Supreme Court New South Wales

• Medium Neutral Citation: Mitrovic v Motor Accidents Authority of New South Wales [2012] NSWSC 1231
• Hearing dates: 8 August 2012
• Decision date: 15 October 2012
• Before: Harrison AsJ

Decision

The Court declares that:

(1) The decision of the Proper Officer in matter number 2012/04/0151 issued on 17 February 2012 is vitiated by error of law.

The Court makes an order

(2) In the nature of certiorari removing into the Court the decision of the Proper Officer issued on 17 February 2012 in matter number 2012/04/0151 and quashing that decision.

(3) That matter number 2012/04/0151 be remitted to the Motor Accidents Authority of New South Wales to be determined in accordance with law.

(4) The first defendant is to pay the plaintiff's costs as agreed or assessed.

• Catchwords: ADMINISTRATIVE LAW - judicial review - jurisdictional error - plaintiff challenges the decision by a Proper Officer pursuant to s 62 of the Motor Accidents Compensation Act 1999 - declaration that decision vitiated by error of law and matter remitted
• Legislation Cited: Motor Accidents Compensation Act 1999; Supreme Court Act 1970
• Cases Cited: AAMI Ltd v Ali [2012] NSWSC 969; Alavanja v NRMA Insurance Ltd [2010] NSWSC 1182; Checchia v Insurance Australia Ltd trading as NRMA Insurance [2009] NSWSC 1005; Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd HYPERLINK "http://www.austlii.edu.au/au/cases/cth/FCA/1994/1074.html"[1994] FCA 1074; (1994) 49 FCR 576; Craig v South Australia (1995) 184 CLR 163; Devic v NRMA Insurance Ltd [2011] NSWSC 1099; Ex parte Hebburn Ltd; Re Kearsley Shire Council (1947) 47 SR (NSW) 416; Galluzzo T/As Riverwood Chemworld Chemist v Dianne Little (No 2) [2012] NSWSC 324; Insurance Australia Limited Ltd trading as NRMA Insurance v Hutton-Potts [2010] NSWSC 1446; (2010) 57 MVR 194; Kirk v Industrial Relations Commission of NSW [2010] HCA 1; (2010) 239 CLR 531; Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24; Minister for Immigration v SZGUR [2011] HCA 1; (2011) 241 CLR 594; Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; (2010) 266 ALR 367; Minister for Immigration & Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259; Minister for Immigration and Multicultural Affairs, Re; Ex parte Miah [2001] HCA 22; (2001) 206 CLR 57; Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323; NRMA v Falco [2012] NSWSC 54; (2012) 60 MVR 175
• Texts Cited: American Medical Association's Guides to the Evaluation of Permanent Impairment, Fourth Edition, 1995; MAA Guidelines for the Assessment of the Degree of Permanent Impairment, 1 October 2007; MAA Medical Assessment Guidelines, 1 October 2008
• Category: Principal judgment
• Parties: Jovanka Mitrovic bht Svetozar Mitrovic (Plaintiff); Julie Venuto (First Defendant); Motor Accidents Authority of New South Wales (Second Defendant)
• Representation: M A Robinson SC with I D Cullen (Plaintiff); C Jackson (First Defendant); Paul A Curtis & Co (Plaintiff); Hunt & Hunt (First Defendant); Crown Solicitor - Submitting Appearance (Second Defendant)
• File Number(s): 2012/107645

Judgment

1 HER HONOUR: By amended summons filed 8 August 2012, the plaintiff relevantly seeks, firstly, an order in the nature of certiorari or, alternatively, a declaration setting aside or declaring invalid the decision of the Proper Officer of the second defendant (within the meaning of that expression in s 62(1B) of the Motor Accidents Compensation Act 1999 (the MAC Act) namely, the determination dated 17 February 2012 on the application of the Plaintiff to refuse to refer the first defendant for a further medical assessment made purportedly pursuant to s 62 of the Act ("the decision"); and secondly, an order in the nature of mandamus remitting the plaintiff's s 62 application to the second defendant for reallocation of the matter to a different Proper Officer for determination of the matter according to law.

2 The plaintiff is Jovanka Mitrovic by her tutor Svetozar Mitrovic. The first defendant is Julie Venuto. The second defendant is the Motor Accidents Authority of New South Wales (MAA). The second defendant has filed a submitting appearance and I will therefore refer to the first defendant simply as "the defendant" in these reasons. The plaintiff relies on the affidavits of her solicitor Paul Curtis sworn 8 May 2012 and 6 August 2012.

