New South Wales Court of Appeal CITATION: Ryan & Anor v Watkins & Anor [2005] NSWCA 426 HEARING DATE(S): 11/07/05 JUDGMENT DATE: 5 December 2005 JUDGMENT OF: Mason P at 1; Handley JA at 2; Campbell AJA at 3 DECISION: 1. Leave to Appeal granted ; 2. Notice of Appeal to be filed within seven days; 3. Appeal dismissed ; 4. Appellants to pay first respondent's costs of the appeal ; 5. Second respondent to pay own costs of the appeal. CATCHWORDS: Privilege - public interest immunity - ss 129, 130 Evidence Act 1995 (NSW) - certificates and report of Medical Assessor under Motor Accidents Compensation Act 1999. Motor Accidents Compensation Act 1999 Evidence Act 1995 (NSW) LEGISLATION CITED: Workmen's Compensation (Lead Poisoning - Broken Hill) Act 1926 National Insurance (Industrial Injuries) Act 1946 Migration Act 1958 (Cth) Esso Australia Resources Ltd v The Commissioner of Taxation (1999) 201 CLR 49 Duke of Buccleuch v Metropolitan Board of Works (1871) LR 5 HL 18 O'Rourke v The Commissioner for Railways (1980) 15 App.Cas.371 Herijanto v Refugee Review Tribunal [2000] 170 ALR 437 Hennessy v BHP Co Ltd (1926) 38 CLR 342 CASES CITED: Ward v Shell-Mex and BP Ltd (1952) 1 KB 280 Lamb v Moss [1983] 49 ALR 533 Sutcliffe v Thackrah (1974) AC 727 Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 Ex parte Walsh and Johnson; In Re Yates (1925) 37 CLR 36 Epeabaka v Minister for Immigration and Multicultural Affairs (1997) 150 ALR 397 Dr Michael Ryan - First Appellant The Motor Accidents Authority of NSW - Second Appellant PARTIES: Robert Watkins - First Respondent Tania Power - Second Respondent FILE NUMBER(S): CA 40955/04 S J Gageler SC with M A Robinson - Appellants COUNSEL: G R Petty SC with J T Kearney - 1st Respondent P R Cummings - 2nd Respondent R Dawson, Solicitor, Motor Accidents Authority of NSW - Appellants SOLICITORS: Michael Evers & Co - 1st Respondent Hunt & Hunt - 2nd Respondent LOWER COURT JURISDICTION: District Court LOWER COURT FILE NUMBER(S): DC 642/03 LOWER COURT JUDICIAL OFFICER: Sidis DCJ IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40955/04 DC 642/03 MASON P HANDLEY JA M W CAMPBELL AJA Monday 5 December 2005 RYAN & ANOR v WATKINS & ANOR Judgment 1 MASON P: I agree with Campbell AJA. 2 HANDLEY JA: I agree with Campbell AJA 3 CAMPBELL AJA: Introduction. This is an application for leave to appeal and, if leave is granted, an appeal, heard concurrently against the refusal of Judge Sidis of the District Court to set aside two subpoenas for the production of material I later specify. 4 The first claimant Dr Michael Ryan ("the medical assessor") was at all relevant times a medical assessor duly appointed pursuant to the provisions of the Motor Accidents Compensation Act 1999 (NSW) ("the Act"). The second claimant is the Motor Accidents Authority of NSW ("the Authority") established by the Act. 5 The first opponent Robert Watkins ("the plaintiff") suffered personal injury as a result of a motor accident admittedly the fault of the second opponent Tania Power ("the defendant"). 6 Pursuant to procedures to which I shall come the plaintiff was examined by the medical assessor on 12 November 2002. The medical assessor issued certain certificates and a statement of reasons. 7 On 17 November 2003 the plaintiff filed a statement of claim in the District Court claiming damages for his injuries and their consequences. 8 On 27 August 2004 Judge Sidis heard a number of interlocutory applications including motions by the medical assessor and the Authority to set aside subpoenas addressed to them. 9 On 14 October 2004 her Honour gave judgment on the applications and, amongst other things, dismissed the applications to set the subpoenas aside. 10 It is unnecessary to detail all the matters in issue before the Judge because the application before us was expressly limited to the refusal of the Judge to accept the claim of public interest immunity in respect of the following documents: "Documents from the Medical Assessor's File a. ……… b. The Medical Assessor's handwritten notes of the medical examination made on 12 November 2003 (3 pages in the medical assessor's handwriting) and a one page form styled ":MAA assessment" (a medical assessor checklist provided to the medical assessor by the MAA) which is completed in the medical assessor's handwriting and dated by him 12 November 2002. c. A 12 page draft reasons for assessment of a medical dispute and certificates dated 20 November 2002 not signed styled "First Draft". d. A two page facsimile transmission from an "Assessments Reports Officer" of the MAA to the medical assessor dated 10 March 2003 being a request from an officer of the MAA made pursuant to clause 10.11 of the MAA's Medical Assessment Guidelines (at Tab 8 of the White Book) being a request of an officer of MAS for the medical assessor to correct an error in the medical assessor's draft reasons for assessment of a medical dispute or certificate. e. A 13 page draft reasons for assessment of a medical dispute and certificates dated 20 November 2002 not signed styled "2nd Draft". Documents from the MAA's Files f. A copy of a 12 page draft reasons for assessment of a medical dispute and certificates dated 20 November 2002 received [by] the MAA on 28 November 2002. g. A two page facsimile transmission from an "Assessments Reports Officer" of the MAA to the medical assessor dated 10 March 2003 (with the facsimile transmission report attached) from the MAA's files being a request from an officer of the MAA made pursuant to clause 10.11 of the MAA's Medical Assessment Guidelines (at Tab 8 of the White Book) being a request for an officer of MAA for the medical assessor to correct an error in the medical assessor's reasons for assessment of a medical dispute or certificate." 11 This description is taken from an affidavit of Mr Dawson, the solicitor for the claimants, which the Court permitted to be read on the appeal. Mr Petty of Senior Counsel, who appeared with Mr J T Kearney for the plaintiff, initially objected to the use of this description, however, I did not understand him to maintain that objection. 12 The description is more complete but not essentially different to that enunciated by Mr M A Robinson of Counsel who appeared for the claimants before Judge Sidis as follows: "3. The documents in respect of which privilege is claimed may be described as: a. Internal medical assessment practice management (two documents); b. The Medical Assessor's handwritten notes of the medical examination – one document of which is recorded on the MAA assessment form (the assessor checklist) referred to in the Authority's letter to the Medical Assessor dated 23 October 2002 (two documents): c. Written Communications with an officer of the Authority (one document); and d. Draft certificates and reasons for certificates (two documents). 4. The Authority seeks similar orders relating to the subpoena addressed to it in relation to documents concerning communications between the Medical Assessor and the Authority regarding the medical assessment (other than those documents that were copied to the parties as at the time of the said assessment). In the present case, there are three documents in respect of which the Authority claims privilege and some computer records." 13 As it happens nothing turns upon the precise description of the documents. The Court was invited by all Counsel to inspect the documents if it were thought appropriate to do so. On the view I take of the matter such inspection is unnecessary. Leave 14 The trial of the plaintiff's action has been adjourned to an indefinite date in order that the plaintiff may undergo back surgery before the hearing. It is very likely that there will need to be a further examination by a medical assessor. 