Supreme Court New South Wales

• Medium Neutral Citation: Allianz Australia Insurance Ltd v Tarabay [2013] NSWSC 141
• Hearing dates: 29/11/2012
• Decision date: 01 March 2013
• Jurisdiction: Common Law
• Before: Rothman J

Decision

(1) An order in the nature of certiorari quashing the decision of the Motor Accidents Authority of New South Wales made on 13 June 2012 purportedly pursuant to s 92(1)(b) of the Motor Accidents Compensation Act 1999 to refuse to issue a certificate of exemption in relation to the claim by Joey Tarabay exempting the claim from assessment under Part 4.4 of the aforesaid Act;

(2) An order in the nature of prohibition preventing the Motor Accidents Authority of New South Wales and Joey Tarabay, their officers, servants or agents from acting on or taking any further step in reliance on the decision of 13 June 2012;

(3) An order in the nature of mandamus requiring the Motor Accidents Authority of New South Wales to deal with the exemption application of Allianz Australia Insurance Limited in relation to the motor accidents claim of Joey Tarabay in accordance with law;

(4) An order in the nature of prohibition preventing the second defendant from further dealing with the claim by Joey Tarabay for compensation under the Motor Accidents Compensation Act 1999;

(5) The first defendant shall pay the plaintiff's costs of and incidental to these proceedings, as agreed or assessed;

(6) Pursuant to s 6 of the Suitors' Fund Act 1951, the first defendant is granted an indemnity certificate in relation to the costs with respect to these proceedings.

• Catchwords: ADMINISTRATIVE LAW - claims assessment under Motor Accidents Compensation Act - decision not to exempt claim from assessment process - allegation of fraud or forgery - wrong question asked - relevant consideration not considered - jurisdictional error - error of law on the face of the record - orders granted
• Legislation Cited: Motor Accidents Compensation Act 1999
• Cases Cited: Allianz Australia Insurance Limited v Motor Accidents Authority of NSW [2006] NSWSC 1096; Attorney General (NSW) v Quin [1990] HCA 21; (1990) 170 CLR 1; Concrete Pty Ltd v Parramatta Design & Developments Pty Ltd [2006] HCA 55; (2006) 229 CLR 577; Craig v State of South Australia [1995] HCA 58; (1995) 184 CLR 163; Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337; Graham Kelly v Motor Accidents Authority of New South Wales [2006] NSWSC 1444; Livesey v New South Wales Bar Association [1983] HCA 17; (1983) 151 CLR 288; Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323; R v Watson; Ex parte Armstrong [1976] HCA 39; (1976) 136 CLR; Rouvinetis v Knoll [2013] NSWCA 24; Zurich Australian Insurance Ltd v MAA and Anor [2006] NSWSC 845
• Category: Principal judgment
• Parties: Allianz Australia Insurance Ltd (Plaintiff); Joey Tarabay (First Defendant); Helen Wall, CARS Assessor (Second Defendant); Motor Accidents Authority of New South Wales (Third Defendant)
• Representation: Counsel: M A Robinson SC/J Gumbert (Plaintiff); S Bliim (First Defendant); Crown Solicitor's Office - Submitting appearance (Second and Third Defendants); Solicitors: Sparke Helmore Lawyers (Plaintiff); Gerard Malouf & Partners (First Defendant); Crown Solicitor's Office - Submitting appearance (Second and Third Defendants)
• File Number(s): 2012/218207
• Publication restriction: None

Judgment

1 HIS HONOUR: The plaintiff, Allianz Australia Insurance Ltd (hereinafter "Allianz"), by summons filed 13 July 2012, seeks judicial review of the decision of a claims assessor (the second defendant, hereinafter "the Assessor") with the Motor Accidents Authority of New South Wales (the third defendant, hereinafter "the Authority"). The Assessor, in a decision, reasons for which were published on 13 June 2012, declined to exempt the claim by Mr Tarabay from a Claims Assessment and Resolution Service ("CARS") assessment. The decision of 13 June 2012 (hereinafter "the decision") is the subject of an application for judicial review.

2 Very briefly, Mr Tarabay was involved in a motor vehicle accident on 6 November 2007 and was injured. Mr Tarabay claimed compensation and the Authority sought to deal with the matter.

3 The matter had originally been listed for an assessment conference on 10 April 2012, but by correspondence, dated 30 March 2012, Allianz lodged an Application for Exemption. It is the Application for Exemption which was decided by the Assessor on 13 June 2012. Allianz has admitted breach of duty of care for the purpose of the proceedings before the Authority.