Jurisdiction of this Court

3 These proceedings invoke the Supreme Court's supervisory jurisdiction derived pursuant to s 69 of the Supreme Court Act 1970 which provides for the making of orders "in the nature of" prerogative writs, such as the former writ of certiorari. The Court's supervisory jurisdiction is constitutionally recognised: see Kirk v Industrial Relations Commission of NSW [2010] HCA 1; (2010) 239 CLR 531 at 566.

4 On 13 June 2006 the plaintiff was injured in a motor vehicle accident that occurred at a zebra crossing. The first defendant was the driver of the car that collided with the plaintiff. Fault has been admitted.

5 The plaintiff is taking part in a personal injury medical dispute assessment process being undertaken by the Medical Assessment Service (MAS) of the MAA pursuant to Part 3.4 of the MAC Act.

6 There is no provision in the MAC Act for an appeal of any kind in respect of the challenged decision. The Court is therefore asked in judicial review proceedings to exercise its supervisory jurisdiction and to rule on the legality of the Proper Officer's decision (and not as to the merits of the plaintiff's claims below). The errors alleged by the plaintiff concern jurisdictional errors, errors of law on the face of the record and constructive failures of the decision maker to perform her duty under the MAC Act.

7 It is common ground that if the decision contains an error going to jurisdiction, or an error of law on the face of the record, the Court has power to quash the decision. However, the defendant says that the reasons of the Proper Officer (plaintiff's tender bundle ("TB") at 148) do not disclose error.

Background

8 A claim was made to the MAA for a medical assessment of injury by the MAA's medical assessors. This was a "medical dispute" within the meaning of s 57 and s 58 of the MAC Act. This dispute should ordinarily be resolved before the "claims assessment" stage occurs under the MAC Act or before District Court motor accident personal injury proceedings may be commenced. A medical assessment pursuant to Part 3.4 of the MAC Act must first be completed so that the claimant's entitlement to non-economic loss may be determined.

9 The MAA administers the entire compulsory third party insurance and compensation scheme under the MAC Act. The actual decision-maker here is a "Proper Officer" of the MAA designated as such pursuant to s 62(1B) of the MAC Act. Proper Officers are authorised under the MAC Act to make decisions concerning whether a medical assessment should be referred to a review panel of medical assessors pursuant to s 63 of the MAC Act or whether a matter should be referred for a further medical assessment pursuant to s 62 of the MAC Act. There have been three medical assessments made and one application for a further decision. Only the s 62 decision on the plaintiff's application for further assessment is under review in these proceedings.

The MAC Act Scheme and the Proper Officer

10 An overview of the statutory compensation scheme under the MAC Act is described in Checchia v Insurance Australia Ltd trading as NRMA Insurance [2009] NSWSC 1005 (per Rothman J) in the following terms (at [7] to [11]):

"7 The scheme established by the Act has been the subject of significant authority, mostly relating to the process of assessment.

8 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. There exists a right of appeal to a Review Panel (which also consists of medical assessors).

9 The insurer is obliged by the Act to endeavour to resolve the claim, by settlement or otherwise, justly and expeditiously. It is, in that context, required to give written notice of its attitude to liability no later than three months from the making of the claim. It is also an insurer's duty to make a reasonable offer of settlement (either a money amount for damages or a method of calculating same) within the later of one month from the stabilisation of the injury or two months from the provision of particulars by the claimant. It is required to cover hospital, medical and other expenses from the time of admitting liability (or having it determined) and also to take reasonable steps for the medical rehabilitation of the claimant.

10 On the other hand, the claimant is required under the Act to cooperate fully with the insurer (and insured) as to the claim, by providing enough information to satisfy the insurer as to the validity of the claim and in order to facilitate an early offer of settlement. Further, a claimant is required to answer any reasonable request for particulars and to provide copies of documents.

11 Generally, although some claims are the subject of court proceedings, Claims Assessors will assess claims in accordance with guidelines that have been promulgated. It is unnecessary, for present purposes, to discuss the details of the foregoing. It is sufficient to note the general scheme and the imposition of obligations on claimants and insurers. Further, it is a criminal offence (and often a breach of the licence conditions) for an insurer to contravene an obligation imposed upon it under the Act."

11 The scheme of the MAC Act is also described in great detail in Insurance Australia Limited Ltd trading as NRMA Insurance v Hutton-Potts & Ors [2010] NSWSC 1446; (2010) 57 MVR 194 at [13] to [28] (per Schmidt J).

12 It is necessary to briefly refer to the three medical assessments that were made. The first assessment was by MAS assessor Wong, who assessed a 6 per cent whole person impairment in respect of neck, left arm and left knee injuries. This assessment is not relevant to this review. It is only the assessments relating to the plaintiff's brain injury and psychological injuries that are relevant here. The former was assessed by MAS assessor McCarthy on 22 January 2010 (TB 91). The latter were assessed by MAS assessor Prior on 12 April 2010 (TB 102).

