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1 Download Request: Current Document: 1 Time Of Request: Thursday, September 26, :39:08 Send To: **ISA**UNI TECHNOLOGY SYD, AU **ISA**UNI TECHNOLOGY SYDNEY ATTN: MURIEL BAZIN UTS, SYDNEY Source: Unreported Judgments NSW

2 Page 1 1 of 1 DOCUMENT: Unreported Judgments NSW MILES v MOTOR ACCIDENT AUTHORITY (NSW) - BC Paragraphs Supreme Court of New South Wales Hoeben CJ at CL 2013/7440 4, 12 July 2013 Miles v Motor Accident Authority of NSW [2013] NSWSC 927 ADMINISTRATIVE LAW -- Motor Accidents Compensation Act Decision of Proper Officer to refer matter for further medical assessment -- Judicial review of exercise of power -- Statutory interpretation of s 62 Motor Accidents Compensation Act Meaning of "additional relevant information" -- Whether application for further medical assessment contained "additional relevant information" -- Whether principle of functus officio applies to decision of Proper Officer to refer matter for further medical assessment -- Whether Proper Officer failed to take into account a relevant consideration. (NSW) Motor Accidents Compensation Act 1999 (NSW) Supreme Court Act 1970 s 69 Alavanja v NRMA Insurance Ltd [2010] NSWSC 1182; Craig v South Australia [1995] HCA 58 ; 184 CLR 163; Firearm Distributors Pty Ltd v Carson [2000] QSC 159; Hot Holdings Pty Ltd v Creasy [1996] HCA 44 ; 185 CLR 149; Jayasinghe v Minister for Immigration and Ethnic Affairs [1997] 76 FCR 301; Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30 ; 206 CLR 323; Owen v Motor Accidents Authority (NSW) [2012] NSWSC 650 ; 61 MVR 245; Project Blue Sky Inc v ABA [1998] HCA 28 ; 194 CLR 355; Rodger v De Gelder [2011] NSWCA 97 ; 80 NSWLR 594; Sloane v Minister for Immigration Local Government and Ethnic Affairs [1992] 37 FCR 429 Professor E Campbell "Revocation and Variation of Administrative Decisions", 1996, 22 Monash University Law Review Hoeben CJ at CL. Nature of proceedings [1] The plaintiff, by a Further Amended Summons, seeks the following orders: 1. An order in the nature of certiorari or, alternatively, a declaration setting aside or declaring invalid or quashing the decision made by the proper officer of the first defendant, ("the proper officer's decision") on 3 December 2012, acceding to the third defendant's further request made pursuant to s 62(1A) of the Motor Accidents Compensation Act 1999 (NSW) (MAC Act) to refer the permanent impairment

3 Page 2 assessment of the plaintiff in Matter No 2012/04/3072 before the Medical Assessment Service (MAS) for further assessment. 2. An order in the nature of certiorari or, alternatively, a declaration setting aside or declaring invalid the decision of the medical assessor of the first defendant, Dr Tai-Tak Wan made on 30 January 2013 ("the medical assessor's decision") as it was made pursuant to an invalid decision of the proper officer. 3. An order in the nature of prohibition or, alternatively, an injunction preventing the defendants or any of their officers, servants or agents from acting on or taking any further step in reliance on the proper officer's decision or the medical assessor's decision. Factual background [2] The plaintiff was born in He left school in year 9 because his family "moved around all the time". He worked as a barber for one and a half years, a furniture removalist for six years and then as a truck driver. At the time of the motor vehicle accident, he was working as a truck driver for about 70 hours per week. Since the accident, he has tried various jobs but only for short periods and he has not been able to maintain regular employment. [3] The motor vehicle accident occurred on 23 February 2007 at about 4pm. The plaintiff was riding his motorcycle home from work and was wearing his helmet, a pair of gloves, a leather jacket and shorts. A car attempted to do a U-turn across the centre line in front of him. He braked, but collided with the car and was thrown over the car, probably onto both arms and both knees. He believed that he "blacked out" for about two minutes. His motorbike was written off. [4] He had pain in the right knee and right wrist. X-rays showed a fracture of the right patella. He thought he had a crush injury to the right wrist and an undisplaced fracture of the left wrist. The left wrist problem cleared up but his right wrist and knee symptoms did not. In 2008 he underwent an arthroscopy of the right knee. [5] The plaintiff said that about two months after the accident, he developed epilepsy which mainly occurred at night. He was not able to give many details regarding the seizures, but apparently they were generalised convulsions and lasted for a short duration. [6] When the plaintiff saw Dr Wan, the medical assessor appointed by the Motor Accident Authority (MAA), on 8 July 2010, he told him that he usually saw a neurologist, Dr Boyce, every three months. He said that he had last been seen by Dr Boyce three months before the assessment. He said that he was told that he had epilepsy related to the head injury sustained in the accident. He was taking Epilim and Dilantin. He had not had an epileptic seizure for the preceding seven months. [7] A report of Dr Boyce, dated 8 July 2009, stated: About a month after the accident he had a warning of a feeling of anxiety and sweating profusely and was seen to have a tonic clonic seizure and was vague for several days. Since then he has had about six seizures and he has seen a neurologist in Coffs Harbour. There is no family history of epilepsy and the man has previously had no seizures. He is a social drinker and a non-smoker. He was placed on an anti-convulsant called Epilim... as a sub-therapeutic dose. [8] Dr Wan reported that he could not find any report of an EEG study or video EEG studies. [9] As indicated, the plaintiff made a claim under the MAC Act and attended Dr Wan for medical assessment under the Act on 8 July Dr Wan issued a certificate on 16 July 2010 to the effect that the plaintiff had a permanent impairment, which in total "is greater than 10%". Under the MAC Act this entitled the plaintiff to pursue a claim for non-economic loss.

