not necessary to provide any further examples of the way in which that process (so far as it is disclosed by the panel's reasons) took place.

19 The concluding section of the panel's reasons included the following passages:

"C. Panel Deliberations

The claimant was in a minor traffic accident. It has been determined that she suffered minor injuries and she had a 0% WPI as a result of the physical injuries. Despite this she has ongoing complaints of pain and disability associated with it. Her descriptions of her pain and the impacts on her body are exaggerated and bizarre.

The Panel's major difficulty with this case was the claimant's unreliability as a historian. The Panel was at pains to put the inconsistencies to her, she would often react with anger or outrage to this and her subsequent explanations shed little light on matters, as follows:

...

Regarding the Twitter/Facebook entries: Her explanation for the Twitter and Facebook entries, as being 'made up', was not considered credible by the Panel. There is also ample evidence, provided by her treating psychiatrist and others, that she has reported performing a range of activities in the time since the accident, including socializing, going out with friends, travelling interstate, giving a paper at a conference.

...

Regarding her ongoing psychological symptoms: the description of these is exaggerated and bizarre, and symptoms are dramatically embellished, if not fabricated, for example, feeling cars on top of her, adopting the persona of the driver and 'killing souls', seeing ancestors, hearing voices when driving, etc. The symptom profile was not consistent with any recognized psychiatric disorder.

...

In conclusion, the three panellists agreed that the claimant's presentation was characterized by gross exaggeration if not fabrication, to the point where much of the history and presentation is in question. The Panel has found it impossible to determine, with any degree of confidence, the presence of a specific psychiatric disorder as a result of the accident. It appears that she suffered soft tissue injuries that have resolved, that she has developed a Chronic Pain Disorder and that, if she had a psychiatric reaction as a result of the accident, it was probably mild and comprised mixed anxiety and depressive symptoms. It is compelling that her treating psychiatrist noted that, in 2010, she 'only becomes upset and agitated when she talks about the accident. If she "pushes it away" she can function normally for a time'. Although there may be persisting mild anxiety and depressive symptoms, associated with her chronic pain disorder, her history is so unreliable that an accurate diagnosis cannot be made. Similarly, an accurate assessment of WPI is impossible due to the distortions.

In summary, the Panel found that there is no diagnosis attributable to the subject motor accident, therefore an assessment of whole person impairment is not indicated.

4. Panel Decision

The Review Panel found that the accident WAS a cause of the following claimed psychiatric injuries:

· Nil psychiatric disorder related to the motor accident."

20 The review panel accordingly revoked Assessor Prior's certificate and replaced it with a certificate of nil psychiatric disorder related to the motor accident.

Section 61(4) and the reasons of the primary judge

21 Disputes about certain matters, defined as "medical assessment matters", may be referred to the Motor Accidents Authority for assessment: ss 57, 58 and 60. They often are referred, not least because of s 132. Medical assessments are thus an important part of arriving at a claimant's entitlement to damages for claims regulated by the Act: McKee v Allianz Australia Insurance Ltd [2008] NSWCA 163; 71 NSWLR 609 at [20]-[22]. One type of medical assessment matter is a disagreement between a claimant and an insurer about whether the degree of permanent impairment of the injured person as a result of the injury caused by the motor accident is greater than 10%: s 58(1)(d). The assessor to whom a referral is made is required to give a certificate as to the matters referred, and that certificate is, relevantly, "conclusive evidence as to the matters certified in any court proceedings": s 61(1) and (2). However, that conclusive evidence provision must be read with the qualified power to reject a certificate conferred by s 61(4), which is central to this appeal:

"(4) In any court proceedings, the court may (despite anything to the contrary in this section) reject a certificate as to all or any of the matters certified in it, on the grounds of denial of procedural fairness to a party to the proceedings in connection with the issue of the certificate, but only if the court is satisfied that admission of the certificate as to the matter or matters concerned would cause substantial injustice to that party."

22 By motion filed on 18 December 2012, Ms Kourouche applied under s 61(4) for the District Court to reject the panel's certificate as to all of the matters in it. Her application was heard and determined by the primary judge on 15 February 2013, in advance of the trial (this was plainly a sensible course to adopt). His Honour found in Ms Kourouche's favour, rejected the certificate and remitted the matter to the Authority to be determined by a differently constituted panel.