4 Before the Assessor, Allianz did not suggest that the Motor Accidents Compensation Act 1999 (hereinafter "the Act") exempted the claim from assessment before the Authority. Rather, Allianz sought an exemption under s 92(1)(b) of the Act requesting the Assessor to determine that the claim was "not suitable for assessment" before CARS.

5 Allianz conceded, before the Assessor, that the determination that a matter is not suitable for assessment is "discretionary" (by which it meant that the exemption was not mandated by the provisions of the Act) from which Allianz has not resiled in the proceedings before the Court.

6 Allianz alleges a number of errors, some of which are difficult to state in summary form. The first error asserts, essentially, an error of law or error of jurisdiction by the Assessor in that the Assessor classified claims, being reliance on a fraudulent document and the making of false and misleading statements either by Mr Tarabay or third parties, merely as "issues to be resolved" capable of being resolved by cross-examination of the claimant.

7 Allianz submits that the Assessor identified the wrong issue, asked herself the wrong question, failed to have regard to relevant considerations, denied natural justice and thereby constructively failed to exercise the statutory power reposed in the Assessor.

8 The second error is an allegation of apprehended bias evident, it is alleged, from the decision.

9 The third error that Allianz alleges relates to the determination by the Assessor of the means by which the claim of false or misleading statements could be resolved in the CARS assessment process.

10 The fourth error, alleged by Allianz, related to the conclusion of the Assessor in the decision that the claimant had not made a statement knowing that it is false and misleading in a material particular, pursuant to s 117 of the Act. Allianz submits that this determination evidenced that the Assessor was asking herself the wrong question, had identified the wrong issue and was relying on irrelevant material. The fourth error, it is submitted, is a jurisdictional error that vitiates the decision.

The facts

11 The circumstances of the motor vehicle accident are irrelevant to anything with which the Court is concerned. The only material that is relevant is that there was an accident on 6 November 2007, involving Mr Tarabay, and Allianz has accepted responsibility for the damages arising from that accident. Otherwise the only relevant material is that which Mr Tarabay utilised to support his claim and his assertion as to the level of damage suffered.

12 In the proceedings before the Authority, the claimant sought damages of $752,425.90 of which economic loss made up approximately $344,634.79. In support of that claim past earnings were relied upon, evidence of which included a PAYG payment summary from Wales Truck Repairs for the year ending 30 June 2006 indicating that Mr Tarabay earned $52,832.00. Before the Authority, Allianz submitted that the document was false, misleading and "potentially fraudulent".

13 By letter dated 20 April 2010 addressed to the solicitors for Mr Tarabay (in these proceedings and below) Wales Truck Repairs asserted that Mr Tarabay was employed only from 3 October 2006 until 13 February 2007, and attached records that payment was significantly less ($14,315) than the amount disclosed on the PAYG payment summary. Allianz alleged, before the Authority, that Allianz was now in possession of sufficient information to allege that the PAYG payment summary was fraudulent.

14 The next issue relates to Mr Tarabay's reliance on a letter from Yennora Prestige Smash Repairs ("Yennora") dated 26 November 2007 indicating that he had been employed with the company for eight months commencing 16 April 2007. In contrast, Mr Tarabay's 2007 tax return revealed no earnings from Yennora. Despite correspondence from Allianz to Yennora, no response had been received.

15 There are other documents relating to Mr Tarabay's employment with Yennora. In particular, assertions are made on a resume the effect of which was that Mr Tarabay alleges he was working for Yennora somewhere between 10 and 22 months before Yennora had commenced trading. Of course, the resume is not relied upon as evidence in the proceedings.

16 The last aspect of the evidence upon which Allianz relied was representations made by Mr Tarabay relating to his employment at Ultratune. On the one hand, Mr Tarabay's solicitors, by letter dated 11 February 2010, indicated that their instructions were that Mr Tarabay had never worked for Ultratune.

17 On the other hand, Allianz has received a letter from Ultratune, undated, emailed on 2 November 2011 indicating that Mr Tarabay was a full time employee for four years earning $1,150 per week. The letter from Ultratune indicates that a computer virus had "wiped out" all of its records in relation to Mr Tarabay. Ultratune Fairfield, is a business name owned by G T Pit Stop Pty Ltd, the sole secretary/director and shareholder being Mr Tarabay's brother.