Assessor McCarthy

13 On 22 January 2010 MAS assessor McCarthy considered the plaintiff's alleged brain injury. McCarthy found no head injury, concussion, cognitive impairment, or post-traumatic amnesia related to the accident. Hence, McCarthy determined that no assessment of permanent impairment was required.

14 Assessor McCarthy based her decision upon contemporaneous medical records relating to the accident which the assessor said were inconsistent with a documentable assessable traumatic brain injury as required under the MAA Permanent Impairment Guidelines effective 1 October 2007 (TB 99-100).

Assessor Prior

15 On 12 April 2010, MAS assessor Prior considered the claim of Post Traumatic Stress Disorder (PTSD) (TB102). He stated (TB 115):

"She is currently seeing a treating psychiatrist, Dr N Sokolovic. Dr Sokolovic has the advantage of speaking her language and has seen her in the context of home visits on four to six occasions in total. It would be very illuminating to obtain his diagnostic impressions and any notes or report that he had authored concerning her condition."

16 He found that she had no psychiatric disorder related to the motor accident, therefore, there was no assessable psychological impairment (TB 116). It is the determination of the Proper Officer made under s 62 that is the subject of this review.

The application for further medical assessment

17 The plaintiff lodged an application for further medical assessment pursuant to s 62 of the MAC Act (TB1).

18 Section 62 provides:

"62 Referral of matter for further medical assessment

(1) A matter referred for assessment under this Part may be referred again on one or more further occasions in accordance with this Part:

(a) by any party to the medical dispute, but only on the grounds of the deterioration of the injury or additional relevant information about the injury, or

(b) by a court or claims assessor.

(1A) A matter may not be referred again for assessment by a party to the medical dispute on the grounds of deterioration of the injury or additional relevant information about the injury unless the deterioration or additional information is such as to be capable of having a material effect on the outcome of the previous assessment."(my emphasis added)

19 In NRMA v Falco [2012] NSWSC 54; (2012) 60 MVR 175 Hislop J said, regarding s 62 applications, at [17] to [21]:

"[17] Section 62 was amended to its present form in October 2008. Prior to its amendment in October 2008 s 62 comprised only ss 1 and 2. The amendment added sub-sections 1A and 1B.

[18] Prior to the amendment there was no express requirement that the Proper Officer determine whether the deterioration or additional information was capable of having a material effect on the outcome of the previous assessment.

[19] Section 65(1) of the Act provides:

'(1) Medical assessments under this Part are subject to relevant provisions of MAA Medical Guidelines relating to the procedures for the referral of disputes for assessment or review of assessments and the procedure for assessment.'

[20] The MAA Medical Guidelines provide:

'DIVISION 4 - Further assessment and review applications.

Chapter 14 - Application by a party for further medical assessment (section 62(1)(a))

Proper Officer determination.

14.3 The Allocation Review of an application for further assessment is to be conducted in accordance with Chapter 9.

14.4 When conducting an Allocation review of an application for further assessment pursuant to Chapter 9, the Proper Officer is to determine whether the application is suitable for referral for further assessment.

14.5 When determining whether a matter should be referred for further assessment under section 62(1)(a) whilst conducting an Allocation Review, the Proper Officer shall have regard to:

14.5.1 the application and any reply;

14.5.2 any other applications and replies and/or MAS certificates on this medical dispute or any other medical disputes at MAS in relation to the same claimant, not limited to the same matter, after the parties have been provided with a copy of these documents; and

14.5.3 the object of the Act and the objects of MAS.

14.6 For the purposes of section 62(1A) the word "material" includes that it is relevant and capable of altering the outcome of a dispute about:

14.6.1 reasonable and necessary treatment, from "not reasonable and necessary" to "reasonable and necessary" or vice versa;

14.6.2 related treatment, from "not related" to "related" or vice versa; or

14.6.3 permanent impairment, from "not greater than 10% whole person impairment" to "greater than 10% whole person impairment" or vice versa.

14.7 If the Proper Officer is not satisfied that the deterioration of the injury or the additional relevant information about the injury would have a material effect on the outcome of the application, the Proper Officer may dismiss the application.

14.8 The Proper Officer is to provide the parties with brief written reasons for the decision at the same time as, or as part of the notification to the parties, of the outcome of the Allocation Review as required by clause 9.2.

Assessment of further applications

14.9 When the Proper Officer decides to refer a matter for further assessment, the Proper Officer shall determine how the application is to proceed in accordance with the provisions of Chapter 9 (...)'