23 The decision of the primary judge being interlocutory, leave was required: District Court Act 1973 (NSW), s 127(2)(a). Leave to appeal was granted on 16 July 2013, over the opposition of Ms Kourouche. Inadvertently, a notice of appeal was only filed on 13 August 2013, outside the seven days specified by r 51.16(1)(a) of the Uniform Civil Procedure Rules 2005 (NSW). In the absence of any opposition or any suggestion of prejudice, the short extension of time required should be granted.

24 Section 61(4) raised two issues, and two issues only, before the primary judge. The first was whether there had been a denial of procedural fairness to Ms Kourouche in connection with the issue of the certificate. The second was whether the admission of the certificate as to the matters concerned would cause substantial injustice to Ms Kourouche.

25 It appears that the argument before his Honour ranged more widely, as did his Honour's reasons for rejecting the certificate. Among the challenges suggested in Ms Kourouche's written submissions and his Honour's reasons was what amounted to a constructive failure to exercise jurisdiction (principally based on the last two paragraphs of the "Panel deliberations" section of its reasons). However, all that s 61(4) authorised his Honour to decide were the two issues referred to above, and in oral address Ms Kourouche made it clear that she reserved the right to challenge the panel's review on grounds not within the limited jurisdiction of the District Court. Nothing in these reasons should be read as addressing any issue outside those raised by s 61(4).

26 Of the two issues before him, his Honour did not expressly assess the basis on which he was satisfied that the admission of the certificate would cause substantial injustice to Ms Kourouche. However, senior counsel for Ms Frost took no point on that account. It is therefore unnecessary to express a view as to the content of the second issue, which may in some situations be far from straightforward.

27 The primary judge considered that the panel's conclusion that Ms Kourouche suffered no identifiable psychological disorder at all was "so extraordinarily different" from the bulk of the medical evidence that:

"She should have been told by this panel, they having spoken to her and reviewed all this material, that they wanted her to go and talk to her solicitor and they wanted her to come back again and tell them why they were not entitled to come to the conclusion that she suffered no disorder at all and why they were wrong in considering that she was in fact a liar and cheat and was fabricating her case."

28 His Honour went on to add that he thought:

"it would have been appropriate for her solicitors to have at least been invited to come along and address [the panel] as to why they were not correct in coming to the conclusion that she was merely faking her case."

29 Counsel for Ms Kourouche shrank from embracing this latter incident of the obligation to accord procedural fairness. It was not contained in his written submissions, and sits ill with the prohibition upon legal, medical or other representatives of the claimant or any other party from being present during a medical examination unless the proper officer gives prior approval: cl 11.7, Medical Assessment Guidelines (as to which see further below).

30 It was not necessary for Ms Kourouche to embrace this aspect of the reasons. Ms Kourouche proceeded on the correct basis that the orders of the primary judge could be sustained if procedural fairness required, in the circumstances of this case, an obligation upon the panel to issue a warning as to its potential finding, grant an adjournment so that Ms Kourouche could obtain further legal advice, and permit her to address the panel on a subsequent occasion.

The duty and content of the obligation to accord procedural fairness

31 It was common ground that the panel was obliged to accord procedural fairness to Ms Kourouche. The "common law" usually will imply, as a matter of statutory interpretation, a condition that a power conferred by statute upon the executive branch be exercised with procedural fairness to those whose interests may be adversely affected by the exercise of that power: Plaintiff S10/2011 v Minister for Immigration and Citizenship [2012] HCA 31; 246 CLR 636 at [97]. Gummow, Hayne, Crennan and Bell JJ placed quotation marks around "common law" to explain that it was unproductive and a false dichotomy to ask whether the obligation to accord procedural fairness was a common law duty or an implication from statute, once it is observed that the principles and presumptions of statutory construction are part of the common law.

32 It was also common ground that the content of the obligation upon the panel to accord procedural fairness extended to confronting the applicant with inconsistencies and providing him or her with an opportunity to respond. That is consistent with what has often been held, in a wide range of contexts, including Kioa v West (1985) 159 CLR 550 at 587 ("the need to bring to a person's attention the critical issue or factor on which the administrative decision is likely to turn so that he may have an opportunity of dealing with it"). It is reflected in cl 1.43 of the "Permanent Impairment Guidelines:  Guidelines for the assessment of permanent impairment of a person injured as a result of a motor vehicle accident", dated 1 October 2007, which (like the Medical Assessment Guidelines) bound the members of the panel by reason of s 65(1) of the Act.