15 In these circumstances the present issues are of only peripheral importance to the action. However, we are informed and I accept that the question of public interest immunity for documents relating to examinations by medical assessors pursuant to the Act is of general importance and has arisen and will arise in significant numbers of cases brought to recover damages resulting from injuries suffered in motor car accidents. 16 The claimants have agreed to pay the plaintiff's costs of the appeal in any event. On that basis I propose that leave be granted. I note that the defendant is content to pay her own costs. The District Court Rules 17 Part 29 of the Rules deals with subpoenas. It provides, amongst other things: " 1. ………… privileged document or thing in relation to a subpoena, means: (a) a document or thing of which evidence could not be adduced in an action over the objection of any person, by virtue of the operation of Part 3.10 (other than sections 128 and 130) of the Evidence Act 1995, (b) if the party on whom the subpoena is served is a natural person – a document or thing the contents or production of which may tend to prove that the party: (i) has committed an offence against or arising under an Australian law or a law of a foreign country, or (ii) is liable to a civil penalty, within the meaning of the Evidence Act 1995, (c) a document that relates to matters of state within the meaning of section 130 of the Evidence Act 1995, unless and until the Court directs that it cease to be a privileged document. …………….. Application of Part 3.10 of the Evidence Act 1995. 11. Nothing in this Part compels a person on whom a subpoena is served to produce a privileged document or thing." 18 Part 28 of the Rules provides, amongst other things: (4) This rule does not affect any rule of law which authorises or requires the withholding of any document or thing or the refusal to answer any question on the ground that the disclosure of the document or thing or the answering of the question would be injurious to the public interest." 19 It is common ground that Pt 28 r 4 makes it clear that the common law of public interest immunity remains applicable in circumstances such as the present. 20 This appeal fell to be determined on the application of the District Court Rules 1973. Whilst the matter was not a subject of argument it would seem that the same result would follow from the application of the Uniform Civil Procedure Rules 2005, particularly Pt 1.9 and the Dictionary. The Evidence Act 1995 21 Part 3.10 of the Evidence Act 1995, provides amongst other things: "129 Exclusion of evidence of reasons for judicial etc decisions (1) Evidence of the reasons for a decision made by a person who is: (a) a judge in an Australian or overseas proceeding, or (b) an arbitrator in respect of a dispute that has been submitted to the person, or to the person and one or more other persons, for arbitration, or the deliberations of a person so acting in relation to such a decision, must not be given by the person, or a person who was, in relation to the proceeding or arbitration, under the direction or control of that person. (2) Such evidence must not be given by tendering as evidence a document prepared by such a person. (3) This section does not prevent the admission or use, in a proceeding, of published reasons for a decision. (4) …….. (5) ….. 130 Exclusion of evidence of matters of state (1) If the public interest in admitting into evidence information or a document that relates to matters of state is outweighed by the public interest in preserving secrecy or confidentiality in relation to the information or document, the court may direct that the information or document not be adduced as evidence. (2) ……… (3) ……… (4) Without limiting the circumstances in which information or a document may be taken for the purposes of subsection (1) to relate to matters of state, the information or document is taken for the purposes of that subsection to relate to matters of state if adducing it as evidence would: ………….. (f) prejudice the proper functioning of the government of the Commonwealth or a State. (5) …………." 22 The Dictionary of the Evidence Act 1995 provides, amongst other things: " Australian court means: (a) the High Court; or (b) a court exercising federal jurisdiction; or (c) a court of a State or Territory; or (d) a judge, justice or arbitrator under an Australian law; or (e) a person or body authorised by an Australian law, or by consent of parties, to hear, receive and examine evidence; or (f) a person or body that, in exercising a function under an Australian law, is required to apply the laws of evidence. Australian or overseas proceedings means a proceeding (however described) in an Australian court or a foreign court. judge, in relation to a proceeding, means the judge, magistrate or other person before whom the proceedings is being held." The Act 23 Prior to the plaintiff commencing proceedings in the District Court he had referred his "disagreement" with the defendant's insurer (related principally to the effect upon his alleged back injury of a pre-existing back condition) for medical assessment under Part 3.4 of the Act. 24 An award could not be made for non-economic loss "unless the degree of permanent impairment of the injured person as a result of the injury caused by the motor accident is greater than ten percent". (s 131). 25 Further, there being a dispute as to whether the degree of permanent impairment was sufficient for an award of damages for non-economic loss, the court could not "award any such damages unless the degree of permanent impairment has been assessed by a medical assessor under Part 3.4". (s 132). 26 It is convenient to refer to certain of the provisions of Part 3.4 which is headed "Medical Assessment". 27 Section 58 provides; " Application (1) This Part applies to a disagreement between a claimant and an insurer about any of the following matters: (a) whether the treatment provided or to be provided to the injured person was or is reasonable and necessary in the circumstances, (b) whether any such treatment relates to the injury caused by the motor accident, (c) whether an injury has stabilised, (d) the degree of permanent impairment of the injured person as a result of the injury caused by the motor accident, (e) the degree of impairment of the earning capacity of the injured person as a result of the injury caused by the motor accident. (2) This Part also applies to any issue arising about such a matter in proceedings before a court or in connection with the assessment of a claim by a claims assessor." 28 Section 60 provides: "Medical assessment procedures (1) A medical dispute may be referred for assessment under this Part by either party to the dispute or by a court or claims assessor. (2) If the insurer disputes all liability under a claim the dispute cannot be referred for assessment under this Part by the claimant alone. (3) The request for a referral is to be made to the officer of the Authority designated by the Authority for the purpose (in this Part referred to as the proper officer of the Authority ). (4) The proper officer of the Authority is to arrange for any such request that is duly made to be referred to one or more medical assessors." 