[21] Thus, the Proper Officer was required inter alia to

(a) determine whether the application was made on the grounds of deterioration of the injury or 'additional relevant information about the injury' (s 62(1)(a) - Glover-Chambers v Motor Accidents Authority (NSW) [2010] NSWSC 17 per McCallum J at [25];

(b) if so, determine whether the deterioration or additional relevant information was capable of having a material effect on the outcome of the assessment previously carried out - s 62(1A) - Rodger v De Gelder at [39];

(c) determine whether the application was suitable for referral for further assessment (Medical Guideline 14.4);

(d) provide the parties with brief written reasons for the decision (Medical Guideline 14.8);

(e) determine (when the Proper Officer decides to refer a matter for further assessment) how the application is to proceed in accordance with the provisions of Chapter 9 (Medical Guideline 14.9)."

20 The grounds for the plaintiff's s 62 application were firstly, that there was additional relevant information about the injury and secondly, there had been a further deterioration of the injury as documented in reports from a treating psychologist and a treating psychiatrist. Under the heading "Details about Permanent Impairment Dispute", the application stated (TB7):

"This Application is for further assessment in respect of the brain injury and psychological injuries only. Since these previous assessments the Claimant had undergone extensive treatment by Mr Miroslav Milenkovic (Clinical Psychologist) and Dr Milorad Sokolovic (Consultant Psychiatrist) and reports now obtained were not available to the previous MAS Assessors. Those reports reveal a deterioration in the Claimant's condition ('disheveled ... disinterestal (sic) and slow...produced almost no spontaneous speech... impaired orientation to person, time and place... her memory was profoundly defective...and is dependent on full-time care') she has now been diagnosed with traumatic dementia and psychosocial dysfunction attributable to the motor accident."

21 The plaintiff provided reports from three medical experts and two articles. These comprised of:

(i) Report of Mr Milenkovic (clinical psychologist, not treating) dated 11 July 2009; 23 November 2010; and 16 February 2011

(ii) Report of Dr Beran (neurologist) dated 2 June 2010;

(iii) Reports of Dr Sokolovic (consultant and forensic psychiatrist) dated 24 November 2010 and 6 March 2011;

(vi) Articles by Laurence Miller entitled "Atypical psychological responses to traumatic brain injury: PTSD and beyond"; "Not just malingering: Syndrome diagnosis in traumatic brain injury litigation".

22 It should be noted that the first report of Mr Milenkovic had been prepared nearly a year before the assessment of Assessor Prior. Mr Milenkovic concluded that he was of the opinion the "Mrs Mitrovic has symptoms concordant with a persistent post concussion syndrome" and that "there is a co-morbid set of problems that have features of an atypical form of post-traumatic stress disorder with prominent dissociation" (TB18). His two subsequent reports alleged deterioration (T22 and T25).

23 Dr Beran's opined that there was no "organic pathology within the neurological domain" (TB30). He recommended application of a specialist anti-depressant to attempt to address the plaintiff's dysfunctional symptoms.

24 Dr Sokolovic's opinion was that her condition had deteriorated (TB33) and that she was suffering from a "diffuse axonal injury" (TB48) leading to "dementia and psychosocial dysfunction" (TB49). His opinion is that the plaintiff's disability was caused by her involvement in the traffic accident, which has rendered her, to be dependent on full time care.

The defendant's response to the application for further assessment

25 The defendant pointed out that the plaintiff had included the report of Dr Beran in her application, which appeared to support the MAS assessor McCarthy's view that there was no traumatic brain injury (T29). It also noted that the two articles included in her application concerned atypical presentation of PTSD after traumatic brain injury (TB52 and TB64).

26 The defendant extracted that part of Medical Assessor McCarthy's certificate where he pointed to the lack of evidence to support the possibility of a brain injury as a result of the accident (TB89.14). The defendant concluded (TB89.8):

"...the claimant has failed to provide any additional relevant information and reasons as to how the alleged deterioration of her alleged injuries is capable, if the matter was to proceed to further assessment, of altering the outcome of Medical Assessor McCarthy's assessment."

27 The defendant then turned to the psychological injury assessed by Assessor Prior and concluded (at TB90);

"The claimant has failed to establish how the alleged deterioration of her psychological condition and the opinions of Mr Milenkovic and Dr Sokolovic are capable of altering the findings of Medical Assessor Prior in relation to the relationship between the claimant's alleged psychological condition and the subject motor vehicle accident."

The Decision Under Review: the Proper Officer's decision

28 At the commencement of her reasons dated 17 February 2012 for refusing to refer the application for further assessment, the Proper Officer stated:

"I am not satisfied that the deterioration of the injury and the additional relevant information about the injury is such as to be capable of having a material effect on the outcome of the previous assessment as required by section 62(1A) of the Motor Accidents Compensation Act 1999."

