Reported Decision : 68 NSWLR 266 New South Wales Supreme Court CITATION : Allianz Australia Insurance Limited v Crazzi and Others [2006] NSWSC 1090 This decision has been amended. Please see the end of the judgment for a list of the amendments. HEARING DATE(S) : 29 August 2006 JUDGMENT DATE : 18 October 2006 JUDGMENT OF : Johnson J at 1 DECISION : 1. Summons dismissed; 2. Plaintiff to pay the costs of the First Defendant; 3. No order as to the costs of the Second and Third Defendants. CATCHWORDS : ADMINISTRATIVE LAW - claim for prerogative and declaratory relief - claims assessment system under Motor Accident Compensation Act 1999 - relationships between claims assessment and medical assessment provisions in Act - assessment conference before assessor - insurer admits liability - claim for interest deferred by assessor at suggestion of insurer - assessor purports to issue s.94 certificate of damages and statement of reasons without hearing and determining claim for interest - - whether denial of procedural fairness and jurisdictional error - claimant applies to assessor to consider claim for interest and issue s.94 certificate and reasons - whether assessor functus officio - power of Principal Claims Assessor to rectify "obvious error" under s.94(6) - meaning of "obvious error" - status of guidelines issued under Act - insurer seeks further medical assessment of claimant under s.62 - whether assessor may complete exercise of jurisdiction and issue s.94 certificate - if so, whether assessor bound to have regard to factual circumstances at time when certificate and reasons issue - assessor issues s.94 certificate and reasons - claimant accepts damages under s.95(2)(b) as contained in s.94 certificate and reasons - claim for prerogative and declaratory relief by insurer contending that s.94 certificate and reasons are null and void - no basis for relief established - relief to be refused, in any event, on discretionary grounds Motor Accident Compensation Act 1999 Motor Accident Insurance Act 1994 (Qld) Interpretation Act 1987 Administrative Decisions Tribunal Act 1997 (NSW) Administrative Appeals Tribunal Act 1975 (Cth) LEGISLATION CITED : Probation and Parole Act 1983 Commercial Arbitration Act 1984 Workplace Injury Management and Workers Compensation Act 1998 Migration Act 1958 (Cth) Supreme Court Act 1970 Aboriginal Land Rights (Northern Territory) Act 1976 (Cth) R v Australian Broadcasting Tribunal; Ex part Hardiman (1980) 144 CLR 13 Longhurst v Hunt [2004] NSWCA 91 Zurich Australian Insurance Limited v Motor Accidents Authority of NSW [2006] NSWSC 845 Richards v Richards [2006] NSWSC 140 Lee v Yang [2006] NSWCA 214 NRMA Insurance Limited v Motor Accidents Authority of NSW (2004) 61 NSWLR 264 Collector of Customs v Agfa-Gevaert Pty Limited (1995-1996) 186 CLR 389 State of NSW v Macquarie Bank Ltd (1992) 30 NSWLR 307 Coleman v Gray (1994) 55 FCR 412 Hodgson v Crane (2002) 55 NSWLR 199 Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597 Autodesk Inc v Dyason [No. 2] (1992-1993) 176 CLR 300 De L v Director-General, NSW Department of Community Services [No. 2] [1997] 190 CLR 207 DJL v Central Authority (2000) 201 CLR 226 Lunn v The Cardiff Coal Company (No. 2) [2003] NSWSC 25 Standard Commodities Pty Limited v Society Socinter department Centragel [2005] NSWSC 493 NSW Insurance Ministerial Corporation v Elkins (1998) 45 NSWLR 8 L Shaddock & Associates Pty Limited v Parramatta City Council [No. 2] (1983) 151 CLR 590 Gould v Vaggelas (1983-1985) 157 CLR 271 Storey & Keers Pty Limited v Johnstone (1987) 9 NSWLR 446 Elyard Corporation Pty Limited v DDB Needham Sydney Pty Limited (1995) 61 FCR 385 Sakr v Mercantile Mutual Insurance [2000] NSWCA 266 Roads and Traffic Authority v Palmer (No. 2) [2005] NSWCA 140 J Aron Corporation v Newmont Yandal Operations [2006] NSWSC 849 Abigroup Limited v Avignano (1992) 39 FCR 74 Bonnici v Ku-Ring-Gai Municipal Council [2001] NSWSC 1124 PM Sulcs & Associates Pty Limited v Daihatsu Australia Pty Limited [2001] NSWSC 798 CASES CITED : Firearm Distributors Pty Limited v Carson (2001) 2 QdR 26 Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476 Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 78 ALJR 992 Hazim v Secretary, Department of Family and Community Services (2002) 68 ALD 39 Johnson v Veterans' Review Board (2005) 41 AAR 120 Riley v Parole Board of NSW (1985) 3 NSWLR 606 Larkin v Parole Board (1987) 10 NSWLR 57 Promenade Investments Pty Limited v State of New South Wales (1992) 26 NSWLR 203 Merza v Registrar of the Workers Compensation Commission [2006] NSWSC 939 Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 Chandler v Alberta Association of Architects (1989) 2 SCR 848 Jadwan Pty Limited v Secretary, Department of Health and Aged Care (2003) 145 FCR 1 Von Lieven v Stewart (1990) 21 NSWLR 52 Craig v South Australia (1994-1995) 184 CLR 163 Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 Brodyn Pty Limited v Davenport (2004) 61 NSWLR 421 French v Sydney Turf Club Ltd (No. 2) [2003] NSWADTAP 54 Ainsworth v Criminal Justice Commission (1991-1992) 175 CLR 564 Houssein v Under Secretary Department of Industrial Relations (1982) 148 CLR 88 Hornsby Shire Council v Porter (1990) 19 NSWLR 716 Minister for Aboriginal Affairs v Peko-Wallsend Limited (1985-1986) 162 CLR 24 Ambulance Service of NSW v Daniel [2004] NSWCA 406 R v Ross-Jones; Ex parte Green (1984) 156 CLR 185 Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82 The King v Commonwealth Court of Conciliation and Arbitration; Ex parte Ozone Theatres (Aust) Limited (1949) 78 CLR 389 Zuanic v Gyro-Tech (Australia) Pty Ltd (In Liquidation) [2006] NSWSC 738 Peko-Wallsend Limited v Minister for Aboriginal Affairs (1985) 5 FCR 532 Tepko Pty Limited v Water Board (2001) 206 CLR 1 Allianz Australia Insurance Limited (Plaintiff) PARTIES : Franco Crazzi (First Defendant) Motor Accidents Authority of New South Wales (Second Defendant) Mark Joseph Flynn (Third Defendant) FILE NUMBER(S) : SC 11929/2006 Mr A Robertson SC; Mr W Fitzsimmons (Plaintiff) COUNSEL : Mr GR Petty SC; Mr DJ Hooke (First Defendant) Mr MA Robinson (Second Defendant) Submitting appearance (Third Defendant) Ferguson Lawyers (Plaintiff) SOLICITORS : Beilby Poulden Costello (First Defendant) Robert Dawson - MAA (Second and Third Defendants) LOWER COURT DATE OF DECISION : --- LOWER COURT MEDIUM NEUTRAL CITATION : --- IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION Johnson J 18 October 2006 11929/06 Allianz Australia Insurance Limited v Franco Crazzi and Others JUDGMENT 1 JOHNSON J: By Summons filed on 28 April 2006, Allianz Australia Insurance Limited ("Allianz") seeks prerogative and declaratory relief with respect to a certificate dated 23 March 2006 issued in favour of Franco Crazzi, the First Defendant, by the Third Defendant, Mark Joseph Flynn, in his capacity as an assessor for the Second Defendant, the Motor Accidents Authority of New South Wales ("MAA") under s.94 Motor Accident Compensation Act 1999 ("MAC Act"). 2 Allianz submits that the certificate is invalid and void, and ought be set aside on and from the date when it was issued. Allianz contends that an assessment of damages made in favour of Mr Crazzi on 23 March 2006 pursuant to s.94 MAC Act should likewise be declared invalid and void, and set aside on and from the date when it was made. An Overview of the Case 3 On 3 July 2001, Mr Crazzi was injured in a motor vehicle accident. He brought a claim for compensation under the New South Wales statutory scheme. The insurer, Allianz, admitted liability. An assessment hearing was scheduled before a statutory assessor. Allianz applied for the hearing to be adjourned for the purpose of further medical assessment of Mr Crazzi. The assessor declined to adjourn the matter and the hearing proceeded. At the suggestion of counsel for Allianz during the hearing, the assessor deferred Mr Crazzi's claim for interest until the other heads of damages had been assessed. However, the assessor overlooked this aspect and proceeded, in due course, to issue a statutory certificate awarding damages and costs to Mr Crazzi. Under the statutory scheme, Mr Crazzi had 21 days to accept the assessed figure, otherwise he would have to take his chances by way of court proceedings with a costs penalty if he did not do better than the sum contained in the certificate. The assessor was reminded that the claim for interest was outstanding. The 21-day period passed whilst the parties debated in correspondence what should be done. 4 The assessor accepted that he had fallen into jurisdictional error and that he could issue a certificate after determining the interest claim. Allianz said he could not do this but, even if he could, the step should not be taken until after any further medical assessment was complete. However, the assessor issued a certificate after considering the interest claim. Mr Crazzi accepted the assessment in this certificate within the 21-day period. Allianz now challenges the issue of the second certificate. The Present Hearing 5 At the hearing of the Summons, Mr A Robertson SC and Mr WM Fitzsimmons appeared for Allianz. Mr GR Petty SC and Mr DJ Hooke appeared for Mr Crazzi. Despite the MAA filing a submitting appearance, Mr MA Robinson of counsel sought leave to appear for the MAA pursuant to Rule 6.11(2) Uniform Civil Procedure Rules to make written and oral submissions on the powers and procedures of the MAA in accordance with the principles in R v Australian Broadcasting Tribunal; Ex part Hardiman (1980) 144 CLR 13 at 35-36. Given the nature of the issues raised in the proceedings, I granted Mr Robinson leave to make limited submissions on behalf of the MAA. It was common ground that a number of the issues raised in the present proceedings are novel and have significance with respect to the functions of assessors under the MAC Act. I note that a submitting appearance was filed on behalf of Assessor Flynn. 6 The issues falling for determination in these proceedings include the following: (a) whether it is open to an assessor under the MAC Act, who has purported to issue a s.94 certificate and statement of reasons in circumstances involving jurisdictional error, to remedy the defect by completing the exercise of jurisdiction and issuing a certificate and statement of reasons; (b) the proper construction of s.94(6) MAC Act and whether the power in the Principal Claims Assessor to correct an "obvious error" under s.94(6) is confined to errors apparent on the face of the s.94 certificate and statement of reasons; (c) whether the presence of s.94(6) in the MAC Act operates, by negative implication, to exclude the self-help remedy which might otherwise have been available to an assessor who purports to issue a certificate and statement of reasons in circumstances involving jurisdictional error; (d) whether, in the event that an assessor is able to remedy the matter, after jurisdictional error, by issuing a s.94 certificate and statement of reasons, he or she is bound to have regard to the facts and circumstances as they stand at the time when the remedial certificate and statement of reasons issues; (e) the interrelationship between the medical assessment provisions and claims assessment provisions within the MAC Act and, in particular, whether a claims assessor ought defer an assessment conference or hearing, and the issue of a s.94 certificate and statement of reasons, whilst application is on foot (or approval has been given) for further medical assessment of the claimant. The Compensation Scheme under the MAC Act 7 Before turning to the facts of this case, it is appropriate to place the matter in its statutory context. Some General Features of the Statutory Scheme 8 The MAC Act took effect in respect of motor accidents which occurred after 4 October 1999. There is an elaborate objects clause in s.5: " Objects of Act (1) The objects of this Act are as follows: (a) to encourage early and appropriate treatment and rehabilitation to achieve optimum recovery from injuries sustained in motor accidents, and to provide appropriately for the future needs of those with ongoing disabilities, (b) to provide compensation for compensable injuries sustained in motor accidents, and to encourage the early resolution of compensation claims, (c) to promote competition in the setting of premiums for third-party