18 The claim for exemption before the Authority related to a claim for false and misleading statements upon which Mr Tarabay relied. Allianz, before the Authority, disavowed a submission that there was "fraud" of a kind that would enliven the provisions of s 92(1)(a) of the Act and require an exemption. However, given Mr Tarabay's reliance upon the documents, even if the documents were compiled by another, Mr Tarabay would be involved in a fraud, if he were to have had any knowledge of the false or misleading nature of the documents upon which he relied.

19 I make it clear that the foregoing is the allegation of Allianz. The Court, as presently constituted, has not determined and is not determining whether the documents are misleading or false or whether the documents that are false are those that indicate a higher or lower income level. Nevertheless, in order to understand the context in which the Assessor was deciding the issues before her, the foregoing allegations are reiterated.

Scheme of the Act

20 This Court has described the scheme established by the Act on a number of occasions.

21 The purpose of the legislation was the establishment of a new scheme for motor accident compensation that, generally, did not involve curial proceedings. Medical assessors resolve differences between injured persons and the relevant insurer as to the extent of the injury and whether the alleged accident was the cause of the injury. That assessment process provides for an internal right of review to a Review Panel. The assessment and the review are performed by medical assessors.

22 Further, the Act requires insurers to endeavour to resolve claims justly and expeditiously and such claims may be resolved by settlement or otherwise. In that context, insurance companies are required to give notice of their attitude to liability. In this case, Allianz has given that written notice and admitted liability.

23 There are also requirements on the making of offers of settlement and, once liability has been admitted, the insurance company is required to cover hospital, medical and other expenses and to take reasonable steps for the medical rehabilitation of any claimant.

24 There are complementary duties imposed upon claimants. As a claimant, Mr Tarabay is required under the Act to cooperate fully with Allianz as to the claim by providing enough information to satisfy Allianz as to the validity of the claim and to facilitate an early offer of settlement. Mr Tarabay is required to answer reasonable requests for particulars and to provide copies of documents that have been sought.

25 Some claims are the subject of court proceedings. Most claims will be assessed by Claims Assessors in accordance with Guidelines that have been promulgated. It is a criminal offence for an insurer to contravene an obligation imposed upon it by the Act and it is a criminal offence for a person knowingly to make a statement that is false or misleading in a material respect (s 117 of the Act).

26 Further, if fraudulent claims are made, the person making the claim is liable to repay the amount of financial benefit gained by the fraud. The same applies to insurance companies, although in reverse.

27 It is unnecessary to set out the statutory provisions giving rise to the foregoing. The foregoing analysis is not in issue in the proceedings. It is necessary to set out or summarise some provisions.

28 The objects of the Act include an object to encourage early and appropriate treatment and rehabilitation and also include an object to deter fraud in connection with compulsory third party insurance (see s 5(1)(a), (b) and (g) of the Act). Not unusually nowadays, the Act requires a person exercising discretion under the Act to do so "in the way that would best promote the objects of this Act or of the provision concerned": s 6 of the Act.

29 By operation of s 69(1) of the Act, the Authority may issue Guidelines for or with respect to procedures for the assessment of claims under Part 4.4 and associated matters. Part 4.4 deals with claims assessment and resolution. It contains s 92, which is in the following terms:

"92 Claims exempt from assessment

(1) A claim is exempt from assessment under this Part if:

(a) the claim is of a kind that is exempt under MAA Claims Assessment Guidelines or the regulations, or

(b) a claims assessor has made a preliminary assessment of the claim and has determined (with the approval of the Principal Claims Assessor) that it is not suitable for assessment under this Part.

(2) If a claim is exempt from assessment under this Part, the Principal Claims Assessor must, as soon as practicable, issue the insurer and claimant with a certificate to that effect (enabling court proceedings to be commenced in respect of the claim concerned)."

30 An assessment under Part 4.4 on the issue of liability is not binding on any party: s 95(1) of the Act. Yet, if an insurer has accepted liability and the claimant has accepted the amount of damages, an assessment under Part 4.4 of the amount of damages is binding: s 95(2) of the Act.

31 Claims assessors are appointed by the Authority from amongst suitably qualified persons: s 99(1) of the Act. By s 106 of the Act, claims assessments under Part 4.4 are subject to the relevant Guidelines relating to those assessments and the Authority is empowered to arrange training and information for claims assessors to promote accurate and consistent assessments.