29 The Proper Officer asked herself the correct question. The Proper Officer then summarised the reasons of MAS assessors McCarthy and Prior, observing that both assessors found that none of the injuries referred to them for assessment were related to the motor accident.

30 The Proper Officer summarised the submissions of the plaintiff and the defendant. She reproduced part of the defendant's submissions:

"Hunt & Hunt for NRMA Insurance submit the claimant has failed to establish how any deterioration of the alleged head and psychological injuries or the additional information about her injuries is capable of having a material effect on the outcome of the previous assessments. They note that Assessor McCarthy certified that the alleged head injury, concussion, cognitive impairment and post-traumatic amnesia were not caused by the subject motor vehicle accident. They also note that Assessor Prior found that the claimant has a dementing illness with or without complication by a psychotic depression, not causally related to the subject accident."

31 The Proper Officer then stated (TB149):

"The submissions provided by the applicant do not address issues of causation nor do their submissions or the report they submit include any whole person impairment rating such to be capable of materially altering the outcome of the previous MAS assessments.

Given that in relation to both brain injury and psychological injuries, the previous MAS assessments determined that these injuries were not related to the motor vehicle accident, the claimant's solicitors have not adequately satisfied the requirement to be 'such as to be capable of having a material effect on the outcome of the previous assessment.' As such I have determined that the application shall not be referred for further assessment."

The plaintiff's grounds for judicial review

32 The plaintiff argued that the Proper Officer erred, firstly, in taking into account an irrelevant consideration, namely that the plaintiff needed to specify a "whole person impairment rating" (WPI rating); secondly, the plaintiff was denied procedural fairness; and thirdly, the Proper Officer did not properly apply the test in s 62 and failed to make her own assessment in accordance with that section. The plaintiff also took issue with the Proper Officer finding that the plaintiff's submission did not address the issue of causation.

(i) Was a WPI rating required?

33 The plaintiff argued that the Proper Officer erred in taking into account an irrelevant consideration, namely that the plaintiff's submissions and/or reports needed to specify a particular WPI rating in order for the application to be considered capable of materially altering the outcome of the previous MAS assessments (TB149).

34 As stated above, the Proper Officer said:

"The submissions provided by the applicant do not address issues of causation nor do their submissions or the reports they submit include any whole person impairment rating such to be capable of materially altering the outcome of the previous MAS assessments."

35 The plaintiff submits that this was the wrong approach because there is no requirement to produce a WPI rating under s 62. All that is required is that the Proper Officer have before her material sufficient for her to determine whether the deterioration or additional relevant information was capable of having a material effect on the outcome of the assessment previously carried out: s 62(1A); step 2 in NRMA v Falco at [21].

36 The plaintiff further submits that the Proper Officer was able to examine the application and apply it herself to:

(a) Chapter 4, "The Nervous System", of the American Medical Association's Guides to the Evaluation of Permanent Impairment, Fourth Edition, 1995 ("AMA 4") at pages 4/141 and 4/142 and Tables 1, 2 and 4; and

(b) Chapter 5 of the MAA's Guidelines for the Assessment of the Degree of Permanent Impairment dated 1 October 2007 ("Permanent Impairment Guidelines") at clause 5.11 and Tables 5.1 and 5.2.

37 The American Medical Association's Guide, as indicated by the plaintiff, included Tables 1, 2 and 4 which set out an analysis of the WPI which corresponded with certain descriptions of a patient. Table 1 was as follows:

Description	% Impairment of the whole person
Minimal disturbance in comprehension and production of language symbols of daily living	0 - 9
Moderate impairment in comprehension and production of language symbols of daily living	10 - 24
Inability to comprehend language symbols; production of unintelligible or inappropriate language for daily activities	25 - 39
Complete inability to communicate or comprehend language symbols	40 - 60

38 Chapter 5 of the MAA's Permanent Impairment Guidelines specifically places reliance on AMA 4. The chapter draws attention to the fact that AMA 4 "lists many impairments where the range for the associated whole person impairment is from 0 to 9% or 0 to 14%". Clause 5.11, referred to by the plaintiff reads:

"Assessment of disturbances of Mental Status and Integrative Functioning

The assessor should use Table 5.1 of these MAA Guidelines, the Clinical Dementia Rating (CDR) which combines cognitive skills and function."

39 Table 5.1 is the Clinical Dementia Rating and Table 5.2 sets out the criteria for rating impairment related to mental status. Table 5.2 cross-references the Clinical Dementia Rating of an individual with their WPI, as follows:

Class	Class 2	Class 3	Class 4
Impairment exists, but ability remains to perform satisfactorily activities of daily living CDR = 0.5	Impairment requires direction of some activities of daily living CDR = 1.0	Impairment requires assistance and supervision for most activities of daily living CDR = 2.0	Unable to care for self and be safe in any situation without supervision CDR = 3.0

40 The plaintiff concludes that a working knowledge of those tables, especially Table 5.2 of the Permanent Impairment Guidelines and its application to the additional material adduced in the s 62 application would indicate that the Proper Officer should have seen that the plaintiff was potentially in Class 4, namely 50 - 70 per cent WPI.