policies, and to provide the Authority with a prudential role to ensure against market failure, (d) to keep premiums affordable, recognising that third-party bodily insurance is compulsory for all owners of motor vehicles registered in New South Wales, (e) to keep premiums affordable, in particular, by limiting the amount of compensation payable for non-economic loss in cases of relatively minor injuries, while preserving principles of full compensation for those with severe injuries involving ongoing impairment and disabilities, (f) to ensure that insurers charge premiums that fully fund their anticipated liability, (g) to deter fraud in connection with compulsory third-party insurance. (2) It must be acknowledged in the application and administration of this Act: (a) that participants in the scheme under this Act have shared and integrated roles with the overall aim of benefiting all members of the motoring public by keeping the overall costs of the scheme within reasonable bounds so as to keep premiums affordable, and (b) that the law (both the enacted law and the common law) relating to the assessment of damages in claims made under this 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, and (c) that: (i) the premium pool from which each insurer pays claims consists at any given time of a finite amount of money, and (ii) insurers are obliged under this Act to charge premiums that will fully fund their anticipated liability, and (iii) the preparation of fully funded premiums requires a large measure of stability and predictability regarding the likely future number and cost of claims arising under policies sold once the premium is in place, and (iv) the stability and predictability referred to in subparagraph (iii) require consistent and stable application of the law, and (d) that insurers, as receivers of public money that is compulsorily levied, should account for their profit margins, and their records should be available to the Authority to ensure that accountability." It has been observed that one of the purposes of the MAC Act is to contain costs in the motor accident field in relation to premiums payable under the relevant statutory scheme: Longhurst v Hunt [2004] NSWCA 91 at paragraphs 8, 68-72. 9 Section 6 MAC Act makes express provision for a purposive construction to be given to provisions of the Act: " Interpretation and application of Act by reference to objects (1) In the interpretation of a provision of this Act or the regulations, a construction that would promote the objects of this Act or the provision is to be preferred to a construction that would not promote those objects. (2) In the exercise of a discretion conferred by a provision of this Act or the regulations, the person exercising the discretion must do so in the way that would best promote the objects of this Act or of the provision concerned." A purposive construction was given to s.133(3) MAC Act (which restricts damages for non-economic loss) by reference to the statutory objects in ss.5(1)(e), 5(2)(a), 5(2)(b) and 6 MAC Act: Longhurst v Hunt at paragraph 69. 10 In Zurich Australian Insurance Limited v Motor Accidents Authority of NSW [2006] NSWSC 845, Hoeben J provided a helpful summary of the legislative scheme under the MAC Act at paragraphs 22-26: "22 An important feature of the Act is that it restricted access to damages for non-economic loss (ss131-134). Non-economic loss would not be awarded unless the degree of permanent impairment of the injured person was greater than 10% whole person impairment (s131). That assessment was to be made in accordance with the medical guidelines issues by the Authority. Where injuries were assessed at greater than 10% whole of person permanent impairment, common law principles in relation to the assessment of damages for non-economic loss would apply although s134 sets a maximum indexed amount. 23 The Act introduced a new system of medical assessments (ss57-65) by the Medical Assessment Service (MAS). Where there was a dispute as to the level of permanent impairment, that dispute was referred to and determined by a medical assessor in accordance with the provisions of the Act. Those medical assessors must issue a certificate in relation to their finding on the matter referred. A Court's capacity to review, reject or substitute such a certificate was limited (s61(4)). The medical assessor's decision as to permanent impairment was binding on the parties. 24 The Act created a Claims Assessment and Resolution Service (CARS) (ss90-95). CARS dealt with liability and damages disputes. Like the approach to damages for non-economic loss, these provisions were a significant departure from previous legislation relating to motor accidents in that this process of assessment was administrative and not judicial. 25 Assessors are appointed by the Authority but are not subject to the control or direction of the Authority in relation to their decisions (s105). An assessor's decision on liability is not binding but an assessment on quantum is binding on the insurer if the insurer accepts that liability and also on the claimant if the claimant accepts the assessment within twenty one days of the issue of the Certificate of Determination. ( Lee v Yang [2006] NSWCA 214.) The assessors may hold conferences with all relevant parties in attendance and with the relevant experts in attendance or hold separate assessment conferences in private with any of them or, where an assessor is satisfied that sufficient information has been supplied, without holding any assessment conferences or other formal hearing at all (s104). 26 The Act recognised that there would be claims which would be exempted from CARS assessment (s92). Claims which are exempted from CARS assessment are issued with a certificate to enable court proceedings to be commenced thus bypassing the CARS procedure. A further novel feature of the Act was that access to the courts was significantly restricted by comparison with previous legislation in relation to motor accidents." The Claims Assessment System 11 Claims Assessors are officers of the MAA designated as such within the meaning of s.99 MAC Act. They are officers within the Claims Assessment and Resolution Service ("CARS"), which is itself a "unit" of the MAA established pursuant to s.98 MAC Act. 12 Claims assessors have limited civil protection under s.103(1) and are subject to the general control and direction of the Principal Claims Assessor in the exercise of their functions (s.105(3)) but not in relation to the actual making of particular assessments (s.105(2)). 13 Claims assessors have one primary duty - to assess claims referred to the MAA by the claimant or the insurer (s.90) which are then, in turn, referred to the claims assessor by the Principal Claims Assessor pursuant to s.93 MAC Act. The duty is expressed in s.94(1) of the Act. Sections 94 and 95 are of central importance to this case, and are set out hereunder: "94 Assessment of claims (1) The claims assessor is, in respect of a claim referred to the assessor for assessment, to make an assessment of: (a) the issue of liability for the claim (unless the insurer has accepted liability), and (b) the amount of damages for that liability. (2) Such an assessment is to be made having regard to such information as is conveniently available to the claims assessor, even if one or more of the parties to the assessment does not co-operate or ceases to co-operate. (3) The assessment is to specify an amount of damages. (4) The claims assessor must, as soon as practicable, after an assessment issue the insurer and claimant with a certificate as to the assessment. (5) The claims assessor is to attach a brief statement to the certificate, setting out the assessor's reasons for the assessment. (6) If the Principal Claims Assessor is satisfied that a certificate as to an assessment or a statement attached to the certificate contains an obvious error, the Principal Claims Assessor may issue, or approve of the claims assessor issuing, a replacement certificate or statement to correct the error. 95 Status of assessments (1) An assessment under this Part of the issue of liability for a claim is not binding on any party to the assessment. (2) An assessment under this Part of the amount of damages for liability under a claim is binding on the insurer, and the insurer must pay to the claimant the amount of damages specified in the certificate as to the assessment if: (a) the insurer accepts that liability under the claim, and (b) the claimant accepts that amount of damages in settlement of the claim within 21 days after the certificate of assessment is issued. Note. If the amount of damages is not accepted by the claimant within that period, section 151 makes provision with respect to liability for legal costs incurred after the certificate of assessment was issued. (3) It is a condition of an insurer's licence under Part 7.1 that the insurer complies with this section." 14 In Richards v Richards [2006] NSWSC 140, Malpass AsJ observed, at paragraph 8, that the effect of s.95 MAC Act was to create a "unique concept" whereby, if the requirements of s.95(2)(a) and (b) are satisfied, an assessment of the amount of damages for liability under a claim creates a "deemed offer" which may be accepted by the claimant. 15 In Lee v Yang [2006] NSWCA 214, Giles JA (Hodgson and Ipp JJA agreeing) at paragraphs 26-28, referred to the CARS provisions in Part 4.4 MAC Act, in the context of the stated objects of the Act, including the encouragement of early resolution of claims to compensation for injuries sustained in motor accidents: s.5(1)(b). The process of assessment, including ss.94 and 95, was to be viewed against a background where a costs penalty existed under s.151 MAC Act if the claimant did not accept the amount of damages assessed in settlement of the claim within 21 days after the certificate is issued. 16 The power to make regulations concerning, inter alia, the making of assessments is contained in s.97 MAC Act. While there are no such regulations at present, there are regulations regarding costs assessments: Part 3 of Motor Accidents Compensation Regulation 2005. 17 By s.106(1), claims assessments under Part 4.4 MAC Act (ss.88-106) are "subject to relevant provisions of MAA Claims Assessment Guidelines relating to those assessments". Under s.69(1) MAC Act, the MAA may issue guidelines "with respect to procedures for the assessment of claims under Part 4.4 and associated matters". Guidelines establishing procedures for assessing claims were promulgated in June 2002 and are styled "Claims Assessment Guidelines". These Guidelines may be characterised as delegated legislation, in the same way as the MAA Medical Guidelines under s.44 MAC Act: NRMA Insurance Limited v Motor Accidents Authority of NSW (2004) 61 NSWLR 264 at 267 [10]-[14], 269-270 [26]-[28]. As delegated legislation, the Claims Assessment Guidelines cannot affect the proper construction of the MAC Act or limit rights conferred by the Act; they exist to indicate how relevant assessments are generally carried out: NRMA Insurance Limited at 270 [28]; Pearce and Geddes, Statutory Interpretation in Australia, 6th edn, 2006, at [3.41]; and are subordinate legislation in the nature of regulations: Zurich Australian Insurance Ltd v Motor Accidents Authority of NSW at paragraph 28. The general principles relating to the interpretation of Acts of Parliament are equally applicable to the interpretation of delegated legislation: Collector of Customs v Agfa-Gevaert Pty Limited (1995-1996) 186 CLR 389 at 398. The normal purpose of subordinate legislation is to give effect to the provisions of the parent statute: State of NSW v Macquarie Bank Ltd (1992) 30 NSWLR 307 at 320. Subordinate legislation is typically designed to carry into effect the expressed intention of the legislature in ways incidental to the execution of the statue itself: State of NSW v Macquarie Bank at 321. It is appropriate to look beyond the MAC Act to the Guidelines to ascertain the overall statutory scheme: Coleman v Gray (1994) 55 FCR 412 at 423. 