32 Under Part 4.5 (which commences with s 107) Mr Tarabay is precluded from commencing court proceedings in relation to the accident, unless, relevantly, a certificate has been issued in respect of the claim under s 92 of the Act: s 108 of the Act.

33 The relevant Guidelines, issued under s 69 of the Act, set out further objects which are to be used in the interpretation of the Guidelines, including: the provision of a timely, fair and cost effective system for assessments under the Act that is accessible, transparent, independent and professional; the assessment of claims and disputes fairly and according to the substantial merits of the application, with as little formality and technicality as is practicable and minimising cost; ensuring the quality and consistency of decision making; making appropriate use of the knowledge and experience of assessors; and establishing and maintaining effective communication and liaison with stakeholders.

34 Claims for exemption are dealt with under Division 2 of the Guidelines, clause 8 of which is, relevantly, in the following terms:

"8.2 The claimant, the insurer, or both may make an application to the PCA for a certificate of exemption under section 92(1)(a) pursuant to this chapter.

(Note: For provisions regarding making an application to an Assessor that a claim is not suitable for assessment and is exempt under section 92(1)(b) see Chapter 14 at clause 14.11 and following.)

8.3 A separate application is required for each claim that a party seeks to have exempted.

...

8.6 When an application for exemption is made under this chapter the PCA is to arrange for the Determination Review of the matter to consider:

8.6.1 the eligibility of the matter for determination in accordance with Chapter 2;

8.6.2 whether the application and/or reply are properly made in accordance with Chapter 3;

8.6.3 whether further information or documentation is required; and/or

8.6.4 whether or not the claim is exempt from assessment.

8.7 The PCA is to ensure that a Determination Review of the matter is undertaken within 5 days of the due date for a reply under clause 3.15 or within 5 days of the acknowledgement of the reply under clause 3.20, whichever is the later.

8.8 If a claim is to be exempted under section 92(1)(a), the PCA or CAO on behalf of the PCA, must issue a certificate of exemption within 5 days of the Determination Review date.

...

8.11 For the purpose of section 92(1)(a), the PCA shall issue a certificate of exemption when satisfied that, as at the time of the consideration of the application, the claim involves one or more of the following circumstances:

...

8.11.6 the insurer alleges that the claim is a fraudulent claim in terms of the circumstances of the accident giving rise to the claim.

(Note: For example where it is alleged that the accident may have been staged or where a person claiming to have been a passenger in the vehicle is alleged to have been the driver of the vehicle.)"

35 The Guidelines set out further criteria for the grant of an exemption and in particular deal with exemptions under s 92(1)(b) of the Act, relevantly, in the following terms:

"14.11 For the purpose of section 92(1)(b), an Assessor may, in dealing with an application for general assessment and following a preliminary assessment of the claim, determine that the claim is not suitable for assessment.

...

14.16 In determining whether a claim is not suitable for assessment, an Assessor and the PCA shall have regard to the circumstances of the claim as at the time of the preliminary determination including, but not limited to:

14.16.1 whether the claim is exempt under section 92(1)(a) because the claim involves one or more of the circumstances set out in clause 8.11;

14.16.2 the heads of damage claimed by the claimant and the extent of any agreement by the insurer as to the entitlement to those heads of damage;

14.16.3 whether the claim involves complex legal issues;

14.16.4 whether the claim involves complex factual issues;

14.16.5 whether the claim involves complex issues of quantum or complex issues in the assessment of the amount of the claim including but not limited to major or catastrophic, spinal or brain injury claims;

14.16.6 whether the claimant has been medically assessed and is entitled to non-economic loss pursuant to section 131 and the claim involves other issues of complexity;

14.16.7 whether the claim involves complex issues of causation in respect of the relationship between the accident, the injuries sustained and disabilities arising from it including but not limited to multiple accidents or pre-existing injuries or medical conditions;

14.16.8 whether the insurer is deemed to have denied liability under section 81(3);

14.16.9 whether the claimant or a witness, considered by the Assessor to be a material witness, resides outside New South Wales;

14.16.10 whether the claimant or insurer seeks to proceed against one or more non-CTP parties; and/or

14.16.11 whether the insurer makes an allegation that a person has made a false or misleading statement in a material particular in relation to the injuries, loss or damage sustained by the claimant in the accident giving rise to the claim.