41 The defendant argues that the fact that there was no assessment of WPI rating was not determinative of the application, but merely a legitimate observation of the Proper Officer. The defendant says that the suggestion by the plaintiff that the Proper Officer should have leafed through AMA 4 and the Permanent Impairment Guidelines to reach her own medical assessment of the possible degree of permanent impairment is a distraction and far-fetched. While I accept that the Proper Officer is not a medical practitioner and nor is it her role to assess the degree of WPI, she should have a working knowledge of these tables.

42 Further, the defendant submits that given that the Medical Assessment Guidelines state that for further information to have a "material" effect for the purposes of s 62(1A) of the MAC Act, it is necessary that the information could lead to a change of WPI from lesser than to greater than 10%, or vice versa (cl 14.6.3), it is reasonable to observe that the plaintiff's experts have neglected to make such an assessment. This observation was not irrelevant, and the Proper Officer was entitled to refer to it. I do not agree that the Proper Officer did not rely on the failure to provide a WPI rating in reaching her decision to reject the plaintiff's application. No WPI was provided by the two earlier assessors because they found that causation was not made out.

43 In my view the Proper Officer relied on the failure to provide a WPI in reaching her conclusion and in doing so relied on an irrelevant consideration. Taking into account irrelevant considerations in making an administrative decision under statutory power is a long established jurisdictional error: see Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24 (per Mason J) and Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323 at [82]-[84] (per McHugh, Gummow and Hayne JJ).

(ii) Was procedural fairness afforded?

44 The plaintiff argues that the Proper Officer should have warned the defendant that the applicant was required to submit in its submissions or medical report a statement of a WPI rating such as to be capable of materially altering the outcome of the previous medical assessment.

45 The defendant referred to the general rule that a decision-maker is not obliged to disclose their reasoning process to a party: Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd [1994] FCA 1074; (1994) 49 FCR 576 at 591-592, cited with approval by the High Court in Minister for Immigration v SZGUR [2011] HCA 1; (2011) 241 CLR 594 at [9]. In SZGUR, French CJ and Kiefel J said:

"The decision-maker must ... 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. That is not to say that the Tribunal cannot or should not, in the exercise of its discretion, invite an applicant for review to make supplementary submissions in relation to apparent inconsistencies, contradictions or weaknesses in his or her case which have been identified by the Tribunal." (citation omitted)

46 The defendant further argues that because the Proper Officer did not impose an absolute requirement that evidence or submissions on WPI be provided, it could not be suggested that there was any breach of procedural fairness in failing to warn the plaintiff.

47 Given that I have determined that the requirement for the provision of a WPI was an irrelevant consideration, this ground of appeal falls away.

(iii) Whether causation was addressed in the application

48 The plaintiff submits that it was directly contended in her submissions there that the two organic brain disorders were caused by the subject motor vehicle accident. The Proper Officer was therefore mistaken when she stated that the "submissions provided by the applicant do not address issues of causation".

49 The defendant said that it was reasonable to observe that the plaintiff did "not address" issues of causation in her submissions, in that they gave no indication as to why the further opinions could alter the assessors' findings on causation. The defendant says that if the issue of causation is not addressed, then no matter how much the conditions deteriorate, and no matter what additional information is provided, the degree of WPI as a result of injuries caused by the accident would remain zero, or unassessable, and therefore, the deterioration or additional information would not be capable of affecting the result.

50 The defendant noted that in the "Injuries Information" section of her s 62 application, the plaintiff indicated that the aspect of the injury in dispute was the degree of impairment resulting from the head injury and "psyche" only, not causation (TB8). Therefore, the defendant argued that on one view, the further information upon which the plaintiff sought to rely, was advanced only to demonstrate deterioration, the first basis upon which further assessment could be sought under s 62(1)(a) of the MAC Act.

51 In my view the plaintiff adequately addressed the issue of causation. It was made clear to the Proper Officer that the basis of the plaintiff's application was that the two organic brain disorders were caused by the subject motor vehicle accident.

(iv) Whether the wrong approach was adopted

52 The Proper Officer concluded her reasons with the following paragraph:

"Given that in relation to both brain injury and psychological injuries the previous MAS assessments determined that these injuries were not related to the motor vehicle accident, the claimant's solicitors have not adequately satisfied the requirement to be 'such as to be capable of having a material effect on the outcome of the previous assessment.' As such I have determined that the application shall not be referred for further assessment."