18 A further understanding of the powers and functions of a claims assessor may be derived from Chapters 10 to 17 of the Claims Assessment Guidelines (as they stood prior to 1 May 2006). Of particular relevance for present purposes are Chapters 12, 13, 16 and 17 which provide as follows: "Chapter 12. PRELIMINARY ASSESSMENT 12.1 The Preliminary Assessment arranged in accordance with clause 9.1 above is to be conducted within 15 days of the date of the letter advising the parties of the allocation (or re-allocation in the case of a conflict) of a matter to an assessor. 12.2 At the preliminary assessment, the assessor is to review the file to: 12.2.1 Determine whether the matter is suitable for assessment; and 12.2.2 Determine whether other documentation or information is required as set out in clause 11.9 above; and 12.2.3 Determine the way in which an assessment is to proceed as set out in clause 10.6 above; and 12.2.4 Conduct the preliminary conference. 12.3 The Preliminary Conference may be conducted by way of: 12.3.1 A three-way telephone conversation (teleconference) between the assessor, the claimant (or the claimant's legal representative or agent) and the insurer (or the insurer's legal representative or agent); or 12.3.2 A face to face conference between the assessor, the claimant (or the claimant's legal representative or agent) and the insurer (or the insurer's legal representative or agent). 12.4 If a party is represented, then the legal representative or agent with day to day conduct of the claim must, as far as is practicable be available for the preliminary conference. In the case of an insurer, the claims officer with day to day conduct of the claim must, as far as is practicable be available for the preliminary conference. 12.5 If any party is, without reasonable excuse, unavailable at the time of the preliminary conference then the assessor may conduct the preliminary conference in the absence of the party. 12.6 The assessor must within 10 days of the preliminary conference advise the parties in writing: 12.6.1 Of the way in which the assessment is to proceed under clause 10.6; and 12.6.2 What further documentation or information is required under clause 11.1; and 12.6.3 Of any other decisions made or directions given at the preliminary conference. 12.7 During the course of a preliminary assessment the assessor shall not enquire about the amount of any offers made by either party. An assessor shall not be disqualified from assessing a matter because the assessor becomes aware in any manner of the amount of any offer. Chapter 13. ASSESSMENT CONFERENCE 13.1 Where the assessor notifies the parties of an intention to conduct an assessment conference the parties must advise the assessor and the other party within 10 days of the notification: 13.1.1. Whether or not they will be represented by an agent or legal practitioner and as far as is practicable the name of the legal practitioner or agent; 13.1.2 If an agent is to represent the party, the extent of the agent's authority; 13.1.3 Whether or not an interpreter is required and if so the language; and 13.1.4 The names of any witnesses who the party wishes to call to give evidence. 13.2 The assessor may require the presentation of the respective cases of the parties to be limited to the periods of time that the assessor determines are reasonably necessary for the fair and adequate presentation of the cases. 13.3 The assessor may require the parties to the assessment submit to the assessor and to any other party to the assessment, prior to the assessment conference, a signed statement or statutory declaration detailing the evidence to be given by any witness to be called. 13.4 The assessor shall determine the manner in which evidence is presented at an assessment conference, subject to: 13.4.1 Each party is to be given an opportunity to address the assessor on any issue in dispute and to put to the assessor any questions that the party seeks that the assessor ask or any areas that the party wants the assessor to explore; 13.4.2 The examination of parties and witnesses is by the assessor and questions to other parties or witness may only be put as directed by the assessor; 13.4.3 The assessor may, on the application of a party allow the questioning of a witness by that party's legal representative or agent; 13.4.4 The assessor may question any witness to such extent as the assessor thinks proper in order to elicit information relevant to matter; and 13.4.5 The assessor cannot compel any witness to answer any question put in the conference but may have regard to the failure of a witness to answer a question in the determination of the assessment. 13.5 The assessor may adjourn a conference to any time and place on reasonable grounds, including but not limited to allowing the parties to negotiate a settlement. 13.6 The assessor may conclude the conference to give effect to any agreed settlement reached by the parties. 13.7 During the course of an assessment the assessor shall not enquire about the amount of any offers made by either party. An assessor shall not be disqualified from assessing a matter because the assessor becomes aware in any manner of the amount of any offer. 13.8 A party shall not be entitled to call before an assessor oral evidence of a medical practitioner or other expert without the leave of the assessor. 13.9 An assessor (other than a Senior Assessor) may not take into consideration in respect of the case of each party, reports (excluding reports from treating practitioners) from; 13.9.1 More than one medical expert in any specialty (unless there is a substantial issue as to a matter referred to in section 58(1)(c) or (d) of the Act – in which case 2 medical expert reports in any specialty relevant to the injury concerned may be allowed) and 13.9.2 2 experts in the same field of any other kind. 13.10 An assessor, including a Senior Assessor, may take into account a greater number of experts reports in the matter but should consider: 13.10.1 The objects of the Act; and 13.10.2 Clause 14(1) and (2) of the Motor Accidents Compensation Regulation (No 2) 1999; and 13.10.3 Fairness to both parties. … Chapter 16. CERTIFICATE AND STATEMENT OF REASONS 16.1 Upon completion of the assessment the assessor is to issue a certificate under section 92, 94 or 96. 16.2 A copy of the certificate and any statement of reasons is to be provided to the PCA and each party within 10 days of the conclusion of any assessment conference or in the absence of any assessment conference, within 10 days of the provision by the parties of all information and documentation sought by the assessor at the preliminary conference. 16.3 A certificate under section 92(1)(b), 94 or 96 is to have attached to it a statement of the reasons for the assessment. The statement of reasons is to set out: 16.3.1 The findings on material questions of fact; and 16.3.2 The assessor's understanding of the applicable law; and 16.3.3 A list of any documents tendered or submitted to the assessor at or before the assessment conference but not listed in the application or reply forms; and 16.3.4 A brief description of any oral evidence given; and 16.3.4 [sic] The reasoning processes that lead the Assessor to the conclusions made 16.3.5 In the case of an assessment certificate pursuant to section 94, the assessor must specify an amount of damages and the manner of determining an amount of damages. 16.4 The assessor may at any time issue a certificate in accordance with an agreed settlement, provided the terms of the agreed settlement are reduced to writing, signed by or on behalf of the parties and lodged with the assessor, and the assessor is satisfied that the terms of the agreed settlement are matters upon which the assessor has power to make an assessment. In these circumstances the assessor need not provide a statement of reasons. Chapter 17. CORRECTIONS 17.1 In accordance with section 94(6), if the PCA is satisfied that there is an obvious error in a certificate as to an assessment or in the statement attached to the certificate, the PCA or the assessor may issue a replacement certificate or statement. 17.2 If the certificate or statement of reasons is altered, the altered certificate or statement is taken to be the decision of the assessor or the reasons for the decision. 17.3 Examples of obvious errors in the certificate or statement of reasons are where: 17.3.1 There is an obvious clerical or typographical error in the certificate or statement of reasons, or 17.3.2 There is an error arising from an accidental slip or omission, or 17.3.3 There is a defect of form, or 17.3.4 There is an inconsistency between the decision and the statement of reasons. 17.4 If the certificate or statement of reasons is altered, the PCA must provide the parties with a copy of the altered certificate or statement of reasons within 5 days of the PCA making the alteration." 19 Under s.93 MAC Act, the Principal Claims Assessor is responsible for making arrangements as to the claims assessor who is to assess any particular claim, or class of claims, that are not exempt from assessment. 20 Under the Guidelines, a claims assessor notifies the parties of the way in which the assessment is to proceed. An assessment conference or hearing is usually held where both parties appear to give "evidence" (as referred to in Guideline 13.4). Witnesses for the parties may appear and give evidence. However, only the claims assessor may question witnesses and they cannot be compelled to answer: Guideline 13.4. A party's legal representative or agent may question a witness, but only with leave of the claims assessor. In addition, there are limits to the number of medical expert reports that an assessor may take into account: Guideline 13.9. The Facts 21 As will be seen, there is little or no dispute as to relevant facts. Rather, controversy exists with respect to the legal consequences of certain events. 22 The evidentiary foundation for the following narrative flows almost entirely from the tender bundle ("TB") which accompanied the affidavit of Stephen John Ferguson sworn 15 May 2006, read in Allianz's case. Mr Petty SC read, in Mr Crazzi's case, affidavits of Scott Hall-Johnston sworn 31 May 2006 and 24 August 2006. No deponent was required for cross-examination. A Motor Vehicle Accident on 3 July 2001 23 As at 3 July 2001, Allianz was the third-party insurer for the purposes of the Motor Accident Insurance Act 1994 (Qld) of vehicle registered number 297-CSW (Qld). On 3 July 2001, Mr Crazzi was injured in New South Wales as a result of the negligent driving of that vehicle. 24 On 19 October 2001, Mr Crazzi made a claim for damages pursuant to the MAC Act. On 25 August 2004, Mr Crazzi made application for medical assessment of his whole-person impairment pursuant to Part 3.4 MAC Act. In due course, he was assessed by Dr Peter Jackson, a musculo-skeletal physician and medical assessor under the MAC Act. A Certificate of Determination issued on 28 January 2005 certifying under s.61(9) MAC Act that injuries to Mr Crazzi's right wrist, right shoulder and back caused by the motor accident of 3 July 2001 gave rise to a whole-person impairment which, in total, was greater than 10%. Procedural Steps Leading to Assessment Hearing 25 The MAA referred the matter to Assessor Flynn for assessment pursuant to Part 4.4 MAC Act. On 19 July 2005, a first preliminary conference took place before Assessor Flynn. Allianz admitted liability. Assessor Flynn gave directions under s.100 MAC Act in preparation for hearing of the assessment and directed that a further preliminary conference take place on 1 November 2005. 26 On 8 September 2005, the solicitors for Allianz wrote to Mr Crazzi's solicitors informing them that arrangements had been made for examination of Mr Crazzi by Dr D Lovell, psychiatrist, and Dr T Blue, orthopaedic surgeon. 27 Under cover of letter dated 14 October 2005, Mr Crazzi's solicitors served upon the solicitors for Allianz an outline of submissions with respect to assessment of damages. 28 In a report dated 20 October 2005, Dr Blue reported on his examination of Mr Crazzi on 17 October 2005. Dr Blue concluded that Mr Crazzi suffered from a zero whole-person impairment of his cervical spine and lumbar spine with a similar conclusion with respect to his right wrist. In relation to Mr Crazzi's right shoulder, Dr Blue assessed him as suffering from a 16% impairment of his right upper limb which equated to a 10% whole-person impairment (TB72). 