29 Section 61 provides "Status of medical assessments (1) The medical assessor or assessors to whom a medical dispute is referred is or are to give a certificate as to the matters referred for assessment. (2) Any such certificate as to: (a) whether the degree of permanent impairment of the injured person is greater than 10%, or (b) whether any treatment already provided to the injured person was reasonable and necessary in the circumstances, or (c) whether an injury has stabilised, is conclusive evidence as to the matters certified in any court proceedings or in any assessment by a claims assessor in respect of the claim concerned. (3) Any such certificate as to any other matter is evidence (but not conclusive evidence) as to the matters certified in any court proceedings or in any assessment by a claims assessor in respect of the claim concerned. (4) In any court proceedings, the court may (despite anything to the contrary in this section) reject a certificate as to all or any of the matters certified in it, on the grounds of denial of procedural fairness to a party to the proceedings in connection with the issue of the certificate, but only if the court is satisfied that admission of the certificate as to the matter or matters concerned would cause substantial injustice to that party. (5) If a certificate as to any matter is rejected under subsection (4), the court is to refer that matter again for assessment under this Part and adjourn the proceedings until a further certificate is given and admitted in evidence in the proceedings. (6) However, if a certificate as to whether or not the degree of permanent impairment of the injured person is greater than 10% is rejected under subsection (4), the court may, if it considers it appropriate, substitute a determination of the court as to the degree of permanent impairment of the injured person (assessed by the court in accordance with section 133) instead of referring that matter again for assessment under this Part. (7) Except as provided by subsection (6), a court may not substitute its own determination as to any matter referred to in subsection (2) (a), (b) or (c). (8) This section: (a) does not prevent a court from referring a matter again for assessment under this Part (as provided for by section 62), and (b) does not require a court to refer a matter again for assessment under this Part if the matter is not a matter referred to in subsection (2) (a), (b) or (c). (9) A certificate is to set out the reasons for any finding by the medical assessor or assessors as to any matter certified in the certificate in respect of which the certificate is conclusive evidence." 30 It is convenient to note that the plaintiff expressly made clear before Judge Sidis that he would not at the trial rely upon an allegation of denial of procedural fairness. 31 Section 62 provides: "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. (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.' 32 Section 63 provides: "Review of medical assessment by review panel (1) A party to a medical dispute may apply to the proper officer of the Authority to refer a medical assessment under this Part by a single medical assessor to a review panel of medical assessors for review. (2) An application for the referral of a medical assessment to a review panel may only be made on the grounds that the assessment was incorrect in a material respect. (3) The proper officer of the Authority is to arrange for any such application to be referred to a panel of at least 3 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. (4) The review panel may confirm the certificate of assessment of the single medical assessor, or revoke that certificate and issue a new certificate as to the matters concerned. (5) Section 61 applies to any such new certificate." 33 Section 65 provides: "MAA monitoring and oversight (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. (2) The Authority may arrange for the provision of training and information to medical assessors to promote accurate and consistent medical assessments under this Part." 34 Section 44 (1) (d) provides that the Authority may issue guidelines for, amongst other things: "the procedures for the referral of disputes for assessment or review of assessments and the procedure for assessment, under Part 3.4". 35 The Medical Assessment Guidelines provide, amongst other things, for the maintenance of a registry and for proceedings for referral to an appointed medical assessor or assessors. 36 Chapter 8 of the Guidelines provides: "8.1 The Proper Officer, an officer of MAS or an assessor including members of any review panel are not bound by the rules of evidence and may conduct any preliminary assessment or assessment in such manner as they think fit, subject to the rules of procedural fairness. In particular the Proper Officer and the assessor should abide by the following principles: 8.1.1 Evidence should be logical and probative. 8.1.2 Evidence should be relevant to the facts in issue and the issues in dispute. 8.1.3 Evidence based on speculation or assumptions that are not substantiated must not be accepted. 8.1.4 Unqualified opinions are not to be accepted. 8.2 The Proper Officer, an officer of MAS and an assessor are to take such measures as are reasonably practicable: 8.2.1 To ensure that the parties to the application understand the nature of the application. 8.2.2 To explain to the parties any aspect of the procedure of the assessment, or any decision or ruling made by the Proper Officer or Assessor, that relates to the application; and 8.2.3 To ensure that the parties have the fullest opportunity practicable to have their submissions considered and 8.2.4 To ensure that the parties have had the opportunity to explore the settlement of the dispute. 8.3 The Proper Officer, an officer of MAS and an assessor are to act as quickly as is practicable in any preliminary assessment or assessment of a matter. 8.4 The Proper Officer, an officer of MAS and an assessor are to ensure that all relevant material is available so as to enable all of the relevant facts in issue to be determined." 37 Chapter 9 provides: 9.7 An officer of MAS, the Proper Officer or any assessor is not to take into consideration, in the course of the assessment, any documentation or information that is not shared between the parties." 38 Chapter 10 provides: "10.1 Upon completion of the assessment the assessor is to prepare a clear, accurate and complete report concerning the dispute or disputes between the claimant and the insurer. 10.2 The report must be in the form approved by the Authority and must include in all cases a list of all the documents reviewed and considered by the medical assessor. ……………. 10.8 The assessor is to give a certificate as to the matters referred for assessment. The certificate shall certify: ………………… 10.10 A draft copy of the report and certificate is to be provided to the Proper Officer within 15 days of the conclusion of an assessment. 10.11 An assessor may, at his or her own motion or at the request of an officer of MAS, correct or request the correction of an error in the draft report or certificate. 10.12 If the draft report or certificate is so altered, the altered draft report or certificate may be executed by the assessor. 10.13 Examples of errors in the certificate or report are where: 10.13.1 There is an obvious clerical or typographical error. 10.13.2 There is an error arising from an accidental slip. 10.13.3 There is an error arising from an omission. 