53 Senior counsel for the plaintiff says that the Proper Officer misunderstood s 62 and failed to make her own assessment and determination in accordance with the section or that she has constructively failed to exercise her power or jurisdiction. According to the plaintiff, if s 62 had been construed and applied correctly, the fact that the subject injuries had been previously assessed would not be relevant or would not be a determinative factor against referral. It is contrary to the purpose of the section to prevent all future "further" assessments by reference to an earlier medical assessment (which might be wrong or out of date or which might become irrelevant).

54 The defendant argues that the paragraph quoted above was the operative paragraph and, properly understood, set out the Proper Officer's finding of fact that the plaintiff had not demonstrated that any further information or deterioration could affect the outcome of the decision. This finding was open to the Proper Officer and did not involve the application of a wrong test or inflexible rule or barrier.

55 The defendant says that the plaintiff mischaracterised the reasoning of the Proper Officer in the operative paragraph. The Proper Officer does not suggest that the mere fact of having had a previous assessment would preclude recourse to s 62(1A), nor is the Proper Officer applying an inflexible rule that where no causal link has been found in a previous assessment no further assessment may occur. Rather, in this paragraph, the Proper Officer accepts the argument of the defendant, which is that the information provided, to the extent that it is "further information", and the submissions provided, do not demonstrate how the two assessors' findings as to causation could be affected.

56 The defendant further says that, while the plaintiff may not agree with the finding of the Proper Officer, it was for the Proper Officer to make the factual finding. The defendant says that it was open on the evidence, from the way the application was presented and from the material provided in support, for the Proper Officer to make the finding that she did (see, for instance, Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611 at 648).

57 Applying the wrong legal test and failing to make required determinations under an Act each constitute errors of law sufficiently serious as to also constitute jurisdictional errors: Craig v South Australia (1995) 184 CLR 163 at 179; Kirk v Industrial Relations Commission of New South Wales [2010] HCA 1; (2010) 239 CLR 531 at [60] to [70]. Identifying a wrong issue or asking a wrong question in a way that affects the exercise of power is to make an error of law: Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 at [82].

58 The concept of jurisdictional error also includes "constructive failures to exercise jurisdiction" - see, for example, Jordan CJ in the leading case of Ex parte Hebburn Ltd; Re Kearsley Shire Council (1947) 47 SR (NSW) 416; (1947) 64 WN (NSW) 107. In that case Jordan CJ said at 420:

"I quite agree that the mere fact that a tribunal has made a mistake of law, even as to the proper construction of a statute, does not necessarily constitute a constructive failure to exercise jurisdiction ... But there are mistakes and mistakes; and if a mistake of law as to the proper construction of a statute investing a tribunal with jurisdiction leads it to misunderstand the nature of the jurisdiction which it is to exercise, and to apply a "wrong and inadmissible test": ... or to "misconceive its duty", or "not to apply itself to the question which the law prescribes": The King v War Pensions Entitlement Appeal Tribunal; or "to misunderstand the nature of the opinion which it is to form": The King v Connell (1944) 69 CLR 407 at 432, in giving a decision in exercise of its jurisdiction or authority, a decision so given will be regarded as given in a purported and not a real exercise of jurisdiction, leaving the jurisdiction in law constructively unexercised, and the tribunal liable to the issue of a prerogative writ of mandamus to hear and determine the matter according to law ..."

59 This passage has been adopted in this court (see for example Galluzzo T/As Riverwood Chemworld Chemist v Dianne Little (No 2) [2012] NSWSC 324 at [19]) and by the High Court. In Re Minister for Immigration and Multicultural Affairs; Ex parte Miah [2001] HCA 22; (2001) 206 CLR 57, Gaudron J said at [80]:

"The classic statement as to what constitutes constructive failure to exercise jurisdiction is that of Jordan CJ in Ex parte Hebburn Ltd; Re Kearsley Shire Council. That statement, which has been approved by this Court on numerous occasions identifies a constructive failure to exercise jurisdiction as occurring when a decision-maker 'misunderstand[s] the nature of the jurisdiction which [he or she] is to exercise, and ... appl[ies] "a wrong and inadmissible test"... or ... "misconceive[s his or her] duty," ... or "[fails] to apply [himself or herself] to the question which the law prescribes"... or "... misunderstand[s] the nature of the opinion which [he or she] is to form"'." (citations omitted)