4 Page 3 [10] In his reasons for issuing such a certificate, Dr Wan said in relation to the plaintiff's epilepsy: On the other hand, he reported epilepsy seizures starting about 2 months after the subject MVA. From the history I got, it occurred only nocturnal, and has been seen by a neurologist who started him on anti-epileptic drugs and he has had no seizures for the last 7 months. He probably had an EEG done before (which according to Mr Miles probably was normal) but unfortunately there is no report of EEG or video EEG available. Late occurrence of epilepsy can occur in traumatic brain injury (although usually in more moderate or severe cases of traumatic brain injury). The seizures are only nocturnal and apparently only witnessed by Mr Miles' wife. Usually in such a late development of epilepsy, especially nocturnal, and associated with significant psychological symptoms, video EEG (sometime may require multiple video EEG) is needed to differentiate genuine seizure from psychogenic seizure. Unfortunately, as no EEG report was available and it appeared that no video EEG has ever been done, there is no objective evidence to support or refute the diagnosis of epilepsy. Under such a circumstance, I have no choice but to accept the diagnosis of the treating neurologist that there were epileptic seizures. Since the seizures occurred only after the subject MVA and there is no other causes to explain the seizures, I have to accept that the seizures are also causally related to the mild traumatic brain injury. Such an assessment is subject to change if there is new evidence regarding the diagnosis of epilepsy. No PTA (post traumatic amnesia) has ever been formally assessed, and from the history there is no definite evidence of PTA. [11] On 30 April 2012 the third defendant (the insurer) made an application pursuant to s 62 of the MAC Act for the matter to be referred again for medical assessment. That application, as required by the MAC Act, was made to a proper officer of the Authority. The application was accompanied by 154 documents. Included with those documents were a report of Dr Andre Loiselle, neurologist, of 4 March 2009 and a report of 12 April 2011 from Associate Professor Boyce. The reports referred to an EEG which was negative. The 154 documents were accompanied by an extensive summary which comprised in excess of 150 paragraphs. The documents were accompanied by submissions, dated 17 May [12] The application for a further medical assessment was opposed by the solicitors for the plaintiff in submissions lodged on 20 June [13] The proper officer (Ms Probert) rejected the third defendant's application for further medical assessment by letter dated 14 August She said: The Insurer's application argues that, the findings of an EEG, report not attached to the Insurer's application, constitutes new medical evidence however the previous findings of Assessor Tai Tak Wan were made on the assumption that the EEG was normal and the new documentation supports this assumption. Therefore, this new information would not alter the outcome of the previous assessment. The Insurer relies on the determination of Dr Loiselle dated 4 March He concluded that there was "no significant head injury" and therefore the causation of the epilepsy is unlikely to be the motor vehicle accident. Whilst this can be regarded as new additional information, it can be noted that there were a number of neurologist and brain injury specialists' opinions before Assessor Tai Tak Wan providing comment in relation to the causation of the head injury and epileptic seizures. This report could therefore be regarded as only a difference of opinion and not new information. It is noted throughout the Insurer's Review of Documentation that the Insurer is continuing to pursue further medical evidence and clarification from a number of the claimant's treating doctors and their own medico-legal doctors. Whilst the applicant relies on voluminous post-accident medical documentation produced under subpoena, it is noted that a significant number of the documents attached to the MAS 4A Application for Further Assessment were already before the previous MAS Assessor Tai Tak Wan. Other medical evidence including the report of Dr Loiselle dated 4 March 2009 and Dr John Cummine dated 14 June 2011 only provide a difference of opinion to that of the MAS Assessor and the specialist reports that were previously before the MAS Assessor and is not 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 The applicant's submissions fail to demonstrate how this additional medical information is capable of altering the outcome of the previous assessment as required by

5 Page 4 Section 62(1A) of the Motor Accidents Compensation Act I am not satisfied that the additional relevant information about the physical and/or psychological 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 I have therefore determined that the application shall not be referred for further assessment. [14] On 5 October 2012 the insurer made another application for further medical assessment, pursuant to s 62 of the MAC Act. Only three documents were attached to this application: the report of Professor Boyce of 12 April 2011, the report of Dr Loiselle of 4 March 2009 and the third defendant's submissions. It was common ground that the reports of Dr Loiselle and Professor Boyce were the same as those included in the documentation which formed part of the application for further medical assessment, dated 30 April 2012, and which the proper officer of the Authority had refused to refer for further medical assessment. [15] The report of Dr Loiselle of 4 March 2009 relevantly stated: Consultation Date: 23rd February 2009 Thank you for referring Casey accompanied by his wife. Casey has had 5 generalised tonic clonic seizures commencing in Although they relate the first to a motorbike accident there was no significant head injury (his helmet was chipped but there was no loss of consciousness or fracture), and the first seizure occurred one to 8 months later. The next seizure was November 2008, then he had 3 on February , the day after a knee arthroscopy with generalised anaesthetic. On each occasion the seizures occurred during sleep. On each occasion his wife wakes to noises, he is stiff, shaking, with tonic arm extension, bit his tongue once but no urinary incontinence. CT and EEG in 2007 are normal according to them. MRI 16th February 2009 is normal.... Impression: On history, Casey has idiopathic generalised epilepsy. Although the seizures all occurred from sleep, this is not expected in IGE, the description does not sound like nocturnal frontal lobe epilepsy, and it is therefore too early to imply that these will be purely nocturnal. Despite Casey's disagreement, it is highly unlikely to be related to the motorbike accident given that there was no head injury, there was a significant time delay between the accident and the onset of the seizures and the MRI shows no gliosis, and although stress could conceivably worsen seizure frequency it can't be the underlying cause of the epilepsy.... [16] The report of Professor Boyce of 12 April 2011, relevantly stated: My correspondence indicated that I first saw this man on 08/07/2009 at the referral of his general practitioner... Past Medical History: Mr Miles indicated that he was 35 years of age, he lived with a partner and, I understand a young daughter. He said that he was not working at the present time. He had not been working and had had no prior accidents. He was involved in a motorcycle accident in February In the motorcycle accident, the man said that he was knocked out for a short period of time, he had damage to his patella and there was a chip. He is not sure how long he was knocked out and there was some type of first aid person who assisted, but he was never taken to hospital. I am unaware of results of any investigations that were done at the time of the accident. However, about six weeks after the accident, he said that he would have episodes of profuse anxiety and sweating and then stiffen up. He would hear peculiar noises and then feel abnormal for several days. He had had about six of these episodes. I believe he had been referred to Coffs Harbour Health Campus and he may have seen Dr A Loiselle, neurologist. A possible diagnosis was made. I understand that an MRI scan and an electroencephalogram were performed but I am not sure of the diagnoses.