33 The appeal was conducted on the basis that this occurred during the examination itself on 26 September 2012. It was no part of Ms Kourouche's complaint that this had not occurred.

34 The gravamen of Ms Kourouche's submissions to the primary judge and on appeal was that the evidence before the review panel pointed to a range of expert opinion as to whole person impairment for psychological injury from 7% to 25%. It was said that the possibility that the review panel might form the view, against the totality of that body of professional opinion, that in fact there was nil whole person impairment was "an incredible and wholly unforeseen and unexpected finding" such that procedural fairness required an adjournment, an opportunity to be given to Ms Kourouche to consult her lawyers, and an opportunity to address the panel further. In substance, that submission was accepted by the primary judge.

35 There is a well-established line of authority for a complementary proposition to that in Kioa referred to above to the effect that critical facts need to be drawn to the claimant's attention. The complementary proposition is that it is not necessary, in order to discharge the obligation to accord procedural fairness, to go further.

36 In Minister for Immigration and Citizenship v SZGUR [2011] HCA 1; 241 CLR 594 at [9], French CJ and Kiefel J said (emphasis added):

"Procedural fairness requires a decision-maker to identify for the person affected any critical issue not apparent from the nature of the decision or the terms of the statutory power. The decision-maker must also advise of any adverse conclusion which would not obviously be open on the known material. However, a decision-maker is not otherwise required to expose his or her thought processes or provisional views for comment before making the decision."

37 The distinction drawn in that passage reflects what was said by a unanimous Full Federal Court in Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576 at 592, which had in turn been endorsed by a unanimous High Court in SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; 228 CLR 152 at [29]. The same distinction was applied in this Court in Victims Compensation Fund Corporation v Nguyen [2001] NSWCA 264; 52 NSWLR 213 at [40].

38 The reasons of the primary judge did not refer to, and are inconsistent with, this line of authority. So far as is disclosed by the materials available to this Court, his Honour was not taken to those decisions.

39 It is possible for statute to impose additional incidents to the obligation to accord procedural fairness. In Alphaone at 592, the pre-decision conference process under the Trade Practices Act 1974 (Cth) was given as an example. Another is the obligation to provide a draft determination to a person under review in accordance with s 106T of the Health Insurance Act 1973 (Cth) (as to which see Traill v McRae [2002] FCAFC 235; 122 FCR 349 at [141]-[142]). However, statutory provisions like those are unusual. In the cases to which they apply, they impose an obligation substantially greater than that to which even courts must adhere.

40 There is nothing in the Act to support any such heightened obligation. To the contrary, the self-evident purpose of non-curial assessment of disputes as to permanent impairment was to reduce the role of courts in respect of claims to which assessment applied. There is no reason for any greater content to the obligation to accord procedural fairness to be discerned in a non-curial procedure. That conclusion is wholly consistent with what was said, of the obligation to afford procedural fairness in a substantially similar regime, in Wingfoot at [47].

41 Ultimately, the question of the content of the obligation to accord procedural fairness is one of practical justice. Gleeson CJ said that "Whether one talks in terms of procedural fairness or natural justice, the concern of the law is to avoid practical injustice": Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam [2003] HCA 6; 214 CLR 1 at [37]. In connection with the Act, in McKee at [8], Allsop P said that "procedural fairness would require any and all necessary steps to ensure a fair hearing".

42 The materials before the Court do not suggest any practical injustice or absence of a fair hearing. It was perfectly clear that NRMA was contending that Ms Kourouche's claimed psychological conditions did not accord with what was recorded in her social media profile. It was perfectly clear that NRMA submitted that Ms Kourouche's history was false. It was perfectly clear that NRMA submitted that the review panel should certify a psychological impairment of less than 10% such that s 131 would apply. And it was perfectly clear when the review panel determined to re-examine Ms Kourouche that the possibility that all or some of its members might disbelieve her history was real. This is a not a case where the possibility of the panel's adverse conclusion ought to have taken Ms Kourouche by surprise.