60 In Yusuf, Gaudron J said at [41]:

"For the purposes of mandamus and prohibition, a tribunal is said to have failed to exercise its jurisdiction if it has wrongly denied the existence of its jurisdiction or mistakenly placed limits on its functions or powers. If the Tribunal wrongly holds it has no jurisdiction or is not authorised to make a particular decision, there is said to be 'an actual failure to exercise jurisdiction'. On the other hand, there is said to be a 'constructive failure to exercise jurisdiction' when a tribunal misunderstands the nature of its jurisdiction and, in consequence, applies a wrong test, misconceives its duty, fails to apply itself to the real question to be decided or misunderstands the nature of the opinion it is to form. A constructive failure to exercise jurisdiction may be disclosed by the Tribunal taking an irrelevant consideration into account. Equally, it may be disclosed by the failure to take a relevant matter into account." (emphasis added)

61 In relation to a constructive failure to exercise jurisdiction Beech-Jones J said recently in AAMI Ltd v Ali [2012] NSWSC 969 at [48]:

"There is considerable overlap between this form of error and a breach of natural justice or a constructive failure to exercise jurisdiction. This is so because aspects of those grounds can import a limited 'obligation' to consider at least some of the evidentiary material placed before a decision maker (Cervantes at [19]-[22], per Basten JA). Thus, in Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26; 77 ALJR 1088, Gummow and Callinan JJ stated (at [24]) that '[t]o fail to respond to a substantial, clearly articulated argument relying upon established facts was at least to fail to accord Mr Dranichnikov natural justice.' In Re Minister for Immigration and Multicultural Affairs; Ex parte Miah [2001] HCA 22 ; 206 CLR 57, Gaudron J at [81] stated that a failure in that case to address the substance of a person's claim for refugee status was 'a clear case of constructive failure to exercise jurisdiction'. Hence, and only by way of example, a failure to consider a critically relevant piece of evidence may have happened 'in a way that affects the exercise of the power' (Yusuf) because it may reveal that an applicant's case was not addressed or was misunderstood."

62 Furthermore a constructive failure to exercise jurisdiction might be disclosed by taking an irrelevant consideration into account or by a failure to take a relevant matter into account: Devic v NRMA Insurance Ltd [2011] NSWSC 1099. I have held above that the Proper Officer's consideration of the failure to provide a WPI for the plaintiff was an irrelevant consideration and that the Proper Officer erred in characterising the lack of submissions on causation.

63 I accept that reasons of administrative decision-makers are not to be considered with "an eye minutely and keenly attuned to error" but are to be read beneficially and as a whole (Minister for Immigration & Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259 at 272). I further accept that the reasons of the Proper Officer need only be brief (Medical Assessment Guidelines clause 14.8). However, In my view the Proper Officer failed to exercise her power in determining whether the additional information or the deterioration of the injury was such as to be capable of having a material effect on the outcome of the previous assessment.

64 As Assessor Prior noted in his written reasons, Dr Sokolovic speaks the plaintiff's language and saw the plaintiff numerous times on home visits. The Proper Officer failed to properly consider this, and the other further information in the form of the reports (and, to a lesser extent, the articles). The ultimate paragraph of the reasons indicates that the Proper Officer placed undue weight on the previous assessment, rather than considering the new material, as well as the Medical Assessment Guidelines, which the plaintiff's counsel points to, in particular Table 5.2 in relation to the assessment of psychological injury. It is my view that the Proper Officer's reasons reveal a constructive failure to exercise her jurisdiction pursuant to s 62 and so has fallen into jurisdictional error.

Reallocation to a different Proper Officer

65 The plaintiff has sought that the application be referred to the second defendant for reallocation to a different Proper Officer. No reasons are given as to why I should make this order. As there is no allegation of bias, this Court should not intervene and make such an order.

Conclusion

66 The Proper Officer's decision should be set aside. I make a declaration that the decision of the Proper Officer in matter number 2012/04/0151 issued on 17 February 2012 is vitiated by error of law and will make an order in the nature of certiorari removing into the Court the decision of the Medical Assessor issued on 17 February 2012 in matter number 2012/04/0151 and quashing that decision. I will further make an order that matter number 2012/04/0151 be remitted to the Motor Accidents Authority of New South Wales to be determined in accordance with law.

67 Costs are discretionary. Costs usually follow the event. The first defendant is to pay the plaintiff's costs as agreed or assessed.

The Court declares that:

(1) The decision of the Proper Officer in matter number 2012/04/0151 issued on 17 February 2012 is vitiated by error of law.

The Court makes an order

(2) In the nature of certiorari removing into the Court the decision of the Proper Officer issued on 17 February 2012 in matter number 2012/04/0151 and quashing that decision.

(3) That matter number 2012/04/0151 be remitted to the Motor Accidents Authority of New South Wales to be determined in accordance with law.

(4) The first defendant is to pay the plaintiff's costs as agreed or assessed.

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Decision last updated: 16 October 2012