6 Page 5 I performed an electroencephalogram on which I regarded as normal. I made a comment that as the man had heard a number of peculiar noises, I could not exclude a diagnosis of epilepsy and suggested that, if anything, Epilim was a better medication that Dilantin for this type of problem.... From my point of view as a neurologist, I formed the view that he had been seen by a previous neurologist who had made a diagnosis of epilepsy. I could not exclude that as a diagnosis and continued him on the basis of treatment.... I have never seen any correspondence from Dr Loiselle or from Coffs Harbour Health Campus. I am not in a position to either confirm or deny the fact that he may or may not be epileptic. My general impression, however, is that his major problem is that of an adjustment type disorder. He may have a mild form of epilepsy and a diagnosis of this would be dependent on the stall of medication and a three hour type electroencephalogram. [17] This application for further medical assessment was supported by brief submissions which were quite different to those relied upon to support the application of 30 April These submissions answered the criticism of the proper officer in that they sought to demonstrate how the additional material was capable of altering the outcome of the previous medical assessment. The submissions referred specifically to the somewhat qualified opinion of the assessor, Dr Wan, set out at [10] hereof. The written submissions proceeded: 15 It is against those assumptions, that degree of uncertainty, and that desire for further information, that the insurer's application should be considered. 16 The reference to the claimant's treating specialist is a reference to the opinion of Associate Professor Boyce, as two reports of Associate Professor Boyce, dated 8 July 2009 and 16 July 2009, from which Assessor Wan quoted (at page 15 of his reasons), were the only treating neurologists' reports to which he had access. Associate Professor Boyce 17 Attached to this application (as it was to the previous application) is a report provided recently by the claimant from Associate Professor Boyce, which is dated 12 April 2011, and addressed to the claimant's solicitors. 18 This report clarifies Associate Professor Boyce's independent view, uninfluenced by any need for "comity" with a colleague. It clearly indicates that Associate Professor Boyce is not prepared or able to confirm a diagnosis of epilepsy. 19 One of the foundations of Assessor Wan's diagnosis of epilepsy was his deferral to the opinion of Associate Professor Boyce. (The submissions then quote from the report of Professor Boyce.) 22 The additional information is not "just another medical opinion" (of the type identified in Alavanja [2010] NSWSC 1182 and Garcia [2009] NSWSC 1056). 23 The additional relevant information is that the current treating specialist to whom Assessor Wan deferred in his diagnosis of epilepsy, and upon whose opinion the assessor relied, does not, in fact, confirm such a diagnosis, and is unable to express a view about whether or not the claimant suffers from epilepsy with any degree of confidence. 24 The insurer also asks that the proper officer reconsider the significance of the fact that the claimant had recorded a normal EEG. This information was not before Assessor Wan, and is contained in the report of Associate Professor Boyce, who performed an EEG on 14 September 2009 (page 1 of Associate Professor Boyce's report). 25 In determining the previous Application for Further Assessment, the Proper Officer, perhaps guided by the claimant's submissions, stated that Assessor Wan had assumed that any EEG was normal. 26 However, Assessor Wan in fact did not make such an assumption. Rather, he remarked upon the absence of any objective evidence "to support or refute" the diagnosis, and he said that his diagnosis "was subject to change if there is new evidence regarding the diagnosis of epilepsy".... Report of Dr Loiselle 29 The next document which provides additional information is the opinion of the claimant's earlier treating specialist, Dr Loiselle, dated 4 March Dr Loiselle seems to accept, on the basis of the history given, a diagnosis of idiopathic generalised epilepsy, but expressly finds that it is highly unlikely to be related to the motorbike accident given that there was no head injury, there was a significant time delay between the accident