29 The further preliminary conference took place before Assessor Flynn on 1 November 2005. Further directions were given in preparation for hearing and an assessment conference was fixed to take place at 10.00 am on 7 December 2005. Assessor Flynn's report of 7 November 2005 informed the parties of his directions, including the following statement (TB74-75): "The parties should be aware that I do not intend to issue a draft set of reasons and then seek submissions on costs. I intend to issue a final certificate and reasons. If no submissions on costs and disbursements are received my assessment of the claimant's costs will be limited to the professional costs as provided for in the costs regulations. If the insurer seeks to rely on any offers made, the insurer should provide details of those offers in a sealed envelope marked 'Offers - Relevant to Costs' along with the material in direction 2 above." 30 By report dated 8 November 2005, Dr Lovell certified that Mr Crazzi had an eight percent whole-person psychiatric impairment attributable to the accident of 3 July 2001 (TB87). 31 On 17 November 2005, the solicitors for Allianz lodged an application with the MAA for a further medical assessment of Mr Crazzi under s.62 MAC Act. On the same day, Assessor Flynn was informed of this application and a request was made to him to adjourn the general assessment scheduled for 7 December 2005 until the outcome of the application for a further medical assessment was known. The application for further medical assessment was based upon Dr Blue's report. Dr Blue had assigned a 10% whole-person impairment to Mr Crazzi. 32 The purpose of Allianz seeking a further medical assessment of Mr Crazzi under s.62 MAC Act may be found by reference to provisions in the Act imposing impairment thresholds for an award of damages for non-economic loss. As noted earlier in this judgment, s.131 MAC Act provides that no damages may be awarded for non-economic loss unless the degree of permanent impairment of the injured person as a result of injury caused by the motor accident is greater than 10%. 33 Assessor Flynn conducted a further preliminary conference on 1 December 2005. After hearing submissions from the parties, Assessor Flynn refused the insurer's adjournment application and provided written reasons to the parties for this decision which included the following (TB111-112): "I refer to the further preliminary conference conducted in respect of this matter on 1 December 2005. I note the insurer, in light of the lodgement of a MAS 4A sought to adjourn the assessment hearing scheduled in this matter for 7 December 2005. I note the advice of the insurer's solicitor that there is no additional primary material sought to be relied on in support of the MAS Application except for a medico-legal opinion of Dr Tony Blue. I note the Application is strenuously opposed by the claimant. I note it is not the domain of a CARS Assessor to enquire as to the merits of the MAS Application but forever conscious of the fact that this matter has been fixed for hearing for some time and I am obliged under the Guidelines to provide a decision on or before 21 December 2005 I do not believe it is appropriate in the circumstances to vacate the assessment hearing. In my view, there is sufficient material available to me to assess this matter, nor is there sufficient medical information before me that would suggest that there would be any material or more importantly significant change in the medical assessments to warrant an adjournment of the hearing. In my view, a claimant who has been the subject of a MAS Assessment can and should be entitled to a hearing of his case within a reasonable period of time and in this regard I note this matter was fixed for assessment hearing on 7 December 2005 when the matter was listed for directions on 7 November 2005 and more importantly the insurer consented to the matter being fixed at this time. In this regard, I note the insurer has been provided with a report from its own psychiatrist confirming the claimant is suffering an 8% whole person impairment due to injuries arising out of the subject accident." Assessment Hearing on 7 December 2005 34 At the assessment hearing before Assessor Flynn on 7 December 2005, Mr Hooke of counsel appeared for Mr Crazzi and Mr Fitzsimmons of counsel appeared for Allianz. At the commencement of the hearing, Mr Fitzsimmons renewed the adjournment application, which was refused by the Assessor. The hearing proceeded and, at the conclusion of evidence, Assessor Flynn invited the parties to speak to their written submissions. I find that, during the course of submissions, Mr Hooke said words to the following effect: "I also wish to make submissions in relation to a claim for interest." Mr Fitzsimmons replied to the following effect: "That matter should be dealt with when the other matters have been determined. We will then be in a better position to deal with it." Assessor Flynn then said words to the following effect: "What do you say about that Mr Hooke?" Having obtained instructions to consent to this course, Mr Hooke said words to the following effect: "If that is the way the insurer wants to deal with it and you are happy to deal with it that way Mr Assessor, then we are content with that. It can probably be addressed by written submissions when draft reasons are available." According to unchallenged evidence in the form of an affidavit from Mr Crazzi's solicitor, Assessor Flynn nodded his head at this point and said words to the effect of "OK" or "I agree" . The Assessor's Purported Certificate and Reasons of 30 December 2005 35 On 23 December 2005, an unsigned form of certificate and statement of reasons were supplied to the parties, but it is now common ground that these did not constitute a certificate and statement of reasons for the purposes of s.94 MAC Act and ought be disregarded. 36 On 30 December 2005, Assessor Flynn wrote to the parties in the following terms: "A copy of the final Certificate and Statement of Reasons is attached, the original of which has been forwarded to CARS this instant." 37 Accompanying that letter was a purported certificate under s.94 MAC Act assessing the amount of damages in respect of Mr Crazzi's claim in the sum of $786,006.40 and assessing his costs in the sum of $54,196.73 inclusive of GST. The certificate dated 30 December 2005 was accompanied by a statement of reasons for decision purportedly issued under s.94(5) MAC Act, comprising 35 pages. Both were signed by Assessor Flynn. It was also common ground before me that the certificate and statement of reasons dated 30 December 2005 were intended by Assessor Flynn to be, at the time of issue, a certificate and statement issued for the purposes of s.94 MAC Act. The Claim for Interest is Overlooked 38 Both the certificate and statement of reasons of 30 December 2005 were silent on the question of interest. There was no statement that an application for interest remained outstanding. There was no mention of the agreement between counsel for Mr Crazzi and Allianz at the assessment hearing on 7 December 2005, acceded to by Assessor Flynn, that the question of interest could be considered separately and after the determination of other issues involved in the assessment of damages. 39 Mr Crazzi's "claim" was a claim for damages (see definition of "claim" in s.3 MAC Act). As liability had been accepted by Allianz, Assessor Flynn was required to make an assessment of the amount of damages for that liability: s.94(1)(b). The assessment of damages fell to be determined by application of Chapter 5 (ss.122-146) MAC Act. A claim for interest was to be determined in accordance with the limited statutory entitlement to interest in s.137 MAC Act. The proper construction of s.94, and the provisions in Part 5 MAC Act, supports a conclusion that any award of interest under s.137 ought be included in the s.94 certificate and statement of reasons as part of the assessment of damages. However, the parties had invited the Assessor in this case to deal separately and later with the interest application and on 7 December 2005, the Assessor acceded to such an approach. 40 Implicit in this approach was a common understanding and expectation that a s.94 certificate and statement of reasons would not issue until the claim for interest was heard and determined. Accordingly, the 21-day period under s.95(2)(b) MAC Act would not commence to run until the interest claim was determined and a s.94 certificate and reasons had issued. 41 However, the Assessor did not characterise the certificate and statement of reasons of 30 December 2005 as draft documents. On their face, the documents purported to deal to finality with Mr Crazzi's claim for damages and costs. Some Findings in the Reasons of 30 December 2005 42 In the statement of reasons dated 30 December 2005, Assessor Flynn noted that counsel for the insurer had supplied him with the report of Dr Blue dated 20 October 2005 and reports of Dr Derrick Lovell dated 8 November and 5 December 2005 (TB168), and an extract from Dr Blue's report was incorporated in the reasons (TB168-169). Assessor Flynn referred to the submission for Allianz that a further medical assessment of Mr Crazzi ought be undertaken, and that an assessment of damages for non-economic loss under s.131 MAC Act should not occur until that further assessment had been made (TB179-180). 43 It is noteworthy that counsel for Mr Crazzi submitted to Assessor Flynn that the sum of $200,000.00 should be awarded for non-economic loss (TB63). Counsel for Allianz submitted to Assessor Flynn that, subject to a determination of the insurer's application for further medical assessment, Mr Crazzi ought be assessed in respect of non-economic loss in the amount of $120,000.00 (TB116, 179-180). 44 In his statement of reasons of 30 December 2005, Assessor Flynn said with respect to the claim for non-economic loss (TB180): "In my view, the accurate method of assessing the claimant's entitlement for non-economic loss is one where I need to be cognisant of the following matters: - his age; - the nature and extent of his injuries and continuing disabilities; - the nature and extent of his pre-injury activities; - the extent to which these activities have been restricted as a consequence of his injuries. Prior to the accident, the claimant was healthy and was an active fulltime member of the work force who looked forward to continuing on with his active lifestyle for a significant period. I have no reason whatsoever to doubt the validity of these objectives particularly in circumstances where for all intents and purposes he was untouched in relation to any credit issue that might relate to these matters as a consequence of being questioned by very experienced counsel briefed for the insurer during the course of the assessment hearing." 45 The Assessor then referred to principles in Hodgson v Crane (2002) 55 NSWLR 199 concerning assessment of damages for non-economic loss under the MAC Act. Assessor Flynn concluded that part of his statement of reasons relating to non-economic loss in the following way (TB182-183): "In the circumstances I am completely satisfied that the claimant has not sought to embellish his symptoms and he provides a very reliable and truthful version of his disabilities. I have no doubt whatsoever that the claimant has sustained serious injuries which have significantly impacted upon his lifestyle and there is no doubt that by reference to the medical evidence that it is a trauma that is permanent and he will be troubled with an ongoing disability for the balance of his lifetime. Having regard to all of these matters, it is my view that an appropriate award for non-economic loss in the circumstances is $140,000.00." 46 At the conclusion of the statement of reasons, Assessor Flynn summarised his assessment of damages in the following way (TB198): "I assess the claim as follows on the basis set out above: - Non-economic loss $140,000.00 - Past economic loss $150,420.00 - Future economic loss $308,975.00 - Past Treatment expenses (agreed) $ 4,801.40 - Future treatment expenses $ 25,000.00 - Past care expenses or gratuitous assistance $ 56,810.00 - Future care expenses or gratuitous assistance $100,000.00 TOTAL $786,006.40" 47 I note that the allowance of $308,975.00 for future economic loss involves a typographical or calculation error which is apparent from an earlier part of the statement of reasons (TB191). The sum which Assessor Flynn intended to allow for future economic loss was, in fact, $308,524.50. I will return to this aspect later in this judgment. 