(Note: If an insurer makes an allegation of 'fraud' in terms of the circumstances of the accident, the matter will be exempt under section 92(1)(a) and clause 8.11.6. If an insurer makes an allegation that a person has made a false or misleading statement in a material particular in relation to the injuries, loss or damage sustained by the claimant in the accident, the insurer may be required to provide particulars in writing of the general nature of any such allegation under clause 17.13, and an Assessor may then consider whether a matter is not suitable for assessment under clause 14.11 to 14.16, particularly in light of clause 14.16.11.)"

36 It is necessary, at least briefly, to reiterate the nature of proceedings before an assessor. The proceedings are informal. By Chapter 15 (clause 15.4.2) the examination of parties and witnesses is usually by the Assessor and questions by other parties to witnesses may only be put as directed by the Assessor.

37 Further, pursuant to Guideline 15.4.3 the Assessor may allow questioning of a witness by another party's legal representative, but may make that questioning subject to any limitations determined by the Assessor.

38 The Assessor questions, or may question, a party or witness to such extent as the Assessor thinks proper, but the Assessor cannot compel any party or witness to answer any question.

39 If, in the last mentioned circumstance, a party fails to answer a question or a witness fails to answer a question, the Assessor can have regard to that failure in the determination of the assessment, unless the party has a reasonable excuse for that failure to answer: see Guideline clause 15.4.5.

40 By Guideline clause 17.13, the Assessor is empowered to require a party, making an allegation that a person has made a false or misleading statement relating to injuries, loss or damage, to provide particulars in writing of the general nature of such allegation (but not necessarily the evidence or proof of the allegation), sufficient to enable the Assessor to determine whether or not the claim is suitable for assessment in accordance with the provisions of s 92(1)(b) of the Act.

The decision below

41 As earlier stated, the decision issued on 13 June 2012. It was just over six pages in length. The Assessor described, in the background to the decision, the allegation of the insurer as one in which Mr Tarabay "made a false or misleading statement pursuant to s 117" of the Act. The Assessor recited, accurately, that Allianz made no claim of fraud and that the matter was to be determined in accordance with s 92(1)(b) of the Act.

42 The main bases of the claim of Allianz were described as being that Mr Tarabay falsified a PAYG payment summary in relation to Wales Truck Repairs and the inaccurate comment relating to Mr Tarabay's employment at Yennora Prestige Smash Repairs. There was also reference to the correspondence with Ultratune and the claim by Mr Tarabay that he was a full-time employee, in circumstances where there was evidence to suggest otherwise. It also noted the allegation as to the relationship between the principal of Ultratune and Mr Tarabay.

43 The Assessor summarised Allianz's case as one which sought an exemption because of the fraud, already described, and the false information, already described, and the proposition that "the only way to properly test the evidence ... is in court proceedings with evidence given under oath and the access to subpoenas."

44 The Assessor referred to the concern expressed by her "about the lack of detailed reply to the application" and referred to her request for a further reply from Mr Tarabay in relation to the allegations of Allianz. A reply to that invitation was to the effect that Mr Tarabay lived in Melbourne and his father had passed away and that Mr Tarabay could add nothing further to the original submissions.

45 The decision of the Assessor also referred to further correspondence dated 29 May 2012, which reiterated that the application fell within s 92(1)(b) of the Act and also relied on paragraph 14.16.11 of the Guidelines requiring consideration be given to "whether the insurer makes an allegation that a person has made a false or misleading statement in a material particular in relation to the injuries ...".

46 The Assessor also referred to the submission on behalf of Mr Tarabay that he did not know how the PAYG payment summary came into existence, apart from his knowledge as to the fact that it was forwarded from Wales Truck Repairs.

47 In dealing with the submissions of the parties on the issue, the Assessor recited the terms of clause 14.11 of the Guidelines, clause 14.16.11 of the Guidelines, noted the allegation of fraud and the application of s 92(1)(a) of the Act. The Assessor described her understanding of the submission as Allianz mainly relying upon the fact "that the PAYG payment summary for the year ending 30 June 2006 is either false or misleading and potentially a fraudulent document".

48 After acknowledging the submission of Allianz that Mr Tarabay had not "provided a reasonable explanation as to the serious inconsistencies", the Assessor stated that Mr Tarabay had "told me that he does not know how the second PAYG for the year ending June 2006 has come into existence and I accept that explanation in the absence of any evidence from the insure (sic) to the contrary".