7 Page 6 and the onset of the seizures and the MRI shows no gliosis This report is not just another forensic report procured by the party who seeks to rely upon it. It is well understood why, as a matter of policy, "additional information" should not be read to include any new report obtained by a party with differing reasoning on an issue about which there is already expert opinion. 31 Rather, its significance lies in the fact that the claimant's own specialist, with the responsibility for treating him, indeed, the first specialist to whom he was referred, considered it "highly unlikely" that there was a causal link between the accident and the epilepsy which he diagnosed.... [18] In a response dated 9 November 2002 the plaintiff opposed the application for further referral for medical assessment. He did so on the basis that the reports of Dr Loiselle and Professor Boyce had already been before the proper officer in the rejected application of 30 April 2012 and that it was an abuse of process to rely on them again. [19] By letter dated 3 December 2012 the proper officer (Ms Probert) agreed to refer the application for further medical assessment to Dr Wan. [20] She said: The new additional information provided in this current application for further assessment is: o The report of Dr Boyce dated 12 April The injured party was assessed by Assessor Wan on 16 July It was determined that there was a 22% permanent impairment and that 17% of that was for a closed head injury which has led to the onset of epilepsy. The applicant submits that the report of treating neurologist Dr Boyce is additional relevant information in that he confirms that an EEG study was performed and that the study was normal, it is submitted that if these findings were presented to Assessor Wan then he may be persuaded that the epilepsy was not causally related to the motor vehicle accident in which case the percentage of permanent impairment would not exceed the statutory threshold. The respondent submits that as the report of Dr Boyce was submitted with the previous application for further assessment, which was subsequently dismissed, that it cannot be considered additional relevant information. Upon consideration of the report of Dr Boyce and the accompanying submissions I am satisfied that it does constitute additional relevant information. It was not previously before Assessor Wan nor was there any definitive evidence before Assessor Wan that confirmed an EEG has been undertaken and that the EEG was normal. I note in the last paragraph on p 15 of Assessor Wan's certificate it is stated that "I could not find any report of EEG study or video EEG studies", paragraph 4 on page 22 states "he probably had an EEG done before (which according to Mr Miles probably was normal)." He then goes on to state, "Unfortunately as no EEG report was available and it appeared that no video EEG has ever been done, there is no objective evidence to support or refute the diagnosis of epilepsy." Dr Boyce's report dated 12 April 2012 is objective evidence that an EEG was performed and that it was normal. This information has not previously been considered. I am satisfied that 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 Whether it will or not is a medical determination and therefore this matter will now be referred for further assessment.... [21] The further medical assessment took place on 17 January Dr Wan issued a further certificate on 30 January The certificate on this occasion was to the effect that the injuries suffered in the motor vehicle accident did not give rise to permanent impairment which was greater than 10%. [22] In setting out his reasons, Dr Wan said:

8 Page 7 Therefore considering all the available evidence, I assess that the "seizures" might not be epileptic, or if they were epileptic, it was unlikely that they were due to post traumatic epilepsy. Even if it was PTE, there is no objective evidence that the current reported "seizures" were epileptic and even if they were epileptic, it is unlikely due to PTE, but more likely due to idiopathic epilepsy or other causes. Relevant legislation [23] Section 62 MAC Act 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. (1B) Referral of a matter under this section is to be by referral to the member of staff of the Authority who is designated by the Authority for the purpose (in this Part referred to as the proper officer of the Authority). (2) A certificate as to a matter referred again for assessment prevails over any previous certificate as to the matter to the extent of any inconsistency. [24] The following MAA Medical Assessment Guidelines promulgated pursuant to s 44(1)(d) of the MAC Act (which have been held to be delegated legislation) are relevant: Chapter Dismissal 10.1 The Proper Officer may at any stage dismiss an application for medical assessment in circumstances where they are satisfied that: Proper Officer Determination the application is frivolous, vexatious, misconceived or lacking in substance; the application is being used for an improper purpose or is otherwise an abuse of process; or 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: permanent impairment, from "not greater than 10% whole person impairment" to "greater than 10% whole person impairment" or vice-versa If the Proper Officer is not satisfied that the deterioration of the injury or the additional relevant information

9 Page 8 about the injury would have a material effect on the outcome of the application, the Proper Officer may dismiss the application 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. [25] The statutory scheme of the MAC Act was helpfully summarised by Beazley JA in Rodger v De Gelder [2011] NSWCA 97 ; 80 NSWLR 594: The statutory scheme 7 The MAC Act provides for a scheme of compulsory third-party insurance and payment of compensation relating to injuries sustained as a consequence of motor vehicle accidents. The objects of the Act include: to encourage early and appropriate treatment and rehabilitation: s 5(1)(a); to provide compensation for compensable injuries sustained in motor vehicle accidents and to encourage the early resolution of such claims: s 5(1)(b); and to keep third-party premiums affordable: s 5(1)(d). Section 5(2)(b) provides that the law relating to the assessment of damages in claims under the Act should be interpreted and applied in a way that acknowledges the clear legislative intention to restrict the level of non-economic loss compensation in cases of minor injuries. 8 The MAC Act, Ch 3 deals with motor accident injuries. Pursuant to s 44, the Authority may issue guidelines, known as the MAA Medical Guidelines, with respect to, inter alia, the assessment of the degree of permanent impairment of an injured person as a result of an injury caused by a motor accident: s 44(1)(c); and the procedures for the referral of disputes for assessment or review of assessments: s 44(1)(d). 9 Part 3.4 deals with the medical assessment of claims. Pursuant to s 59, the Authority is required to appoint medical assessors for the purpose of conducting medical assessments under the MAC Act. Section 60 provides that a medical dispute may be referred to the Authority for assessment by either party to the dispute or by a court or claims assessor and the Authority is to arrange for the dispute to be so referred. As this matter relates to a referral by a party, reference will only be made hereafter to such referrals. 10 A medical assessor to whom a medical dispute is referred is required to give a certificate as to the matters referred for assessment: s 61(1). Any such certificate is conclusive evidence as to the matters certified, relevantly, in any assessment by a claims assessor in respect of the claim concerned: s 61(2). There are exceptions to s 61(2) which are not presently relevant. 11 A matter referred for medical assessment under Pt 3.4 may be referred for assessment on one or more further occasions: s Section 63(1) provides that a party to a medical dispute may apply to the Proper Officer to refer a medical assessment undertaken by a single medical assessor to a review panel of medical assessors for review. The Proper Officer must refer the matter to a review panel of at least three medical assessors, but only if the Proper Officer is satisfied that there is reasonable cause to suspect that the medical assessment was incorrect in a material respect, having regard to the particulars set out in the application: s 63(3). The review panel may either confirm the certificate of assessment of the single medical assessor, or revoke that certificate and issue a new certificate: s 63(4). 13 Section 65 provides that medical assessments under Pt 3 are subject to relevant provisions of the Guidelines relating to the procedures for the referral of disputes for assessment or review of assessments and the procedure for assessment. 14 Part 4.4 deals with claims assessment and resolution. Pursuant to s 98, the Motor Accidents Claims Assessment and Resolution Service (CARS) has been established. CARS consists, relevantly, of claims assessors, whose function is to conduct the assessment of claims under Pt The Authority has issued Medical Assessment Guidelines under the MAC Act, s 44(1)(d). The Guidelines relevant to this matter were gazetted on 11 July 2008 at Chapter 14 of the Guidelines deals with applications for further medical assessment pursuant to s 62(1)(a). Submissions [26] The plaintiff made it clear that the only decision which he was challenging was that of the proper officer of 3 December 2012 to refer the matter to Dr Wan for further medical assessment. He submitted that if that decision were