48 If the certificate issued by Assessor Flynn on 30 December 2005 constituted a "certificate of assessment" for the purposes of ss.94 and 95 MAC Act, then significant consequences would flow if Mr Crazzi did not accept the amount of damages in settlement of his claim within 21 days after the certificate of assessment issued: s.95(2)(b) MAC Act. The Assessor is Reminded of the Claim for Interest 49 Unsurprisingly, given the approach to the claim for interest adopted at the hearing of 7 December 2005, Mr Crazzi's solicitor wrote to Assessor Flynn on 9 January 2006 in the following terms (TB202): "We thank you for your letter of the 30th of December 2005 enclosing Certificate and Reasons. We note that at the conclusion of the assessment conference the claimant flagged an entitlement to interest on the award. Mr Fitzsimmons of Counsel indicated that that issue would be properly dealt with after the reasons had been published. The insurer has made no offer of settlement and we wish to make application for an award of interest. We are currently preparing Submissions and will forward same in the near future. In the event that it is appropriate to make application in another manner would you kindly advise." 50 On 10 January 2006, the solicitors for Allianz wrote to the Medical Assessment Services section of the MAA seeking an early response with respect to the request for further medical assessment of Mr Crazzi "as this matter has proceeded through a CARS General Assessment and the outcome of our application may affect the award" (TB203). 51 On 12 January 2006, the solicitors for Mr Crazzi supplied Assessor Flynn and the solicitors for Allianz with a written submission on interest by way of "application under the slip rule" (TB204-209). The written submission contended as well that an erroneous approach had been taken by the Assessor to calculation of damages for loss of superannuation contributions and for past economic loss to the date of calculation of damages as at 30 December 2005. It was submitted that the assessment of damages for economic loss should be varied to allow the sum of $155,762.00 for past economic loss (including superannuation) and the sum of $315,318.00 for future economic loss (including superannuation), leading to a total sum of damages in the sum of $797,691.40 (TB207). 52 With respect to the claim for interest, counsel for Mr Crazzi submitted (TB207-208): "2.1 The awarding of interest is governed by Section 137 of the Motor Accidents Compensation Act 1999. In relation to the present claim, interest is only available to the Claimant on damages for past economic loss. Interest can only be awarded in the circumstances identified in Section 137(4) of that Act. 2.2 The Insurer has never made any offer to the Claimant in respect of his entitlement to damages. The Insurer did not even offer the Claimant the amount it submitted should be awarded to him. 2.3 It is submitted that in these circumstances the Claimant is entitled to interest on the damages for past economic loss pursuant to Section 137(4)(a)(i) of the Motor Accidents Compensation Act 1999. As to the approach to such a provision see Marsland v Andjelic (No.2) (1993) 32 NSWLR 649 at 651-652 per Kirby P and Meagher JA, esp. at 652B-E. 2.4 The rate at which interest is to be awarded is three quarters of the rate prescribed for the purposes of Section 95 of the Supreme Court Act 1970 in respect of the relevant periods. The subject accident occurred on 3 July 2001 and economic loss was sustained commencing on 5 July 2001. The rate prescribed for the purposes of Section 95 of the Supreme Court Act 1970 was 10% per annum from 5 July 2001 to 28 February 2002 and 9% per annum thereafter. Three quarters of the average rate of that period is 6.85% per annum. The period is almost precisely 4½ years. 2.5 Interest on past economic loss of $155,762 at 6.85% per annum for 4½ years totals $48,014. It is submitted that this amount should be added to the damages previously assessed (in accordance with the submissions above) in the sum of $797,691.40 to produce a total award of $845,705.40." 53 It was then submitted that, allowing for the adjustment and interest referred to in the submission, an appropriate reassessment in relation to Mr Crazzi's costs ought be made in accordance with a schedule annexed to the submission (TB208-209). 54 It was common ground before me that the letter of 9 January 2006 from Mr Crazzi's solicitors did not constitute an acceptance of the amount of damages in the purported certificate of assessment of 30 December 2005 for the purposes of s.95(2)(b) MAC Act. I raised with senior counsel for Allianz and Mr Crazzi the question whether this letter involved an acceptance of the primary calculations contained in the certificate and statement of reasons, subject to the interest application which the parties had agreed ought be considered separately and after the determination of other heads of damages. There is no prescribed form for acceptance of a certificate of assessment for the purposes of s.95(2)(b) MAC Act. 55 It might be thought that a beneficial construction ought be given to the provisions in s.95(2)(b) so that an express or implied acceptance of the assessment of damages as contained in the certificate ought suffice. However, it is not necessary to consider this issue further given that senior counsel for Allianz and Mr Crazzi both contended that the actions of Mr Crazzi's solicitors in the letter of 9 January 2006 and thereafter did not constitute an implied acceptance of the assessment. In any event, it is clear that the written submissions supplied to the Assessor on 12 January 2006 sought to dispute the basis for calculation of aspects of the damages quite apart from the question of interest. 56 I approach the resolution of the present proceedings upon the basis that there was no acceptance by Mr Crazzi for the purposes of s.95(2)(b) MAC Act, of the damages set out in the purported certificate of assessment dated 30 December 2005. Solicitors for Allianz Correspond with the Principal Claims Assessor 57 The response of the solicitors for Allianz to the letter of 9 January 2006 was to write to Assessor Flynn, on 23 January 2006, a letter which included the following (TB210): "We are instructed to put the matter before the Principal Assessor given the provisions of Section 94(6) and we request that you not proceed further until the Principal Assessor has dealt with it." 58 I observe, at this point, that the solicitors for Allianz were not approaching the matter upon the basis that the purported certificate of assessment of 30 December 2005 had, with the passing of the 21-day period, moved beyond reach of Mr Crazzi by way of acceptance under s.95(2)(b) MAC Act. Allianz was approaching the matter upon the basis that there were issues for the Principal Claims Assessor to consider in the exercise of her statutory function under s.94(6) of the Act. I will return, in due course, to consider this provision and its proper construction. 59 By letter dated 24 January 2006, the solicitors for Allianz wrote to Ms Belinda Cassidy, the Principal Claims Assessor, a letter described as a "Section 94(6) application" (TB211-213). Allianz ventilated a number of matters including that Assessor Flynn had no jurisdiction to entertain an application for calculation of superannuation and for the addition of interest and that it was for Mr Crazzi to make a s.94(6) application to the Principal Claims Assessor in that respect. The letter proposed the following approach (TB213): "You might think that the appropriate course for the moment is to direct the Assessor to refer the Claimant's application to you to be dealt with in accordance with Section 94(6). It may be relevant to the exercise of your power under Section 94(6) to note that there has been no acceptance within the meaning of Section 95(2)(b). In the meantime our client's application is for a Section 94(6) amendment of the Certificate of 23 December 2005 as to the amount for past domestic assistance. On page 30 of his Reasons the Assessor has indicated a finding that the appropriate allowance is 'within the vicinity of $40,000' but his assessment of damages includes a figure of $56,810. That is the amount of the Claimant's claim which the Assessor found was 'slightly excessive'. In our client's submission the amount should be reduced to $40,000." Mr Crazzi Referred for Further Medical Assessment 60 On 24 January 2006, Ms Annika Brinsley, Case Manager, Motor Accidents Assessment Service within the MAA, informed the solicitors for Allianz that a determination had been made that Mr Crazzi was eligible for a further medical assessment under s.62(1)(a) MAC Act upon the basis that additional information relevant to the injuries had been provided (TB214). Section 62 provides as follows: "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. (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." 61 On 25 January 2006, the solicitors for Allianz advised the Principal Claims Assessor that the application for a further medical assessment had been granted (TB215). The Principal Claims Assessor Declines to Intervene 62 On 25 January 2006, the Principal Claims Assessor replied to the solicitors for Allianz (TB216-218). It will be remembered that the solicitors for Allianz had made a s.94(6) application on one issue and had proposed that the superannuation and interest matters raised by Mr Crazzi's solicitors ought be approached by way of s.94(6) of the Act. 63 The Principal Claims Assessor observed that the power under s.94(6) to correct an obvious error was discretionary. With respect to the issues raised by Mr Crazzi's solicitors concerning superannuation and interest, the Principal Claims Assessor said (TB216-217): "In relation to the claimant's application for correction of alleged obvious errors in the decision of 30 December 2005 firstly the claimant's solicitors has made the application to the wrong person. The application should have been made to me. Now being seized of the matter I am not satisfied that either of the two alleged errors are in fact obvious errors as follows: 1. Superannuation - this is a matter for interpretation of the relevant section of the Civil Liability Act 2002 and as far as I am aware there has been no decision as to whether the calculation of superannuation is to be made on the gross or net figures. There may be an error however as there are different approaches it is therefore not an obvious error. 2. Interest - Despite learned Counsel for the claimant suggesting it was a matter properly to be left until after the assessment had been issued in my view submissions should have been made at the time of the assessment to enable the assessor to calculate at the same time all heads of damage including interest. There is no provision in the Act or the Guidelines for the piecemeal assessment of a claim. I do not see how it can be an error to fail to calculate something when no submissions were made in connection with it. In addition an obvious error must be obvious to me (as I have the power to correct it) and the error, if there is one, is not obvious as the application of section 137 would require me to stand in the shoes of the assessor." 64 The Principal Claims Assessor provided reasons for declining to take any step under s.94(6). I note that the claim for relief before me does not involve any challenge to the decisions of the Principal Claims Assessor. 65 On 25 January 2006, the solicitors for Allianz were informed of arrangements made for further assessment of Mr Crazzi under s.62(1)(a) MAC Act by Dr Jackson (on 24 March 2006) and by Dr Walden, psychiatrist (on 15 February 2006). 