10.13.4 There is a defect of form. 10.13.5 In the case of a certificate or report concerning the assessment of permanent impairment the assessor has not followed the prescribed method of assessment as set out in the AMA Guides to the Evaluation of Permanent Impairment 4th edition or the Authority's Guidelines for the assessment of permanent impairment of a person injured as a result of a motor vehicle accident. 10.14 An officer of MAS shall forward a copy of the final certificate and report to all parties within 5 days of the receipt in the registry of the final certificate and report signed by the assessor. ………………………." 39 The Medical Assessment Service (MAS) has been established by the Authority to resolve medical disputes. Certificates and Report 40 The plaintiff was examined by the medical assessor on 12 November 2002. 41 On 20 May 2003 the Medical Assessment Service of the Authority received from the medical assessor four certificates each referring to the same accompanying report which set out his reasons. The certificates were all dated 12 November 2002 and the report was dated 20 November 2002. 42 By his respective certificates the medical assessor found and certified as follows: 1. That the plaintiff's whole person permanent impairment was not greater than 10%. 2. That the injuries to the neck and right shoulder had stabilised whereas the low back injury had not. 3. That certain identified conservative medical treatment and the proposed spinal surgery were not reasonable and necessary. 4. That the same conservative treatment and the proposed spinal surgery were not causally related to the injury caused by the subject motor accident. 43 Pursuant to the Act certificates 1 and 2 were conclusive as to the matters certified. Certificate 3 was conclusive as to treatment "already provided" but not as to any treatment (including the proposed spinal surgery) thereafter. Certificate 4 was not conclusive. 44 As the matter was argued nothing turns upon the fact that one certificate had both conclusive and non-conclusive aspects. Accordingly I shall for simplicity of expression speak hereafter of conclusive and non-conclusive certificates. 45 The accompanying report was in a conventional form. It dealt, to varying degrees, with all of the plaintiff's injuries as it had to in order to make an assessment of whole person impairment. It contained material that was of forensic use to the defendant. 46 Judge Sidis in her judgment only referred to three of the certificates, however, nothing turns upon this. It is to be noted that Mr Petty conceded that there was no forensic purpose in pursuing material related solely to the conclusive certificates which he accepted were determinative of the matters certified. 47 Judge Sidis conveniently referred to some extracts from the medical assessor's report as follows: "On the basis of contemporary evidence (record of symptoms), I do not consider that Mr Watkins' current low back symptoms are directly related to the accident of the 29 October 1999. …... I regard Mr Watkins lumbosacral spinal impairment as pre-existing. He underwent a discectomy on the 16 September 1977. There was at least a six-month hiatus between the time of his recent accident (29 October 1999) and the recurrence of low back symptoms based on contemporary evidence." 48 At the hearing before Judge Sidis Ms Wardhaugh, appearing for the defendant, indicated that on the trial she would tender the report of the medical assessor. On that hearing Mr Robinson, appearing for the now claimants, said that there had been a draft report which he did not produce and referred to other documents as set out above [10]. The Primary Judgment 49 Mr Gageler of Senior Counsel, who appeared with Mr Robinson for the claimants submitted that, having regard to the limited issue upon which the application and appeal was pressed, it was only necessary to go to portion of the reasoning of her Honour. I agree with that submission and refer to that section of the judgment which deals with the proposition put to her which the Judge stated as follows: "Public interest immunity and public interest privilege apply to protect Dr Ryan, as medical assessor, and the reasons for his determination of the disputes between the plaintiff and the defendant." 50 Her Honour observed (the references are to the Evidence Act 1995): "In respect of these arguments, the Motor Accidents Authority and Dr Ryan relied upon the provisions of ss16, 129 and 130 of the Evidence Act 1995. Their arguments proceeded upon the basis that a medical assessor in determining disputes between claimants and insurers falls within the definition of judge in an Australian or overseas proceeding (Dictionary). As such: (a) the medical assessor cannot, without leave of the court, be compelled to give evidence (subs 16(2)), (b) evidence of the medical assessor's deliberations cannot be given by the assessor, a person under the control of the assessor, or by reference to documents prepared by such a person (s 129), (c) public interest privilege applies to the medical assessor at common law and by statute (s 130), (d) documents possessed by the medical assessor are privileged from production to the court ( District Court Rules, Part 29 r 11)." 51 The Judge continued: "There are the following significant difficulties with these arguments: (a) the Motor Accidents Compensation Act 1999 specifically provides that the determinations of the medical assessor are evidence in subsequent proceedings. Those determinations have the status of either conclusive or non conclusive evidence; (b) the Motor Accidents Compensation Act 1999 specifically provides that the court is to scrutinise conclusive evidence at the very least to determine whether procedural fairness has been afforded to the parties; (c) the Motor Accidents Compensation Act 1999 specifically provides for the court to set aside in appropriate circumstances the certificate of the medical assessor and to substitute its own determination or to refer the matter of the dispute for further assessment. (d) Clause 9.7 of the Medical Assessment Guidelines specifically provides for the sharing with the parties to the dispute of all documentation and information considered by the medical assessor. These specific provisions make it abundantly clear that it is intended that the processes adopted by the medical assessor in assessing the dispute are to be conducted openly so that the information considered may be shared by the parties and scrutinised by the court." 52 Judge Sidis considered that there was no basis to maintain the claims of immunity. Grounds of Appeal 53 Mr Gageler only pressed the grounds of appeal that relate to the issue of public interest immunity. As the matter was argued, it is sufficient to say that those grounds are wide enough to support the contentions put on behalf of the claimants, The Appellant's Submissions 54 Mr Gageler put that the documents for which he sought privilege "in broad terms deal with the decision making or deliberative process undertaken by the medical assessor". He said that it was, fundamentally, on that ground that public interest immunity is sought to be maintained. 55 He asserted that, whilst an arbitrator could be called to give evidence of what took place before him, he could not be asked to give evidence in respect of the deliberative process. He put that that principle was now reflected in s 129 of the Evidence Act and that "it's fundamentally that principle that we seek to invoke here". 