49 The Assessor went on to suggest that the inconsistencies in the stated periods of employment were "issues that can easily be resolved at cross-examination of" Mr Tarabay and that such inconsistencies were "a very common occurrence" in the experience of the Assessor.

50 Likewise, the Assessor took the view that the income issues could be explored with Mr Tarabay at the assessment conference because, in the experience of the Assessor, "Claimants provide their accountants with all documents in their possession and the accountant provides the report. This appears to be what happened here, but I appreciate that the Insurer has pointed to some inconsistencies in those documents".

51 The Assessor then concluded in the following manner:

"37. Again, I have indicated to the Insurer representative that I will allow sufficient time for the Insurer's counsel to cross-examine the Claimant at the assessment conference to sort out any inconsistencies that still arise.

38. Generally when an application of this nature is made by either party, the responding party normally prepares a detailed reply in relation to each allegation. This has not happened in this case for a number of reasons mainly that the Claimant lives in Melbourne and his solicitor is in Sydney but more importantly he had arranged to come to Sydney to respond to the allegations and his father died. The Claimant therefore was in no position to provide the relevant answers. He has told his solicitor by telephone answers to some of the allegations which I have referred to earlier in this decision.

39. Therefore having looked at all of the issues and the replies thereto I am not satisfied that the Claimant or any other person has made a statement knowing that it is false and misleading in a material particular in relation to all of the headings pursuant to s 117 of the Act."

Consideration

52 As has already been stated, the summons seeks judicial review of the Assessor's decision refusing to find that the assessment is "not suitable for assessment" before CARS. At all times, the Court must bear in mind the distinction between a merit review and judicial review.

53 As the High Court said in Attorney General (NSW) v Quin [1990] HCA 21; (1990) 170 CLR 1 at 35-36 (per Brennan J) there is a fundamental distinction between correcting administrative injustice or error by a review of the merits of administrative action and adjudicating the extent of power and legality of the exercise of administrative functions:

"The duty and jurisdiction of the courts to review administrative action do not go beyond the declaration and enforcing of the law which determines the limits and governs the exercise of the repository's power. If, in so doing, the court avoids administrative injustice or error, so be it; but the court has no jurisdiction simply to cure administrative injustice or error. The merits of administrative action, to the extent that they can be distinguished from legality, are for the repository of the relevant power and, subject to legal control, for the repository alone.

The consequence is that the scope of judicial review must be defined not in terms of the protection of individual interests but in terms of the extent of power and the legality of its exercise. In Australia, the modern development and expansion of the law of judicial review of administrative action have been achieved by an increasingly sophisticated exposition of implied limitations on the extent or the exercise of statutory power, but those limitations are not calculated to secure judicial scrutiny of the merits of a particular case.

There is one limitation, 'Wednesbury unreasonableness' (the nomenclature comes from Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223), which may appear to open the gate to judicial review of the merits of a decision or action taken within power. Properly applied, Wednesbury unreasonableness leaves the merits of a decision or action unaffected unless the decision or action is such as to amount to an abuse of power: Nottinghamshire County Council v Secretary of State for the Environment [1986] A.C. 240 at 249. Acting on the implied intention of the legislature that a power be exercised reasonably, the court holds invalid a purported exercise of the power which is so unreasonable that no reasonable repository of the power could have taken the impugned decision or action. The limitation is extremely confined."

54 In Zurich Australian Insurance Ltd v MAA and Anor [2006] NSWSC 845 Hoeben J (as his Honour then was) referred to the task of an assessor in determining exemptions from assessment and said:

"[53] Against that background the scheme of the Act in relation to exemptions from assessment seems to be tolerably clear. Most claims will be assessed in accordance with Part 4.4 of the Act. There will be some claims which are exempt from assessment, but they will be in the minority and be the exception. Lest such exemptions be granted too freely (and thereby defeat the objects and purpose of the Act) strict requirements are imposed before a claim is exempt from assessment. In the case of an exercise of a discretion by an assessor, that requires the approval of the PCA before a certificate of exemption can issue. It follows that if a party to a claim wished to challenge a certificate of exemption, or a determination that a matter was not suitable for assessment under Part 4.4, it could do so for failure to follow the procedure set in place for the granting of such exemptions from assessment. What is less clear (as has arisen here) is what can be done by a party which is aggrieved because either a certificate of exemption from assessment has not been granted or a determination as to non suitability has not been made.