10 Page 9 quashed, the medical assessor's decision of 30 January 2013 would also have to be set aside because there had been no proper referral for further medical assessment. [27] It was common ground that the decision of a proper officer to refer a matter for further medical assessment was one which was susceptible to judicial review, pursuant to s69 of the Supreme Court Act This was so because although the outcome of the further medical assessment determines the legal rights of the parties, it was the decision of the proper officer as to whether the further information is capable of having a material effect on the outcome of the previous assessment which sufficiently determines or is connected with that decision (Rodger v De Gelder at [70], [103], [104]). [28] The plaintiff's first submission was that the proper officer erred in accepting the reports of Dr Loiselle of 4 March 2009 and of Professor Boyce of 12 April 2011 as "additional relevant information" within the meaning of s 62(1)(a). The plaintiff submitted that the phrase "additional relevant information" did not include information already submitted to a proper officer in an earlier application for a further medical assessment. This was because those documents had already been the subject of a proper officer's consideration and determination and the documents no longer had the character of being "additional". [29] The plaintiff submitted that to hold otherwise would be to allow an insurer or a claimant to keep coming up with new material (medical reports and the like) and they might keep lodging new applications containing some or all of that very same material over and over again. In that regard, the plaintiff relied upon the observation of Davies J in Alavanja v NRMA Insurance Ltd [2010] NSWSC 1182 [43]: If that was so, there may never be an end to the assessment process. It would be inconsistent with the objects of the Act particularly the object set out in s 5(1)(b) of encouraging early resolution of compensation claims. [30] The plaintiff submitted that as a matter of proper statutory construction, and as a matter of law, the phrase "additional relevant material" in s 62 did not include material already submitted to a proper officer that is the subject, or has been the subject, of a determination by a proper officer. [31] The plaintiff's interpretation of the phrase "additional relevant information" as used in s 62 should be rejected. [32] The majority (McHugh, Gummow, Kirby and Hayne JJ) held in Project Blue Sky Inc v ABA [1998] HCA 28 ; 194 CLR 355 [78] that the ordinary grammatical meaning of a statutory provision will normally be the legal meaning as well. That is certainly the case in relation to s 62. [33] The chapeau to s 62 uses the word "assessment". This is clearly a reference to a medical assessment by a medical assessor. The phrase "referred again" there used, is a reference to a matter being referred again for medical assessment by a medical assessor. The chapeau makes it clear that there is no limit on the number of referrals for medical assessment which can take place. [34] It is true that the phrase "additional relevant information", as used in s 62(1)(a), could grammatically refer to information contained in an application for further medical assessment which had been rejected by a proper officer. Such a meaning, however, sits uneasily with the use of the same phrase in s 62(1A). The expression there used is "unless... the additional information is such as to be capable of having a material effect on the outcome of the previous assessment". Clearly the reference is to information which is additional to that which was before the medical assessor when the previous medical assessment took place. The comparison is between information which was before the medical assessor when the previous medical assessment took place and information which is additional to that which is of such a character that it is capable of changing the outcome of the previous medical assessment if it were placed

11 Page 10 before the medical assessor. [35] That was the approach followed by the Court of Appeal (Beazley, McColl and Macfarlan JJA) in Rodger v De Gelder. Their Honours in that case interpreted cl 14.7 of the MAA Medical Assessment Guidelines so that the word "application" in the phrase "outcome of the application" was a reference to the previous medical assessment ([49]; [103]; [104]; [111]). [36] It follows that the clear and obvious meaning of the phrase "additional relevant information" as used in s 62 is information which is additional to that which was before the medical assessor when the previous medical assessment was carried out. It is not a reference to information which is additional to that which may have been considered by a proper officer in a previous application for a referral for further medical assessment. [37] Such an interpretation is consistent with the purpose of s 62, which is to ensure that all relevant information is before the medical assessor to enable an accurate medical assessment to be made. What the section is designed to do is to allow a further medical assessment to occur where additional information has come to light or the claimant's position has changed since the time of the original assessment. There is no warrant in either the words or purpose of the section to give the phrase "additional relevant information" the narrow meaning sought by the plaintiff. [38] If that construction of s 62 is correct, then the observation of Macfarlan JA (with whom McColl JA agreed) in Rodger v De Gelder as to the difficulties associated with challenging the decision of a proper officer in relation to the referral of a matter for further medical assessment, needs to be kept in mind. His Honour said: 113 The decision to refer a claimant for a further medical assessment is made by an administrative officer and, whilst not a purely procedural step, is nevertheless not the ultimate step in the relevant process (that being the further medical assessment itself). Bearing this in mind, my view is that on the proper construction of s 62(1A), the capacity of the additional information to affect a further medical assessment is a matter for the subjective satisfaction of the Proper Officer. It is not necessary that that capacity exist as a matter of objective fact. 114 In these circumstances the grounds available for successful judicial review are limited (see Minister for Immigration and Citizenship v SZMDS [2010] HCA 16 ; (2010) 240 CLR 611). In my view none have been established here. The first respondent's submissions do not amount to any more than an attempt to contest the merits of the Proper Officer's decision concerning the relevant capacity. They do not establish that the decision was irrational, illogical or otherwise liable to review on one of the grounds to which reference is made in SZMDS. [39] The "floodgates" argument is not made out. Not only does the proper officer have sufficient powers within s62 to reject applications which fail to meet the criteria there set out, but cll , and 14.7 of the MAA Medical Assessment Guidelines enable a proper officer to peremptorily deal with the sort of applications for further medical assessment identified by the plaintiff. [40] The second submission by the plaintiff was that when the proper officer determined the application for further medical assessment on 3 December 2012, she had already determined the insurer's earlier application of 30 April Both applications contained the same two medical reports of Professor Boyce and Dr Loiselle. The plaintiff submitted that once the proper officer's power under s 62 was lawfully exercised in respect of the earlier application, that power was wholly spent and it could not be re-exercised in the circumstances that existed here. The plaintiff submitted that the doctrine of functus officio applied. It followed, so the plaintiff submitted, that the proper officer had no power to make the impugned decision on 3 December 2012 and that the decision was therefore ultra vires and invalid. [41] The plaintiff submitted that the proper officer simply did not have the power to determine the very same matter, on the very same documents, again. The plaintiff relied upon a number of cases dealing with the doctrine of functus officio