56 Mr Gageler demonstrated how the District Court Rules set out above [17] brought s 129 and s 130 of the Evidence Act into operation at the subpoena stage (Esso Australia Resources Ltd v The Commissioner of Taxation (1999) 201 CLR 49 at [18] – [28]). He also noted that under the rules the common law of public interest immunity remained in place. 57 It is convenient to note that Mr Petty did not challenge these matters. 58 Mr Gageler then went to s 129 [20] and submitted that the medical assessor was either an arbitrator falling within subs (1)(b) or a judge within subs (1)(a). 59 As to the meaning of "arbitrator" he referred to the written submissions Mr Robinson had made to Judge Sidis. In those submissions Mr Robinson put that "an arbitrator is properly described as a person to whom a dispute or difference is referred to be resolved by arbitration". Mr Gageler submitted, in my view correctly, that arbitration is fundamentally "the settlement by binding determination of a dispute between parties". 60 As to the meaning of "judge" he relied upon the definitions set out above. [21]. 61 Mr Gageler put that there was nothing in the definition of Australian court paragraph (e) that confined the evidence referred to therein to evidence of the nature that would be received in court. He did, however, exclude "simply (an) investigation agent" and conceded that in the context the person would be one "who is acting judicially". 62 He put that the subjection of the medical assessor to the process required by 10.10 to 10.13 of the Medical Assessment Guidelines [34] was "a quality control process" which did not lead to the conclusion that the medical assessor was not acting judicially. He did concede, I think correctly "that a proposition put back by the officer of the authority that the doctor had not followed the prescribed method of assessment could lead to quite significant changes in the outcome of the report". He also accepted that application of the Guidelines could differ from mind to mind. 63 Mr Gageler then indicated that the appellants relied upon s 130 and in particular subs (4)(f). [20]. Not surprisingly he did not elaborate upon this submission. 64 Whilst accepting that the common law position was substantially encapsulated in ss 129 and 130 Mr Gageler did take the Court to a number of the leading cases dealing with that position. Mr Petty did not join issue on the formulation of the relevant principles and detailed reference to those authorities is unnecessary. 65 The first case to which Mr Gageler referred was Duke of Buccleuch v Metropolitan Board of Works (1871) LR 5 HL 418. 66 The relevant issue was whether certain evidence given by an arbitrator in respect of a dispute was admissible, and if so, to what extent, and for what purpose. 67 Baron Cleasby said at 432: "I answer the first question by giving it as my humble opinion - 1. That the umpire was a competent witness, like any other person, to prove matters material to the issues. 2. That questions might be properly put to him for the purpose of proving the proceedings before him, so as to arrive at what was the subject-matter of adjudication when the proceedings closed, and he was about to make his award. 3. That as regards the effect of the award no questions could properly be put to the umpire for the purpose of proving how it was arrived at, or what items it included, or what was the meaning which he intended at the time to be given to it." 68 At 434 he said: "Thirdly: As soon as the award is made it must speak for itself. It must be applied, as in other cases, by intrinsic evidence to the subject-matter, but cannot be explained or varied or extended by extrinsic evidence of the intention of the person making it. There appear to me to be the strongest objections against allowing the umpire to be examined for the purpose of shewing what he intended to be included in the award." 69 In the same case Lord Cairns said at 462: "As regards the reception of the evidence, in my opinion the line has been most properly and accurately drawn by Mr. Baron Cleasby . It appears to me that upon every point which may be considered to be a matter of fact with reference to the making of the award, the evidence of the arbitrator or umpire was properly admissible. He was properly asked what had been the course which the argument before him had taken – what claims were made and what claims were admitted; so that we might be put in possession of the history of the litigation before the umpire up to the time when he proceeded to make his award. But there it appears to me the right of asking questions of the umpire ceased. The award is a document which must speak for itself, and the evidence of the umpire is not admissible to explain or to aid, much less to attempt to contradict (if any such attempt should be made) what is to be found upon the face of that written instrument." 70 This case was followed by the Privy Council in O'Rourke v The Commissioner for Railways (1890) 15 App.Cas. 371. 71 Herijanto v Refugee Review Tribunal [2000] (170 ALR 379) was a case in which it was sought to administer interrogatories to individual members of a Refugee Review Tribunal. Such members enjoyed by Statute the general protection and immunity of a justice of the High Court. Gaudron J said at 16: "Thus, it is preferable to identify what is within the immunity, rather than that which is outside it. And in my view, the immunity is immunity from disclosing any aspect of the decision-making process. That is what is required to ensure freedom of thought and independence of judgment. And that approach is entirely consistent with what was said in Hennessy ." 72 The case of Hennessy thus referred to (Hennessy v BHP Co Ltd (1926) 38 CLR 342) was the next case to which Mr Gageler turned. 73 In that case a Medical Board appointed under the Workmen's Compensation (Lead Poisoning – Broken Hill) Act 1926 had issued a certificate as to the physical fitness of Hennessy which was held to be "inoperative". The question then arose whether the trial judge had been correct in rejecting evidence of the members of the Medical Board as to Hennessy's physical condition and fitness for work as ascertained by them at an official examination. 74 The High Court upheld the view of the Supreme Court of New South Wales that the trial judge had been in error. The judgment of Knox CJ, Gavan Duffy and Starke JJ, after referring, amongst other things, to the Duke of Buccleuch, went on: "Now, members of the Medical Board are neither Judges nor arbitrators: their functions are administrative and supervisory. To them is confided the duty of ascertaining and certifying whether a workman is or is not suffering from lead poisoning, and whether he should be removed from future exposure to its risks. It is impossible in these circumstances, in our opinion, to deny their competency as witnesses; but the extent to which they can give evidence of matters coming before them officially is another matter. In our opinion the evidence tendered is admissible because it is not prohibited or privileged, because it does not seek to invalidate any act of the Board or to explain, contradict or vary any of its certificates or acts or to disclose the manner in which the Board exercised any of its functions, and because it merely seeks the disclosure of existing facts and symptoms and the opinion of expert witnesses who also happened to be members of the Board upon those facts and symptoms." 75 It is convenient to say at this point Mr Gageler was taken by the Bench to the possibility that the history taken by the medical assessor and the notes of the physical examination, as opposed to comments thereon, might be factual material as to what was before him of which evidence could be given in accordance with the authorities. 