43 Conversely, I find it difficult to see how the course proposed by the primary judge is necessary to avoid practical injustice or to ensure a fair hearing. Suppose Ms Kourouche consulted her solicitor, what would he or she advise? The solicitor would not have the transcript of what had taken place. The matter before the panel was a medical, not a legal matter, and the panel plainly was entitled to apply its expertise to assess all of the "medical assessment matters" before it. Ms Kourouche had already had the opportunity of receiving legal advice as to what might occur when she was re-examined in light of the terms of NRMA's application for review. Nothing was identified which could further be put by her, or on her behalf, which would avoid injustice or ensure fairness.

44 There is much in the guidelines corroborative of that conclusion, to which the appellant referred in writing and orally. It is plain that this Act leaves the detail of its operation to be set out in guidelines. In particular, s 65(1) provides that medical assessments are subject to the relevant provisions of the Authority's guidelines relating to the procedures for the referral of disputes for assessment, review of assessment, and the procedure for assessment. The Act required guidelines relating to assessment to be issued within three months after the Act commenced: s 45(2) and requires them to be gazetted (s 44(4)) and tabled, and authorises them to be disallowed as if they were delegated legislation: s 45(4).

45 However, contrary to the appellant's submissions, it is not legitimate to resort to the guidelines in order to understand the content of the Act, including the limits of the power of a review panel: McKee at [6] and [95]. If in truth the Act, as construed in accordance with the common law in the manner stated in Plaintiff S10/2011, impliedly requires content to be given to the obligation to accord natural justice in a way which is inconsistent with the guidelines, then the guidelines must yield to the Act.

46 Ms Kourouche invoked, by way of analogy, the warning to be given to an appellant in a sentencing appeal that an increase in sentence might be possible. It was confirmed in Parker v Director of Public Prosecutions (1992) 28 NSWLR 282 that giving such a warning was not merely good sentencing practice, but also that failure to do so could amount to a denial of natural justice. But the analogy is inapt. The point of a Parker direction is to permit the appellant the chance to withdraw his or her appeal: at 297. The reasoning is capable of applying by analogy in a civil contexts: Lindsay v Health Care Complaints Commission [2004] NSWCA 222 and Nguyen at [44]-[46]. But it has no bearing on the way in which the review panel is to determine the medical assessment matters which have been referred to it at the instance of the other party.

47 The application for a review was made by NRMA, not Ms Kourouche. There was no process for Ms Kourouche to withdraw. To the contrary, the litigation she had commenced required a determination of the issue raised by s 131, and a proper officer having referred the matter to a review panel on NRMA's application, the Act required that to be done.

Orders

48 It follows that the appeal should be allowed and the orders of the primary judge set aside. In the event that this Court reached that conclusion, Ms Kourouche asked for a certificate under the Suitors' Fund Act 1951 (NSW). In general terms, that Act provides a measure of compensation to the respondent to an appeal where an appeal is allowed through no fault of the respondent. That is not this case. Here, so far as the materials disclose, Ms Kourouche invited the primary judge to adopt the reasoning which I have concluded to be erroneous (the oral submissions were not before the Court, but see paragraphs 40 and 41 of the written submissions at Blue 273) and indeed the primary judge said that he was acceding to Ms Kourouche's submissions. Although there are cases where a certificate has been ordered where the court has adopted a party's submissions: R v Hookman [No 2] (1993) 32 NSWLR 345 at 346, I do not regard this as an appropriate case. The submission advanced by Ms Kourouche and accepted by the primary judge which occasioned the need for this appeal was contrary to principle and unsupported by authority.

49 Accordingly, the formal orders I would propose are: 1. Extend the time within which a notice of appeal is to be filed until 13 August 2013. 2. Appeal allowed. 3. Set aside the orders made by the District Court on 15 February 2013, and in lieu thereof, order that Ms Kourouche's motion filed 18 December 2012 be dismissed with costs. 4. Ms Kourouche to pay Ms Frost's costs of the appeal and the application for leave, excluding costs attributable to the failure to file the notice of appeal within time.

**********

Amendments

04 November 2014 - The title of the Guidelines stated in the 3rd sentence has been amended to include the full title and subtitle.
Amended paragraphs: 32

04 November 2014 - In the 3rd sentence, the words "MAA Medical Guidelines" have been replaced with "the Authority's guidelines".
Amended paragraphs: 44

Decision last updated: 04 November 2014