66 On 1 February 2006, the Principal Claims Assessor replied to a letter of the same date from Mr Crazzi's solicitors. The Principal Claims Assessor said with respect to the superannuation and interest issues (TB223): "Superannuation You have put no additional submissions to me as to the 'obvious error' in relation to the calculation of superannuation. For the reasons set out in my letter of 25 January 2006, I am not satisfied there is an obvious error here. There are at least two interpretations of the relevant section of the Civil Liability Act and it is not for me to decide which is right and which is wrong. There may be an error, but it is not an obvious one. Interest I note that the parties apparently agreed that interest should be dealt with at the conclusion of the assessment. However as I have said in my letter of 25 January 2006 there is no provision in the Act or the Guidelines (and you have not pointed me to any) which would allow the assessor to revisit his final decision after the event and calculate interest. It would of course be different if the assessor had issued (as some do) a draft decision to be finalised on submissions as to costs and interest. Is the omission of any calculation for interest an obvious error? In my view it is not. Firstly the assessor did not omit the calculation, he was not asked to make the calculation. Secondly even if the omission was an error it is not in my view an obvious error as section 137 would require me to effectively stand in the shoes of the assessor, hear all the evidence of the case and make a determination of what offers were reasonable or not." 67 In explaining why she declined to exercise discretion and issue a replacement certificate or reasons with respect to the 30 December 2005 documents, the Principal Claims Assessor said (TB223): "The time for acceptance of the 30 December 2005 decision has passed and the claimant has not accepted the decision. Your additional submissions have not addressed this point. The claimant is in my view in a position where, he must now commence Court proceedings and it would serve no purpose me issuing any replacement documents as they are now the subject of a hearing 'de novo'". Solicitors for Allianz Contend s.95(2)(b) Time has Expired 68 On 3 February 2006, the solicitors for Mr Crazzi wrote to the solicitors for Allianz noting that the insurer now adopted the position that the s.94 certificate had not been accepted within 21 days of it being sent, and that this state of affairs had come about because counsel for Allianz had submitted to Assessor Flynn on 7 December 2005 that the question of interest ought be dealt with separately and at a later time (TB228-230): "We note from the writer's discussions with Mr Ferguson on 2 February 2006 that the insurer has now adopted a position in line with the view expressed by the Principal Claims Assessor for the first time on 24 January 2006 on the basis that the documents forwarded by Assessor Flynn by email on 23 and 30 December 2005 constitute one or more certificates pursuant to Section 94 of the Motor Accidents Compensation Act 1999 and the Claimant has not accepted either or both of them within 21 days of them being sent. We are extremely surprised by the insurer's decision to adopt such a position given its conduct in relation to our client's claim. At the assessment hearing in Brisbane on 7 December 2005, the Claimant was represented by Mr Hooke of counsel and the insurer was represented by Mr Fitzsimmons of counsel. At the conclusion of the assessment hearing and before the Assessor reserved his decision, Mr Hooke sought to make a submission in relation to interest pursuant to Section 137 of the Motor Accidents Compensation Act 1999. As you know (but the Assessor was not then informed), the basis of the application was that the insurer had made no offer of settlement to the Claimant in any amount at any time despite having admitted liability without any allegation of contributory negligence and having made submissions to the Assessor that the Claimant should receive damages totalling $381,936. Mr Hooke told the Assessor that he had submissions to make in relation to an award of interest pursuant to Section 137 of the Act and the Assessor asked Mr Fitzsimmons for his response. Mr Fitzsimmons responded that any question of interest should be dealt with after all of the other aspects of the claim had been assessed. In answer to the Assessor, Mr Hooke responded that if that was the approach the insurer preferred to adopt and the Assessor was happy to deal with the matter in that fashion then he on behalf of the Claimant was also content to proceed on that basis. The question of interest was therefore left expressly reserved for later submissions at the request of the insurer and by the agreement of all concerned. … It is unnecessary to repeat here the matters which have been raised in our correspondence with the Principal Claims Assessor, copies of which you have. However, in addition to those matters the insurer is well aware of the Claimant's delicate and parlous psychiatric state. It is also well aware of the damaging effect that stressors such as the conduct of this claim and the financial deprivation flowing from its lack of finalisation have on his condition. In our submission, apart from being wrong in fact and law, the position adopted by the insurer is utterly unconscionable and inconsistent with its conduct described above. In effect, the insurer seeks to take advantage of an error made by either the Assessor or the Principal Claims Assessor or both arising out of circumstances created by the insurer's application that the Assessor defer any consideration of the Claimant's claim for interest until he had determined the claim in relation to other heads of damage. We consider that in addition to the matters we have otherwise raised, the insurer is estopped by its conduct from asserting that either of the documents forwarded by Assessor Flynn by email constitute a Certificate for the purposes of Section 94 of the Motor Accidents Compensation Act 1999 or that the Claimant is in any way precluded from having the Assessor complete his assessment of the claim including the claim for interest." 69 The solicitors for Mr Crazzi stated that the matter would not be left to rest and foreshadowed Supreme Court proceedings for declaratory and prerogative relief (TB230). Further Correspondence with the Principal Claims Assessor 70 On 3 February 2006, the solicitors for Mr Crazzi also wrote to the Principal Claims Assessor stating that it was not accepted that the purported certificate of 30 December 2005 constituted a certificate under s.94 MAC Act. It was contended that, in circumstances where the question of interest had been placed to one side on the application of the insurer and without demur, the issue of a s.94 certificate, without hearing the parties on the interest issue, would constitute "a clear denial of nature justice" and militated against a conclusion that a s.94 certificate had been issued (TB233-234). The Assessor Seeks Further Submissions from the Parties 71 Under cover of an email dated 6 February 2006, Assessor Flynn wrote a letter to the solicitors for Allianz including the following (TB239): "I request that you forward any further submissions you wish to make in respect of the issues raised in that letter and the issue of any appropriate award for interest pursuant to s. 137 of the Act within the next 7 days. Upon receipt of those submissions I will proceed to determine the matter and if appropriate issue any further Certificate pursuant to s. 94 of the Act." 72 In a letter dated 6 February 2006 to the Principal Claims Assessor, the solicitors for Allianz did not dispute that it was counsel for the insurer who suggested at the hearing on 7 December 2005 that "it was premature to deal with interest until there had been a determination of relevant heads of damage". It was observed that counsel had no independent recollection or note of the Assessor's response (TB241). 73 In a letter dated 7 February 2006, the Principal Claims Assessor informed the solicitors for Allianz that, in accordance with s.105(2) MAC Act, she considered that her power did not extend to otherwise interfere with the Assessor's consideration of the claim or any assessment he may make and that there was no power to issue an appropriate direction to him (TB243). 74 By letter dated 13 February 2006, the solicitors for Allianz submitted to Assessor Flynn that the certificate of 23 December 2005 was a valid s.94 certificate and, if it was not, that the certificate of 30 December 2005 was valid. A number of arguments were advanced on behalf of the insurer (TB257-258): "The failure of an assessor to deal with a submission prior to issue of a certificate (and in this case, apart altogether from the alleged failure to deal with the Claimant's submission for interest, you noted in your Reasons but did not rule on the Insurer's submission that you should not proceed to final certificate until the MAS determination had been completed) is within the meaning of Section 94(6) of the Motor Accidents Compensation Act an obvious error and as such is correctable if at all only by the Principal Assessor. The Claimant has in fact already made that application to the Principal Assessor. If you take the view, contrary to the Insurer's submission, that neither of the Certificates of 23 December 2005 or 30 December 2005 was effective, it follows that the assessment is not complete. If that is your view (though it is not the Insurer's view) it follows that in the Insurer's submission you should not issue a final certificate until the MAS process has been completed, noting that contrary to the views you expressed of the likelihood of Dr Blue's opinion being accepted, MAS has in fact accepted the Insurer's Further Assessment Application and has arranged appointments for the Claimant. As to interest, once again on the assumption that you view is that there is no final Section 94 Certificate with the consequence that the assessment is not yet complete, on 6 February 2006 the Insurer made an offer of the amount assessed by you in your Certificate of 23 December 2005, without the non-economic loss element, together with costs. If the assessment is not complete it follows that that offer is an offer for purposes of Section 137 and should be given effect to and the claim for interest should not be allowed." 75 Other arguments were advanced by Allianz as to why there should be no award for interest (TB258). 76 On 14 February 2006, Assessor Flynn wrote to the solicitors for Mr Crazzi and Allianz in the following terms (TB260-261): "In determining the merits of the further Applications of both parties, I advise as follows: I confirm the correct date of the email to the insurer's solicitors being 6 February 2006 and will require the insurer's further submissions on or before 14 February 2006. In the event that there is any difficulty with complying with this time limit, the insurer's solicitors should seek an extension and obtain the consent of the Claimant's solicitors. To deal with the further Applications before me, I will need the benefit of a copy of both parties final Submissions that were tendered at the Assessment hearing as these documents are no longer in my possession in circumstances where the file has been returned to CARS. I would be grateful if the parties could provide a copy of these documents to me by email as soon as possible. I will then be in a position to determine the outstanding issues that are before me. I would appreciate if both parties could promptly respond to this request because no doubt Mr Franko Crazzi, the Claimant, and his medical condition is not enhanced by the fact that these issues remain unresolved." 77 In a letter dated 14 February 2006 to Assessor Flynn, the solicitors for Mr Crazzi addressed a number of matters (which remain presently relevant) which had been raised by the solicitors for Allianz (TB265-267): "The following matters raised by the insurer by way of submissions in its letter to you dated 13 February 2006 require to be addressed: 1. Contrary to the impression created by the insurer's submission, the Claimant does not accept, and never has accepted, that the documents you issued on 23 and 30 December 2005 were certificates for the purpose of Section 94 of the Act for the reasons previously outlined. The matters raised by the Claimant with the Principal Claims Assessor were prophylactic in nature and arose only because of the position adopted by the insurer. 