12 Page 11 to support this submission. One of those cases was Jayasinghe v Minister for Immigration and Ethnic Affairs [1997] 76 FCR 301 at 311 where Goldberg J said: Even if a "decision" for the purposes of s 475(1)(b) of the Act does bear a broader meaning than simply the final determination of the substantive application before it I do not consider that the Tribunal has the power to reconsider or re-open its final decision on a review determining the substantive application. The existence of such a power is essentially a matter of statutory construction. No such power is referred to expressly in the Act and if such power exists it must be found by implication in the statutory scheme... I do not consider it a correct characterisation of the doctrine of functus officio to call it a "legal technicality". Rather it is a description or consequence of the performance of a function having regard to the statutory power or obligation to perform that function. The effect of the application of the doctrine is that once the statutory function is performed there is no further function or act for the person authorised under the statute to perform... This consequence was recognised by Mr Downing who submitted that once a decision on the merits was made by the Tribunal its power was spent and that any further decision to re-open that decision on the merits was ultra vires. He relied upon the judgment of Gummow J in Minister for Immigration, Local Government and Ethnic Affairs v Kurtovic (1990) 21 FCR 193 at 211 where his Honour said: The result is that when the decision-maker attempts to resile from his earlier decision, he is prevented from doing so not from any doctrine of estoppel, but because his power to do so is spent and the proposed second decision would be ultra vires. The matter is one of interpretation of the statute conferring a particular power in issue. [42] At 312 Goldberg J reviewed the decision of French J in Sloane v Minister for Immigration Local Government and Ethnic Affairs [1992] 37 FCR 429 and said: French J observed that whether reconsideration of a statutory decision might itself be a course contemplated or authorised by the statute was a question of statutory construction which involved conflicting policy considerations. His Honour identified the policy considerations against the implication of a power to reconsider a statutory decision in the following passage (at 443): The implication into an express grant of statutory power of a power to reconsider its exercise would be capable, if not subject to limitation, of generating endless requests for reconsideration on new material or changed circumstances. Each decision taken in the exercise of such an implied power would arguably attract the application of the Administrative Decisions (Judicial Review) Act or the constitutional jurisdiction conferred on the High Court by s 75(v) of the Constitution and in its statutory form, on this Court by s 39B of the Judiciary Act. It would be hard to resist the proposition that a refusal to reconsider an earlier decision has the character of a final or operative decision in the extended sense contemplated by the High Court in Australian Broadcasting Tribunal v Bond. And if authorised by implication from the grant of primary decision-making power, the refusal to reconsider in such a case would seem to answer the description of a decision made "under an enactment". A decision is made under an enactment if it is made "insurance pursuance of" or "under the authority of" the Act or ordinance or instrument concerned. His Honour then noted the competing policy considerations in favour of the implication of the power to reconsider a statutory decision in these terms (at 443):

13 Page 12 Against the difficulties that may arise from the implication of a power to reconsider a decision there is the convenience and flexibility of a process by which a primary decision-maker may be persuaded on appropriate and cogent material that a decision taken ought to be re-opened without the necessity of invoking the full panoply of judicial or express statutory review procedures. There is nothing inherently angelical about administrative decision-making under the grant of a statutory power that requires the mind that engages in it to be unrepentantly set upon each decision taken. His Honour then identified the manner in which a court should approach the question of whether an implication should be found in a statute (at 443): The general question whether an implication should be found in the express words of a statute has been said to depend upon whether it is proper, having regard to accepted guides to construction, to find the implication and not on whether the implication is "necessary" or "obvious": see F A R Bennion, Statutory Interpretation (1984), p 245. While implication can often be justified by necessity, it should not be limited by that condition. The question whether some power, right or duty is to be implied into a statute will depend upon the construction of the provisions under consideration having regard to their purpose and context and other traces of the convenient phantom of legislative intention. Where a statute confers a power there is ample support for the proposition that the donee of the grant will enjoy the rights and powers necessary to the exercise of the primary grant. The so called "inherent jurisdiction" or "implied incidental power" of a statutory court derives from that general principle: see Jackson v Sterling Industries Ltd (1987) 162 CLR 612 at 623. [43] The plaintiff relied upon the decision of Chesterman J in Firearm Distributors Pty Ltd v Carson [2000] QSC 159 and the discussion of this issue by the late Professor Enid Campbell in "Revocation and Variation of Administrative Decisions", published in 1996, 22 Monash University Law Review, p 30 where she said: There are many cases in which courts have asserted or assumed that a valid and perfected decision of an administrative character which affects individual rights or liabilities cannot be revoked or altered by the decision-maker unless there is a statutory authority (express or implied) to revoke or alter the decision. This general rule has been applied even where the decision has been based on some error of fact or has been sought to be re-opened after discovery of fresh evidence. Valid and perfected decisions which courts have held to be irrevocable, in the absence of statutory authority to rescind or vary them, have included decisions about compensation or other monetary grants payable under legislation... [44] I have concluded that the plaintiff's submission based on functus officio should be rejected. [45] The start point for a question of statutory interpretation must be the statute itself. As indicated, the clear intention of s 62 is to allow further medical assessment to occur (subject to the other requirements of the section being met) where additional information has come to light or the claimant's position has changed since the time of the original medical assessment. The section clearly envisages "one or more further occasions" on which a matter can be referred for medical assessment. [46] It is also necessary to have regard to the function performed by the proper officer pursuant to the section. As was decided in Rodger v De Gelder, s 62 does affect rights and is therefore amenable to supervision by this court. The nature of the rights affected, however, is important when considering the question of functus officio. At [70] Beazley JA said: 70 The determination made under s 62, in my opinion, falls within the second situation described in Hot Holdings v