76 Mr Gageler replied to this suggestion as follows: GAGELER: "Yes. Your Honour there are really three categories of documents. There are the drafts of the report that were incorporated by reference into the certificate and form the reasons for the certificate in our respectful -- HANDLEY JA: The drafts of the report that later was incorporated into the certificate. GAGELER: Yes, yes. In our respectful submission that clearly enough forms part of the deliberations of the medical assessor and falls squarely within the rule. There are then the communications with the Authority, checking and pointing out errors in the draft. That clearly does not form part of the deliberation as such of the medical assessor but is clearly enough part of the deliberative process in which the medical assessor was engaged. Both of those in our respectful submission fall comfortably within the rule and we accept that when one gets to the notes of the examination that there is more difficulty in the contention but in our respectful submission the notes of the examination where the examination really forms part of the process of considering the evidence, not simply taking the evidence but considering the evidence and forming judgments as the examination progresses is part of the deliberative process but we accept your Honour that that lies in a more difficult stage of proceedings." 77 We were later informed by Mr Gageler that the notes of the examination did contain commentary material. It was suggested that should it be necessary the parties could attend to any necessary deletion of material. 78 The last authority to which Mr Gageler went was Ward v Shell-Mex and BP Ltd (1952) 1 KB 280. Streatfield J accepted that a member of a medical board set up under the National Insurance (Industrial Injuries) Act 1946 could not be called to testify to the plaintiff's condition when he had examined him in the course of his duties as a member of the board. The Judge said: "That is the very question which the court has to decide. There is, of course, the well known exception of the opinion of experts, but although this doctor whose evidence is in issue is an expert, and because he is an expert he was appointed to this board, the opinion which he there expressed was not so much the opinion of an expert as the opinion of a member of a judicial statutory body. Therefore in my view his evidence falls under quite a different principle. He would be an admissible and competent witness to give evidence on the facts and matters which were presented before him but he would not, in my opinion, and I so rule, be able to give any evidence at all as to the reasons which prompted him in coming to the conclusion which resulted in the certificate which was granted by this medical board under the Act. That certificate – I do not know what it was – stands on its own footing and it cannot be contradicted or explained or varied by a member of that tribunal. It seems to me, therefore, that this witness who is tendered is bound to be in this position: either he will support his award, in which case the award speaks for itself, or else he will contradict it, in which case he could be cross-examined on the very line that Cleasby B. said was inadmissible in Duke of Buccleuch's case That being the inevitable result of calling this witness, his evidence ought not to be received." 79 Mr Gageler took the Court through the relevant processes of the Act to which it is not presently necessary to refer. The Defendant's Submissions 80 Mr Cummings of Counsel, who appeared for the defendant, did not seek to add to his written submissions which supported and largely adopted the position of the appellants. The Plaintiff's Submissions 81 Mr Petty put that the medical assessor's certificates did not represent "decisions" in "any usual sense" because they had "many curious features" to which he would come. 82 Further, he put that the process of medical assessment did not have the hallmarks of "proceedings" before a judge or an arbitrator or the like with the consequence that ss 129 and 130 and the associated common law was not engaged. 83 Mr Petty pointed out that of the six matters that could be certified three were rendered conclusive and three were not. There were he submitted good reasons for conclusiveness to be provided for in each of the cases in which it was. 84 As to whole person impairment it is the necessary gateway to a claim for economic loss. As to stabilisation that is the trigger to the steps to be taken by a claimant. As to past medical expenses that is a dispute normally of a fairly limited nature and also involved in some circumstances the obligation of the insurer to pay without awaiting final adjudication. 85 Mr Petty stressed the terms of s 61(3) which, for convenience, I repeat: "Any such certificate as to any other matter is evidence (but not conclusive evidence) as to the matters certified in any court proceedings or in any assessment by a claims assessor in respect of the claim concerned." 86 Thus, Mr Petty argued, it could not be said that the matters set out in the non-conclusive certificates were final because of this statutory description of them. Mr Petty used the word "final" to convey the sense in which a judicial or arbitral decision, not being interlocutory, is final (see Cross on Evidence Aust ed 5025; G Spencer Bower, A K Turner and K R Handley, The Doctrine of Res Judicata, 3rd ed, ch 5; and Russell on Arbitration 19th ed at 333). 87 Further, Mr Petty put in respect of all the certificates that they could not be considered final. Without error being necessarily shown they could be referred again under s 62. They may also be reviewed under s 63. Mr Petty did put that there was no need for error to be found for there to be a review by an enlarged number of assessors. It is, however, to be born in mind that under s 63(2) "An application for the referral of a medical assessment to a review panel may only be made on the grounds that the assessment was incorrect in a material respect." 88 Mr Petty put that, in using the language of s 61(3), the Parliament appreciated that the "evidence" of which the provision spoke would usually be used in the context of medical evidence. He put: "The submission that I was developing is this – the word [evidence]. Parliament must be intended to know how these cases are fought out and they usually involve a contest of expert evidence. Parliament must also be assumed to know that there's an established body of law which requires the party relying on expert evidence and the tribunal of fact to look at what assumptions have been made by the expert and what assumptions have been disclosed by the expert. If it is not possible to test the assessor's evidence in the usual way then a number of very unfortunate consequences - - -" 89 Mr Petty submitted that, on the basis of that knowledge, had the Parliament wished to circumscribe the way in which the medical assessor could be called and examined it could readily have done so. 90 He illustrated his argument with the following situation: "We then have this extraordinary situation that the assessor's report and certificate could be tendered and then a party would be not able to cross-examine that witness in the same way as his or her opponent's other medical witnesses. One of two things could occur. The trial judge might give primacy to the assessor's opinion because it hadn't been effectively challenged or, swinging in the opposite direction, and because it hadn't been tested in the usual way, simply regard it as of no weight. In neither instance is the proper function of the court assisted by the evidence being treated by means of a stereotype." 