2. The insurer seeks again to cavil with your ruling (already given twice) in relation to the application for a further MAS Assessment. It is submitted that to do so yet again (for the third time and again with nothing additional put) amounts to an abuse of process and ought to be rejected out of hand. 3. The insurer seeks again to make something of informal dis c ussions around the issue of settlement on the day of the assessment hearing. Of course, any offer of settlement made by the Claimant is irrelevant to the considerations under Section 137 of the Act, as is any offer which is not in writing: see Section 137(4)(c) of the Act. However, the fact that by express statement the contents of a submission are translated into an offer does not illustrate or in any sense otherwise mean that the insurer's submission constitutes an offer. The insurer's submission to the contrary is misconceived. However, in any event, your assessment of damages is more than double the amount which the insurer submitted should be awarded. Even if the insurer's submissions should be treated as an offer, it could not rationally be said that such an offer was other than unreasonable in the context of Section 137 of the Act: cf Marsland v Andjelic (No. 2) (1993) 32 NSWLR 649 to which reference was made in the Claimant's submissions dated 9 January 2006. 4. Furthermore, at the time the insurer's submissions were made (if the submissions be an offer) the insurer had available to it all of the evidence which was available to you and its application for an adjournment of the assessment hearing had been refused. At the time of making its offer of 6 February 2006, the insurer not only had all of that material but also the submissions and additional evidence from the assessment hearing and your findings. Its adjournment application had twice been refused. It cannot rationally be submitted that the insurer was lacking the opportunity to make a reasonable assessment of the Claimant's full entitlement to damages at the time either figure was communicated. 5. The insurer's submission that the MAS process was 'incomplete' again ignores your rulings against it in relation to the assessment. It is not open to the insurer to submit that any uncertainty exists because of an application it had made to the MAS for a further assessment in the face of two rulings against it in relation to adjournment of the assessment hearing. In any event, the fallacy of the insurer's submission in this regard is evidenced by its attempt to rely upon a submission as constituting an offer when the very submission upon which it seeks to rely contains an allowance for non-economic loss. It cannot then be said that the insurer was in any way disadvantaged in formulating an offer by any doubt concerning an application for a further MAS assessment. That submission emphasises the unreasonable nature of the insurer's approach to the claim given that the removal of the allowance for non-economic loss from the insurer's submissions would result in a submission totalling just $261,936.00, almost exactly one third of the damages you assessed." 78 By letter dated 1 March 2006, Assessor Flynn wrote to the solicitors for Mr Crazzi and Allianz in the following terms (TB269-271): "Thank you for the parties further submissions which I have duly considered. I remind the parties that I have no jurisdiction to deal with any application to replace the Certificate of Determination dated 30 December 2005 on the grounds of obvious error, see s94(6) of the Act. I am mindful however that there does appear based on the submissions previously received from the parties significant issues in respect of the Assessment that remain in dispute, principally:- · A determination of any entitlement for interest available to the Claimant. · A determination of the insurer's application for an adjournment of the Assessment Hearing pending finalisation of any outstanding MAS application. It seems to me inconceivable given the terms of s94 that the claim for interest could have been reserved at the conclusion of the Assessment Hearing. However, it is true to say that I was invited by both party's Counsel to rule on the issue and the current Decision does not incorporate any ruling, on the point. Similarly, it is true to say that the prior Decision does not incorporate any formal ruling and reasons as to why the insurer's application for adjournment was refused. It is quite true to say that the insurer's Counsel did request a Certificate that incorporated reasons as to why the application was refused. These are both issues that need to be properly determined to enable the assessment process to be fully completed. They are issues that in my view form an integral part of the claim. Similarly, given the provision of s105 they are matters that are beyond the domain of the PCA. I am also inclined to agree with the Claimant's most recent submission that any application in respect of an "obvious error" is premature until I have fully divested myself of the claim before me to be assessed. I note that CARS assessments are undertaken pursuant to s94 and 96 of the Act and under the general rule of Chapter 4, Part 4.4. It is conceivable that I can revisit the Decision of 30 December 2005 if it is on the grounds of invalidity. The relevant principles are as set out in Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597 which essentially provide for a finding of invalidity if: (a) The Decision is so affected by fundamental or jurisdictional errors that it is not a Decision, that is 'the Assessment remains unperformed'; or (b) The Decision could be successfully challenged in a Court of superior jurisdiction and set aside or quashed. Ultimately the issue is 'have I committed a jurisdictional error?' The circumstances of procedural fairness is accepted as grounds of a finding of a 'jurisdictional error'. My initial thought is that my Decision does contain a jurisdictional error and should be revisited. Prior to doing so however, I invite both party's representatives to provide any further submissions they wish to make in respect of the following points: I. Whether or not their client consents to the Decision being revisited. 2. In the event that their client does not consent, reasons as to why. 3. Whether or not they consider the current Decision constitutes a jurisdictional error and if so why. I do not require the parties to canvass any other matter other than those highlighted above. Once I have considered any further submissions either party wishes to make on the points raised l will decide the matter. In the absence of any further submission being received from either party within the next 7 days I will proceed to determine the matter and issue a Decision as soon as possible. I direct the further submissions be forwarded to me by e-mail at the address set out above." 79 On 7 March 2006, the solicitors for Allianz responded to the questions posed by Assessor Flynn in the following way (TB272-273): "The answers to your questions are as follows: 1. No. 2. In the Insurer's submission Bhardwaj does not apply. As the Chief Justice made clear, the general principle that an administrative tribunal may if it 'realises that it has acted hastily and reconsiders the whole matter afresh …' issue a further decision is subject to the legislation under which it operates. As he also points out 'much may depend upon the nature of the power that is being exercised and to the error that has been made. Reference is made to paragraph 7 of the decision of the Chief Justice. There is in the Motor Accident legislation a specific power to correct 'Slip Rule' errors and that resides in the Principal Assessor. Failure to deal with an issue is a Slip Rule matter, and in the Insurer's submission your failure to deal with the questions of interest and the adjournment are Slip Rule questions and not matters going to whether your statutory function has been discharged. In any event you have effectively already ruled on the adjournment question by proceeding in the first place, over the- Insurer's opposition at preliminary conference; and to re-open now would represent 'a change of mind' which as Bhardwaj makes clear you are not entitled to do. In the present case in the Insurer's submission your statutory function clearly has been discharged, and still referring to paragraph 7 of the Judgment of the Chief Justice, there is nothing in the enabling statute to allow you to re-open the matter. Jurisdictional error, as the Chief Justice observes in paragraph 149 of his Judgment, is the doing of something which is not authorised by the Act and does not constitute performance of the Tribunal's duty under the Act. Had the Claimant purported to accept your decision, it would have been susceptible to being set aside on the basis of denial of procedural fairness, in proceeding with the assessment when there was still pending a procedure (the MAS reference) which was legitimately available to the Insurer under the legislation and which had not been completed. That however is not the sort of error which can be corrected in the Insurer's submission by you within the meaning of Bhardwaj . Once again, you have already ruled on that and to re-open now would represent a change of mind on your part. Such an error is correctable only by application to the Court. Had the Claimant purported to accept the award of 23 December 2005 (in the Insurer's submission the award of 30 December 2005 represents a change of mind on your part, which you are not on the Bhardwaj principles entitled to do) it would have been susceptible of being set aside. Since it has not become binding the question is irrelevant." 80 On 10 March 2006, Mr Crazzi's solicitors responded to Assessor Flynn's questions as follows (TB275-276): "Without prejudice to the Claimant's position concerning matters other than the three identified at the foot of page 2 of your letter, his position is as follows: 1 The Claimant consents to the matter being revisited and submits that it should be. 2. Not applicable. 3. If the documents dated 30 December 2005 constitute your certificate under Section 94 of the Motor Accidents Compensation Act 1999, then it is respectfully submitted that a jurisdictional error has been committed. An essential element of the claim and of the matter for determination was the claim for interest and that element of the matter has not been determined. Nor, prior to the documents dated 30 December 2005 being issued, was the Claimant afforded the opportunity to be heard in relation to that element of the matter. It is submitted that no matter which approach of the members of the majority in Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597 is applied, such a decision would be vitiated by such error and, at the very least, open to be revisited. Indeed, the majority reasoning (Gaudron and Gummow JJ with whom McHugh J and Hayne J relevantly agreed) supports the proposition that a decision made in those circumstances would be of no force or effect because it was made in jurisdictional error and, in the context of the present claim, did not constitute an assessment as required by Section 94 of the Act. It follows that in the Claimant's submission it is not only open to you to revisit the matter and determine the claim for interest but that it is necessary for you to do so in order that a valid certificate can be issued for the purposes of Section 94 of the Act. It is submitted that the absence of reasons for refusing the insurer's application for adjournment does not constitute jurisdictional error. It is submitted that it is unnecessary for reasons to be given for a procedural decision of that kind and that, in any event, reasons were given orally both during the telephone application and at the assessment hearing explaining the decision to refuse the applications. The application for adjournment did not involve a question of substantive rights but, rather, a question of procedure. Please let us know if we can be of any further assistance." 