[54] The scope for intervention by this Court with regard to administrative decision making is limited. For Zurich to be successful in establishing jurisdictional error it has to bring itself within the principles in Craig v South Australia (1995) 184 CLR 163 at 179:

'If ... an administrative tribunal falls into an error of law which causes it to identify a wrong issue, to ask itself a wrong question, to ignore relevant material, to rely on irrelevant material or, at least in some circumstances, to make an erroneous finding or to reach a mistaken conclusion, and a tribunal's exercise or purported exercise of power is thereby affected, it exceeds its authority or powers. Such an error of law is jurisdictional error which will invalidate any order or decision of the tribunal which reflects it.'"

55 This attitude is, with respect to Hoeben JA, adopted. It had been earlier adopted by Sully J in Allianz Australia Insurance Limited v Motor Accidents Authority of NSW [2006] NSWSC 1096 and by me in Graham Kelly v Motor Accidents Authority of New South Wales [2006] NSWSC 1444.

56 I accept the opinion expressed by the Assessor that often issues associated with inconsistencies in periods of employment are resolved in a CARS assessment as are inconsistencies in documents and statements. Often they are resolved in the proceedings by examination by the insurance company that is permitted by the assessor. This however is slightly different.

57 The allegation by Allianz is an allegation of fraud in relation to the reliance upon a document that is said to be a forgery (if not two such documents). The Assessor has no power to subpoena or require the attendance of any person. The Assessor has no power to require an answer to any question. The most that the Assessor is able to do, in dealing with an issue of that kind, is take into account a failure to answer a question in determining an assessment.

58 There is a significant difference between inconsistent evidence of earnings and evidence of potential forgery. The only conclusive means of determining the forgery, and its source, is by compelling production, compelling answers under oath, and cross-examination of Mr Tarabay and third parties. That course is impossible in an assessment.

59 Section 92(1)(a) of the Act, read with Guideline Clause 8.11.6, requires an exemption to issue when there is an allegation of fraud relating to the occurrence or circumstances of the accident. Here, the allegation of fraud relates to documents supporting pre-accident earnings. These are extremely serious allegations of criminal conduct under the general law and the Act, which inform the exercise of the power under s 92(1)(b) of the Act.

60 Nevertheless, for the Court to involve itself in a determination as to whether, on the merits, an assessor is capable of dealing with those allegations, is not, on its face, judicial review. There is no suggestion or allegation of Wednesbury unreasonableness. There is no allegation that the failure to exempt is unreasonable in the sense described by Brennan J in Quin.

61 It would seem to me, on the material before the Court, that it would be difficult to come to the conclusion reached by the Assessor. Nevertheless, the Assessor has come to that conclusion, at least implicitly, and the Court would be involving itself in dealing with the merits of the claim were it to review that exercise of discretion.

62 The foregoing view does not conclude the matter against Allianz. There is a far more fundamental issue raised by the plaintiff. The "issue" that was before the Assessor was whether an exemption should be granted. The question that has been answered is whether Allianz has proved fraud. That is not the question that was before the Assessor.

63 As recited above, the Assessor has come to a conclusion (without evidence directly on the issue or even indirectly on the issue) as to the veracity of the explanation of Mr Tarabay, relayed by his solicitor, that Mr Tarabay does not know how the second PAYG payment summary has come into existence. The Assessor expressly states that she accepts that explanation. The Assessor accepts that "in the absence of any evidence from the Insurer to the contrary".

64 Yet, it is not for Allianz to explain how there are two PAYG records. Allianz has disclosed far more than would be necessary in order to show a prima facie need to explain inconsistent documents. Those documents have not been explained. Nevertheless, in the absence of proof from Allianz, the Assessor has accepted the explanation relayed to her by the solicitor for Mr Tarabay.

65 Even more fundamentally, the Assessor has come to a conclusion that she was "not satisfied that the Claimant ... has made a statement knowing that it is false". That was not an issue before the Assessor. Far more fundamentally, it is not an issue which could be decided before a full hearing on the question of the "fraud".

66 The only proceeding heard by the Assessor was an interlocutory proceeding in which the task of Allianz was not to prove the fraud alleged but to satisfy the Assessor, on the basis of an allegation, reasonably put, of fraud so that the matter was not one that should be heard in a CARS assessment.

67 The Assessor asked herself the wrong question and answered it. In doing so she has reached a concluded view as to the substance of the matter alleged, without having heard the parties in full on the issue. In so doing, the Assessor has issued a decision vitiated by jurisdictional error and error of law on the face of the record: Craig v State of South Australia [1995] HCA 58; (1995) 184 CLR 163 at 179; Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323 at [82].