91 He put that Parliament had either expressly or impliedly evinced the intention that the certificate and the report is to be expert evidence in the usual way and subject to all the developed body of knowledge that relates to expert evidence. 92 Mr Petty then turned to s 129 and submitted that the function of a medical assessor had none of the usual indicia of judicial proceedings, arbitral proceedings or the like. 93 He put that the certificates did not finally decide a matter and that the functions of the medical assessor included a significant investigative role. Mr Petty submitted that the medical assessor did not decide any rights in a relevant sense and drew attention to the provision for successive applications over time. 94 He contended that the fact that the assessor was obliged to act judicially (which he appeared to accept at least for the purposes of the argument) did not mean that he was a judicial officer and referred to Lamb v Moss [1983] 49 ALR 533 at 558-559 and Sutcliffe v Thackrah (1974) AC 727 per Lord Reid at 737. 95 Mr Petty drew attention to the scrutiny by an administrator upon matters that went beyond a mere slip rule. This, he submitted, was inconsistent with the role of a judge or arbitrator. 96 Mr Petty submitted in relation to subparagraph (e) of the definition of Australian Court that the words hear, receive and examine evidence connote a formal process of receiving evidence in a curial type way and, ordinarily, upon oath. 97 He submitted that the medical assessor was not an Australian Court and that the process of assessment was not a proceeding. 98 Mr Petty put that s 61(3) evinced an intention that the medical assessor be available for full cross-examination in respect of matters the subject of non-conclusive certificates. This intention, he put, supplanted any more restrictive role purported to follow from Hennessy. 99 In relation to s 130 Mr Petty, correctly in my view, excluded consideration of the exceptional class of documents that ought to be protected irrespective of their particular content. He submitted that any balancing exercise should come down on the side of disclosure. He put that there was a compelling public interest in the proceedings being transparent and drew attention to the Guidelines in ch 9.7 which say that all information which is before the assessor should be shared between the parties. He drew attention to Judge Sidis's comment on this point. 100 In an exchange with the Bench it emerged that there was nothing of consequence for present purposes in the report of the medical assessor which could be said to be relevant solely to the conclusive certificates. Disposition 101 It is convenient to say at the outset that I am of the opinion that the claim of privilege is not made out and that the appeal should be dismissed. I should explain why I hold that view. 102 Section 129 extends immunity to the reasons for a "decision" including deliberation thereon. Unless there is such a decision there is nothing for the section to operate upon. 103 Whilst it may be otherwise in respect of the conclusive certificates, in my view, the medical assessor has not made a decision in respect of the other matters certified. 104 Those non-conclusive certificates are to be characterised in terms of s 61(3) as evidence, being neither conclusive nor prima facie evidence. Such evidence is to be available to the decision maker being either the presiding officer of a court or a claims assessor. 105 In the context of s 129 a "decision" is not merely an intermediate mental process but reflects a determination or judgment of a substantive or procedural issue. The cases to which Mr Gageler points as reflecting the common law concepts adopted in the legislation all deal with deliberations of that kind. 106 In Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 Mason CJ at 335 observed that the word "decision" had a number of potential meanings. He continued: "As Deane J noted in Director-General of Social Services v Chaney [(1980) 47 FLR 80 at 100], in the context of judicial or administrative proceedings it ordinarily refers to an announced or published ruling or adjudication. In such a context, the word may signify a determination of any question of substance or procedure or, more narrowly, a determination effectively resolving an actual substantive issue. Even if it has that more limited meaning, the word can refer to a determination whether final or intermediate or, more narrowly again, a determination which effectively disposes of the matter in hand." 107 There being no "decision" upon which it can operate, s 129 affords no assistance to the appellants in respect of the documents for which privilege is sought. 108 Although the above consideration disposes of the claim based on s 129 I should also deal with the specific ways in which Mr Gageler sought to engage that section. 109 Mr Gageler first relied in relation to s 129 upon subs 1(b) on the basis that the medical assessor was an arbitrator to whom a dispute had been submitted for arbitration. As appears later [115] I do not consider the medical assessor to be an arbitrator but for the moment I focus on the submission to arbitration. 110 Mr Gageler accepted that arbitration involved the making of a final determination. 111 Section 61(3) of the Act [28] provides that a non-conclusive certificate "is evidence (but not conclusive evidence) as to the matters certified". Further that situation applied "in any court proceedings or in any assessment by a claims assessor in respect of the claim concerned". It is to be noted that the certificate is not even given the status of prima facie evidence. 112 In my opinion such a situation excludes there being a determination by the medical assessor. 113 Accordingly, reliance on subs 1(b) fails. 114 Mr Gageler next relied upon subs 1(a) on the basis that the medical assessor was a judge in an Australian proceedings. 115 If the procedure carried out by the medical assessor was "a proceeding in an Australian court" the medical assessor would, in relation to that proceeding, be a judge as defined in the Dictionary [21]. 116 Two questions arise. Was the procedure conducted by the medical assessor leading to the non-conclusive certificate a "proceeding" within the meaning of subs 1(a)? Was that proceeding in "an Australian court"? It is convenient to deal with the second question first. 117 "An Australian court" is defined [21]. Mr Gageler relied upon para (d). However, the medical assessor is not a judge or a justice. Clearly, in context, the extended meaning of judge in the Dictionary is not intended to be incorporated here. He is not an arbitrator under an Australian law. (See Hennessy at 349; Russell on Arbitration 19 ed 110,111). 118 I should note that I accept Mr Petty's submission that Lamb and Sutcliffe [92] exclude an argument that in so far as the medical assessor had a duty to act fairly (as to which see [123] to [129]) he was to be regarded as an arbitrator. 119 Mr Gageler then relied upon para (e). The meaning of this provision is somewhat obscure. However Mr Gageler, in my view correctly, accepted that the person or body would not be one whose role was purely investigatory. 