14 Page 13 Creasy. The task of the Proper Officer involves making a decision that affects rights, as it is the outcome of the medical assessment that determines whether or not a person has an entitlement to damages for non-economic loss. True it is that it is the outcome of the further medical assessment (if any) that determines the legal rights of the parties. However, the decision of the Proper Officer as to whether the further information or deterioration in the injury is capable of having a material effect on the outcome of the previous assessment, "sufficiently determines or is connected" with that decision and in my opinion, is amenable to an order in the nature of certiorari. [47] The reference to the second situation described in Hot Holdings is a reference to the following observation by Brennan CJ, Gaudron and Gummow JJ in Hot Holdings Pty Ltd v Creasy [1996] HCA 44 ; 185 CLR 149 at 159 where their Honours said: 23 This formulation encompasses two broadly typical situations where the requirement of legal effect is in issue: (1) where the decision under challenge is the ultimate decision in the decision-making process and the question is whether that ultimate decision sufficiently "affects rights" in a legal sense; (2) where the ultimate decision to be made undoubtedly affects legal rights but the question is whether a decision made at a preliminary or recommendatory stage of the decision-making process sufficiently "determines" or is connected with that decision. [48] As already indicated, Macfarlan JA with whom McColl JA agreed, characterised the function performed by the proper officer under s 62 as: whilst not a purely procedural step is nevertheless not the ultimate step in the relevant process (that being the further medical assessment itself). [49] The cases in which the doctrine of functus officio has been found to apply and on which the plaintiff relied, all relate to final operative decisions which were sought to be re-opened or reconsidered. That is not the function performed by s 62. Although it does affect rights, it operates as a gateway provision giving access, if its conditions are satisfied, to a further medical assessment. [50] Section 62 envisages the possibility of multiple applications for referral for medical assessment. The insurer's application of 5 October, which was successful, was not an application to reconsider or re-open. It was a separate and distinct application from that made in April The application in April 2012 consisted of 154 documents with an extensive description of each one, together with written submissions. The application of October 2012 consisted of two medical reports with short and different submissions which specifically addressed the s 62(1A) issue. Although those two reports had been included in the 154 documents previously submitted to the proper officer, the applications were not the same, nor were the submissions. Had the applications been the same or had they contained the same material, they could have been peremptorily disposed of under cll , or 14.7 of the MAA Medical Assessment Guidelines. [51] In Minister for Immigration and Ethnic Affairs v Kurtovic [1990] 21 FCR 193 at 211 Gummow J said:

15 Page 14 There was "an inconvenient common law doctrine of somewhat uncertain extent to the effect that a power conferred by statute was exhausted by its first exercise"... However, s 33(1) of the Acts Interpretation Act 1901 (Cth) (which was modelled upon s 32(1) of the Interpretation Act 1889 (UK)) provides that where an Act confers a power or imposes a duty, then unless the contrary intention appears, the power may be exercised and the duty shall be performed "from time to time as occasion requires". But in any given case, a discretionary power reposed by statute in the decision maker may, upon a proper construction, be of such a character that it is not exercisable from time to time and it will be spent by the taking of the steps or the making of the statements or representations in question, treating them as a substantive exercise of the power. The result is that when the decision maker attempts to resile from his earlier position, he is prevented from doing so not from any doctrine of estoppel, but because his power to do so is spent and the proposed second decision would be ultra vires. The matter is one of interpretation of the statute conferring the particular power in issue. [52] In this case the statute expressly envisages the possibility of multiple applications, subject to the satisfaction of the tests set out in the section. If I am wrong in that interpretation, then a power in the proper officer to consider multiple applications for a referral for a further medical assessment should be implied into s 62 given its clear purpose. The section contains within it, its own requirements for the consideration of an application for further referral. It is not necessary for the proper operation of the section to impose a further restriction to the effect that an application for further referral is not to be even considered by a proper officer if it contains some material which was previously considered by a proper officer. This is particularly so when such a restriction is not in terms stated in the section and would seem to be contrary to the intent of the section. [53] Put another way, the focus of s 62 is not on the concept of finality. Its focus is on a capacity to adjust to a change in circumstances, or the provision of additional information. What the section appears to be directed to is ensuring, as best it can, that the medical assessment is based on all relevant and up to date material, i.e. that the medical assessor makes his or her assessment based on complete up to date information. [54] In submissions, the insurer relied upon another statement of Professor Enid Campbell in the same article at p 54 where she said: Finally, it should be noted that if a decision involves the rejection of an application, there may be nothing to prevent the applicant making a fresh application which the decision-maker is then bound to determine. The only situation in which a fresh application could not be entertained was where the decision made on the first application was made by a body which, for the purposes of the doctrine of estoppel per res judicata, was a judicial tribunal, and the second or later application raised exactly the same matter as that decided in the first application. That exception does not apply here. [55] The third submission by the plaintiff was that although the application before the proper officer contained reports from two neurologists, she failed to have any regard to one of them, namely the report of Dr Loiselle. The plaintiff submitted that his report was a relevant consideration that she was required to take into account in making her determination under s 62 and that she failed to do so. The plaintiff submitted that this failure constituted a jurisdictional error. In the alternative, the plaintiff submitted, that the proper officer was bound to abide by cl 14.8 of the MAA Medical Assessment Guidelines. The plaintiff submitted that by failing to refer to the medical report of Dr Loiselle in her reasons, she had failed to do so. The plaintiff submitted that this failure constituted a jurisdictional error or an error of law on the face of the record. [56] In order to support that submission, the plaintiff relied upon Craig v South Australia [1995] HCA 58 ; 184 CLR 163 where the court said at 179:

16 Page 15 If such 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 the 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. [57] The plaintiff submitted that the errors identified in that passage from Craig were non-exhaustive and were further defined in Minister for Immigration and Multicultural Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30 ; 206 CLR 323 at [82] upon which he also relied. There the plurality (McHugh, Gummow and Hayne JJ) said: "Jurisdictional error" can thus be seen to embrace a number of different kinds of error, the list of which, in the passage cited from Craig, is not exhaustive. Those different kinds of error may well overlap. The circumstances of a particular case may permit more than one characterisation of the error identified, for example, as the decision-maker both asking the wrong question and ignoring relevant material. What is important, however, is that identifying a wrong issue, asking a wrong question, ignoring relevant material or relying on irrelevant material in a way that affects the exercise of power is to make an error of law. Further, doing so results in the decision-maker exceeding the authority or powers given by the relevant statute. In other words, if an error of those types is made, the decision-maker did not have authority to make the decision that was made; he or she did not have jurisdiction to make it. Nothing in the Act suggests that the Tribunal is given authority to authoritatively determine questions of law or to make a decision otherwise than in accordance with the law. [58] Reliance was placed by the plaintiff on Owen v Motor Accidents Authority (NSW) [2012] NSWSC 650 ; 61 MVR 245 (S Campbell J) [42]-[44]. There his Honour held that jurisdictional error had occurred because a medical review panel had failed to take into account relevant considerations in that the panel had failed to take into account medical evidence which provided support for a medical condition which the panel had rejected. [59] In the alternative, the plaintiff submitted, that the proper officer's failure to make any reference to the report of Dr Loiselle constituted a failure to provide reasons, as required by cl 14.8 of the MAA Medical Assessment Guidelines. [60] The third submission by the plaintiff should be rejected. [61] Insofar as compliance with cl 14.8 of the MAA Medical Assessment Guidelines is concerned, the submission is without substance. The proper officer is only required to provide "brief written reasons for the decision". Those reasons are set out in part at [20] hereof. Nothing more is required by cl The reasons do not have to be comprehensive or refer to every piece of evidence. They simply have to disclose the basis for the decision. This the proper officer did. The report of Professor Boyce was sufficient in her opinion to satisfy the requirements of s 62(1A). That being so, she did not need to say anything more. [62] There was no jurisdictional error by "ignoring relevant material" when the proper officer made no reference to the report of Dr Loiselle. In all the cases on which the plaintiff relied, the material ignored was "relevant" because it tended towards a different outcome to that determined by the decision-maker. As such the decision-maker had to show that he or she had at least considered it. [63] Such is not the case here. Far from being neutral, the report of Dr Loiselle supported and confirmed the decision of the proper officer. He was the first treating neurosurgeon and concluded that if the plaintiff had epilepsy, it was not related to the motorbike accident. This was not something which Professor Boyce had previously been aware of, nor was it something which the medical assessor had been aware of. Accordingly, the report of Dr Loiselle was properly to be regarded as either irrelevant to the decision of the proper officer, or as supporting it, so that the failure to mention it could not constitute jurisdictional error, or error on the face of the record. The acknowledgement of the report of Dr Loiselle by the proper officer would not and could not have affected the exercise of the power under challenge.

17 Page 16 [64] The other approach (which I accept) is that relied upon by the insurer in its submissions, ie once the proper officer had identified a document (in this case the report of Dr Boyce) which satisfied the gateway provisions of s 62 so as to justify the exercise by her of the referral power given by the section, it was not necessary for her to refer to the other document. The content of the report of Professor Boyce was sufficient to access the gateway provisions of s 62 without the proper officer needing to consider whether the contents of Dr Loiselle's report did so. Put another way, a consideration of the report of Dr Loiselle would not have affected the result and the exercise of the power of referral by the proper officer. [65] It follows from the above that the plaintiff's summons should be dismissed. [66] The orders which I make are as follows: (1) Summons dismissed. (2) The plaintiff to pay the third defendant's costs of the proceedings. Order Summons dismissed. The plaintiff to pay the third defendant's costs of the proceedings. Counsel for the plaintiff: Mr M Robinson SC and Mr J Zmood Counsel for the third defendant: Mr C Jacksona and Mr N Hogan Solicitors for the plaintiff: Monaco Solicitors Solicitors for the first and second defendants: IV Knight, Crown Solicitor Solicitors for the third defendant: Hunt & Hunt

18 ---- End of Request ---- Download Request: Current Document: 1 Time Of Request: Thursday, September 26, :39:08

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