68 The only other matter that requires attention is the submission that the Assessor was biased in favour of the claimant. The submission that the Assessor gave Mr Tarabay "more than the benefit of the doubt" is not inaccurate. But in order for bias to be shown from the conclusion of a court or tribunal, more must be shown. I will assume that the allegation of bias is a claim of reasonable apprehension of bias, rather than actual bias, and in so doing take a more generous view of that which is put against the Assessor.

69 As has recently been reiterated, a claim of apprehended bias will "strike at the validity and acceptability of the trial and its outcome", if it were successful: Concrete Pty Ltd v Parramatta Design & Developments Pty Ltd [2006] HCA 55; (2006) 229 CLR 577 at [117] (per Kirby and Crennan JJ), cited in Rouvinetis v Knoll [2013] NSWCA 24 at [11] (per Basten JA).

70 The test for apprehended bias is well known and has been expressed many times. The test is objective. The general principle is that a judge should not hear a case if, in all the circumstances, the parties or the public might entertain a reasonable apprehension that the judge might not bring an impartial and unprejudiced mind to the resolution of the questions involved in it: Livesey v New South Wales Bar Association [1983] HCA 17; (1983) 151 CLR 288 at 293-294; R v Watson; Ex parte Armstrong [1976] HCA 39; (1976) 136 CLR 248 at 258-263; Rouvinetis at [24] (and the cases cited therein).

71 The claim that a judge is biased or that there is an apprehension of bias admits of the possibility of human frailty and requires the identification of that which it is said might lead a judge to decide a case other than on its legal and factual merits: Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337 at 344. There must be, as the joint judgment in Ebner explained, a logical connection between the matter and the feared deviation from the course of deciding the case on the merits: Ebner at 345, [8] (per Gleeson CJ, McHugh, Gummow and Hayne JJ).

72 In essence, the submission of Allianz on this issue is that the findings of the Assessor are so manifestly in favour of Mr Tarabay, without the necessary support for those findings, that there must have been bias in order to have arrived at the conclusions. It is insufficient, in order to show bias, that a court or tribunal has decided a matter unfavourably (or even unreasonably) on the basis of the material before that court or tribunal. However wrong a conclusion may be, the conclusion, without more, will not disclose the necessary elements for an application for bias to succeed. I reject this ground of review.

73 The ground of review does, nevertheless, give rise to the appropriate nature of orders that should be made. Given the analysis of the decision above, I have come to the conclusion that the Assessor has reached a concluded view on matters that are against the interests of Allianz, in circumstances where the matter has not been fully argued. In those circumstances, and given that orders are otherwise to be made the effect of which would be to remit the matter to the Authority, an order shall also be included that it be listed before a different Assessor.

74 As stated above, the Assessor has asked herself the wrong question and taken into account irrelevant material in determining whether fraud was proved instead of whether, given the nature of the allegations and their reasonableness, the matter ought be granted a certificate of exemption. The wrong issue was addressed and irrelevant considerations were considered in addressing it.

75 The Court makes the following orders:

(1) An order in the nature of certiorari quashing the decision of the Motor Accidents Authority of New South Wales made on 13 June 2012 purportedly pursuant to s 92(1)(b) of the Motor Accidents Compensation Act 1999 to refuse to issue a certificate of exemption in relation to the claim by Joey Tarabay exempting the claim from assessment under Part 4.4 of the aforesaid Act;

(2) An order in the nature of prohibition preventing the Motor Accidents Authority of New South Wales and Joey Tarabay, their officers, servants or agents from acting on or taking any further step in reliance on the decision of 13 June 2012;

(3) An order in the nature of mandamus requiring the Motor Accidents Authority of New South Wales to deal with the exemption application of Allianz Australia Insurance Limited in relation to the motor accidents claim of Joey Tarabay in accordance with law;

(4) An order in the nature of prohibition preventing the second defendant from further dealing with the claim by Joey Tarabay for compensation under the Motor Accidents Compensation Act 1999;

(5) The first defendant shall pay the plaintiff's costs of and incidental to these proceedings, as agreed or assessed;

(6) Pursuant to s 6 of the Suitors' Fund Act 1951, the first defendant is granted an indemnity certificate in relation to the costs with respect to these proceedings.

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Decision last updated: 01 March 2013