120 It would take very clear words indeed to indicate that the Parliament had intended that "an Australian court" could include a person or body that was not independent of executive or administrative oversight in decision-making and was not bound by rules of procedural fairness (see Ex parte Walsh and Johnson; In Re Yates (1925) 37 CLR 36 per Isaacs J at 93). There are no such words in the Evidence Act 1995. 121 Whilst the Guidelines [35] make the procedures to be followed by the medical assessor, "subject to the rules of procedural fairness" (para 8.1) and provide that assessors not consider documents not shared between the parties (para 9.7), that requirement is brought to an abrupt halt at the draft certificate and report stage by the specific, and therefore overriding, provisions of paragraphs 10.10 and following [36]. 122 Once the draft copy of the report and certificate is provided to the Proper Officer, "an assessor may, at his or her own motion or at the request of an officer of MAS, correct or request the correction of an error in the draft report or certificate". (para 10.11). 123 Examples of the errors which may be corrected include not following the prescribed methods of assessment. 124 As earlier mentioned [60] questions of opinion can arise on this issue. Presumably it would be an unqualified officer of the MAS who would conclude that the medical assessor had not correctly applied the Guidelines. As Mr Gageler conceded different results could follow from the application of different minds. 125 There is no provision for the person assessed to have further input before the issue of the final report and certificate. Such a procedure is well outside the rules of procedural fairness and a person bound by statute to act in this way is not acting independently or in accordance with such rules. It is relevant to point out that in Herijanto Gaudron J observed that the purpose of the immunity for the decision making process is to "ensure freedom of thought and independent judgment" [69]. 126 I should make it clear that I am not concerned with any question as to procedural validity or the appropriateness of the methods adopted by the scheme. My task is to consider the issues before the Court having regard to the features of the relevant procedures. 127 A medical assessor acting in accordance with the Guidelines is not acting independently or in accordance with rules of procedural fairness. Accordingly, he is not a person falling within para (e). 128 Thus the procedures followed by the medical assessor were not "proceedings in an Australian court". 129 I should observe that if Mr Petty meant to concede in a general way that the medical assessor was acting judicially [93], rather than that he was acting within the terms of the relevant statute, I do not agree for the reasons I have given. 130 Mr Petty further submitted that para (e) was not applicable on the basis that the expression "hear, receive and examine evidence….connotes the formal process of receiving evidence in a curial type way and ordinarily …..on oath". 131 In Epeabaka v Minister for Immigration and Multicultural Affairs (1997) 150 ALR 397 Finklestein J accepted that the Refugee Review Tribunal fell within para (e), albeit its proceedings were not adversarial and "may best be described as inquisitorial". Whilst not bound by the rules of evidence the Tribunal was required by the Migration Act 1958 (Cth) to provide a mechanism of review that is, amongst other things, "fair". 132 Significantly, the Tribunal has the power to take evidence and can administer an oath or take an affirmation for that purpose. The Tribunal can receive statutory declarations in relation to any fact it is to consider and also receive written arguments. 133 There are no similar powers conferred by the Guidelines, however, Ch 8 of the Guidelines [35] clearly contemplates that what is described as "evidence" will be heard, received and examined. 134 The Guidelines are an "Australian law" and, on one approach, it can be said that the medical assessor is authorised by that law to hear, receive and examine evidence. 135 It does not follow that such an approach necessarily satisfies the requirements of para (e). I do not need to reach a conclusion on this aspect and prefer to leave the question until a case in which it needs to be resolved. 136 It is apparent from the terms of s 129 that the "proceedings" referred to are contemplated to be proceedings capable of producing a decision to which the section can apply. As discussed above the procedure conducted by the medical assessor was not one, as to the non-conclusive certificates, which could produce a decision and, therefore, not one being a procedure amounting to a "proceedings" to which the section applies. 137 Were it not for the inclusion in the definition of an Australian court of para (e) I would be of the view that the procedure did not have the characteristics, apart from the matter last dealt with, to be a "proceeding". However, para (e) much widens the type of body and person that could be considered as a court within the phrase " an Australian court". It is, I think, arguable that that extension also extends the meaning which should be given to "proceedings" in s 129. It is not necessary for me to reach a concluded view on this aspect and I prefer to leave the question until a case in which it needs to be resolved. 138 I should also note that Judge Sidis took the view that the Guidelines themselves obliged the appellants to provide the draft report and certificates to the plaintiff. On that basis questions of privilege do not arise. The appellants opposed that view and I think, as a matter of construction of the Guidelines, that is the better view although the contrary is certainly arguable. 139 For the above alternative reasons I do not consider that the claimant's reliance upon s 129 is soundly based. 140 The view I have taken as to the non application of s 129 leaves open the corresponding common law provisions. However, I do not consider that they assist the claimants. 141 The medical assessor did not, as, for example, the Medical Board was meant to do in Hennessy, make a conclusive determination. Nor did he as in the Duke of Buccleuch or O'Connor make a decision. He was not entitled to the benefit of the principles discussed in those cases, in short, because he had not made a determination. Further, he was not an arbitrator or other independent decision maker. 142 I can deal with s 130 quite shortly. I agree with Mr Petty's submission that there appears to be no proper basis for a claim based on the class of the documents concerned. Mr Gageler has not advanced such a claim nor has he put any matters that would outweigh the general interest that all relevant admissible evidence should be admitted in order to achieve justice in this case. 143 At a more specific level it would seem to me desirable that there be available to the plaintiff documents apparently related to input into the evidence of the medical assessor made by an unqualified officer of the MAS. I find myself hard pressed to think of any sensible countervailing considerations. 144 The claimants have not established a proper basis for the application of s 130 or the corresponding common law provisions. 145 For these reasons I hold the view I have earlier expressed. Proposed Orders 146 I propose the following orders: 1. Leave to Appeal granted. 2. Notice of Appeal to be filed within seven days. 3. Appeal dismissed. 4. Appellants to pay first respondent's costs of the appeal. 5. Second respondent to pay own costs of the appeal. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.