81 I pause to observe that, by this time, both Mr Crazzi and Allianz were relying, for different purposes, on the decision of the High Court of Australia in Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597. Mr Crazzi contended that a denial of procedural fairness had occurred (constituting a jurisdictional error) in the issue by Assessor Flynn of a purported s.94 certificate on 30 December 2005 without the application for interest having been heard and determined. Allianz, on the other hand, submitted that no jurisdictional error had occurred and that Assessor Flynn was being invited to have "a change of mind" which was not permissible. According to Allianz, the failure to hear and determine the application for interest could only be dealt with, apart from an application to this Court for relief, by application to the Principal Claims Assessor under s.94(6) MAC Act. Accordingly, Allianz contended that it was not open to Assessor Flynn to take any further step by way of the issue of a s.94 certificate or otherwise with respect to the claim. The Assessor's Certificate and Reasons of 23 March 2006 82 On 23 March 2006, Assessor Flynn wrote to the solicitors for Mr Crazzi and Allianz in the following terms (TB277-278): "I note that the Claimant consents to the matter being revisited on the grounds of 'jurisdictional error' whereas the Insurer does not. Having given due consideration to all the relevant matters I am satisfied that it is appropriate to revisit my prior Decision of 30 December 2005 on the grounds of invalidity. It seems to me that whilstever the prior Reasons do not incorporate reasons dealing with:- · A determination of the Insurer's application for an adjournment of the Assessment Hearing; · A determination of the claim made by the Claimant for interest. The prior Decision is capable of being invalidated on the grounds of 'jurisdictional error'. I am surprised that the Insurer's legal representative persists in submitting that the Decision of 30 December 2005 represents a 'change of mind' on my part which I categorically reject in circumstances where I have emphasised to the parties on more than one occasion that it is not a valid Decision whilstever it was not approved by me nor the subject of a Certificate that was duly signed. For the reasons indicated I have now resolved to proceed to issue an amended Certificate in respect of the matter pursuant to s94(5) of the Act which is enclosed with accompanying Reasons." 83 Accompanying the letter were a s.94 certificate dated 23 March 2006 assessing damages in respect of the claim in the sum of $785,555.90 and the amount of Mr Crazzi's costs in the sum of $54,176.91 and a statement of Assessor Flynn's reasons for decision comprising some 38 pages (TB280-317). The statement of reasons followed the reasons dated 30 December 2005 with the following additions or alterations: (a) Assessor Flynn provided reasons for refusing Allianz's application for adjournment made at the hearing on 7 December 2005 (TB291-294); (b) Assessor Flynn considered the application for interest made by Mr Crazzi, but declined to make such an award (TB291, 294-295); (c) Assessor Flynn amended the sum allowed for future economic loss from $308,975.00, as erroneously calculated in the reasons of 30 December 2005 (TB191) to $308,524.50 (TB308). 84 In declining to award interest, Assessor Flynn had regard to the offer of settlement made by Allianz on 6 February 2006. Assessor Flynn concluded on the interest claim (TB294-295): "In my view it is entirely inappropriate to award interest. In circumstances where I have now resolved that the assessment be revisited and a fresh Certificate issue the insurer has made a prior offer of settlement. Furthermore, I am not privy to what has occurred between the parties and I could not be satisfied that the insurer has acted unreasonably in failing [sic] communicate an offer of settlement until recently. In the circumstances whilstever an offer has been made I do not believe I have the power to make an award for interest but even if I did have such power it would not be appropriate to make an award for interest given the circumstances surrounding this matter and the terms of the award that I have entered. For these reasons I decline to make an award for interest." The Solicitors Correspond Again with the Principal Claims Assessor 85 On 24 March 2006, Mr Crazzi's solicitors applied to the Principal Claims Assessor under s.94(6) MAC Act for the issue of a replacement certificate correcting what was submitted to be an obvious error made by Assessor Flynn in refusing to award interest. Reliance was placed on the fact that the settlement offer of Allianz post-dated the hearing on 7 December 2005 and was said to have overlooked s.137(4)(a)(iv) MAC Act (TB319-321). 86 On 30 March 2006, the Motor Accident Assessment Service of the MAA notified the solicitors for Allianz that an appointment had been made for Mr Crazzi to be examined by Dr Michael Long, general surgeon, in Brisbane on 28 April 2006 (TB322). 87 By letter dated 27 March 2006, the Principal Claims Assessor requested the solicitors for Allianz to provide submissions with respect to the latest s.94(6) application by 7 April 2006 with the view to a review of the file on 13 April 2006 and a subsequent determination of the application (TB323). 88 On 4 April 2006, the solicitors for Mr Crazzi requested the Principal Claims Assessor to make a determination of the s.94(6) application in time to permit Mr Crazzi a period of 21 days from 23 March 2006 (that is, 18 April 2006) in which to determine whether to accept under s.95 the assessment contained in the certificate of 23 March 2006 (TB328). 89 By letter dated 7 April 2006, the solicitors for Allianz indicated to the Principal Claims Assessor that it was not accepted that a valid s.94 certificate was issued on 23 March 2006 and that, in any event, no certificate under s.94(6) MAC Act should issue (TB329). By further letter dated 12 April 2006, the solicitors for Allianz submitted that the Principal Claims Assessor ought not proceed with the s.94(6) application because Mr Crazzi had failed to attend two medical appointments arranged pursuant to the application for further medical assessment. Allianz relied upon s.86(3) and (4) MAC Act in this respect (TB330). 90 On 12 April 2006, the Principal Claims Assessor declined Mr Crazzi's application under s.94(6) MAC Act and stated (TB332-333): " The validity of the 23 March 2006 assessment The insurer's representative indicates in his correspondence that it does not recognise the 23 March 2006 assessment as valid and that it recognises only the 23 December 2005 assessment (or at best the 30 December 2005 assessment). The problem I have with that submission is that no action has been taken by the insurer in relation to any of the assessments and in particular no action has been taken against the assessor in circumstances where the assessor clearly telegraphed his intention to reassess the matter and issue the decision which he did on 23 March 2006. It is now over three months since the initial assessments and I am therefore of the view, in the absence of any Court order, that the assessment before me (being the one of 23 March 2006) is the valid one. Is there an obvious error ? The alleged error is the Assessor's failure to allow interest pursuant to section 137 of the Motor Accidents Compensation Act. The insurer says firstly this is not an obvious error and secondly that there is no entitlement to interest. The term 'obvious error' is not defined in the Act. Clause 17.3 of the Claims Assessment Guidelines give examples of obvious errors as follows: 1. Obvious clerical or typographical errors 2. Accidental slips or omissions 3. Defect of form 4. Inconsistency between the decision and the statement of reasons The above are only examples but it is clear to me that the alleged error in Mr Crazzi's claim is not one of the types of error listed. The failure to allow interest is not an obvious clerical or typographical error, it is not an accidental slip or omission but is a deliberate decision of the assessor not to allow interest for reasons, it is not a defect of form and it is not a case where there is inconsistency between the decision and the reasons. As the alleged error is not one of the four types given as examples can it be characterised as an obvious error? In my view it is not. In my mind, for the alleged error to be obvious, the mistake must be obvious and the correction must also be obvious. For me to accept there is an obvious error in this case, I would need to stand in the shoes of the assessor and effectively re-assess the claim or at least consider all of the evidence, the history of the claim and make a decision on the reasonableness or otherwise of any offers made (or rule on the absence of any offers). To me, that is not an obvious error. The claimant's solicitor appears to be arguing that the assessor made an error of law, that is that he applied the wrong law or wrongly applied the existing law and again in my opinion that is not an obvious error. In the circumstances I am not satisfied there is an obvious error within the meaning of section 94(6) and I decline to issue a replacement certificate or reasons." Mr Crazzi Accepts the Assessment of 23 March 2006 91 By letter dated 12 April 2006, the solicitors for Mr Crazzi informed the solicitors for Allianz of Mr Crazzi's acceptance of the assessment dated 23 March 2006 (TB334). 92 On 28 April 2006, Allianz commenced proceedings in this Court by the filing of a Summons seeking declaratory and other relief. The Broad Positions of Allianz and Mr Crazzi 93 The position of Allianz, as refined by Mr Robertson SC in submissions before me, may be summarised as follows: (a) Assessor Flynn issued a valid s.94 certificate and statement of reasons on 30 December 2005; (b) Assessor Flynn had no power to revisit, after 30 December 2005, the matters considered and determined by him in that certificate; (c) the availability of application under s.94(6) MAC Act to the Principal Claims Assessor in the case of "obvious error" fortifies the conclusion, by way of negative implication, that Assessor Flynn had no power himself to further consider or reconsider the matter - the present case and the statutory scheme in the MAC Act are distinguishable from that considered in Bhardwaj ; (d) insofar as Mr Crazzi complained of denial of procedural fairness in the issue of a certificate on 30 December 2005 without the application for interest being heard and determined, his remedy lay in an application to this Court for relief in the nature of prerogative relief; (e) as Mr Crazzi did not accept the assessment contained in the certificate of 30 December 2005 within 21 days, there was no acceptance for the purpose of s.95(2)(b) MAC Act; (f) Assessor Flynn was not empowered to embark upon the process which he undertook in February and March 2006 culminating in the issue of a further purported s.94 certificate on 23 March 2006; (g) alternatively, if it was open to the Assessor to issue a further s.94 certificate, he was obliged in law to revisit the whole question and consider the factual circumstances as they stood as at 23 March 2006 and thus to take into account the then approved referral for further medical assessment - in failing to take this approach, Assessor Flynn fell into jurisdictional error in issuing a further certificate on 23 March 2006; (h) there is no discretionary reason why Allianz should be refused the relief sought in these proceedings. 94 Mr Crazzi's position, as refined in submissions by Mr Petty SC before me, may be summarised in the following way: (a) the issue of a purported certificate on 30 December 2005 without Mr Crazzi's interest application being heard and determined constituted a denial of procedural fairness and a jurisdictional error; (b) it was open to Assessor Flynn, in accordance with the principles in Bhardwaj , to issue a s.94 certificate on 23 March 2006 as there had not been, as a matter of law, any s.94 certificate issued before then; (c) the s.94 certificate and statement of reasons issued on 23 March 2006 considered the outstanding claim for interest, and submissions made in respect of that claim, and rejected the claim - that was the sole outstanding issue at the conclusion of the hearing on 7 December 2005 - accordingly, the certificate and statement of reasons of 23 March 2006 represented a valid determination of Mr Crazzi's claim; (d) Assessor Flynn had refused the application for an adjournment made by Allianz on 7 December 2005 - it was not necessary in law for the Assessor to provide reasons, or further reasons, for that refusal in the statement of reasons of 23 March 2006; the provision of reasons for the refusal of an adjournment on 7 December 2005 is irrelevant to the present proceedings; (e) Assessor Flynn was not obliged to consider the facts and circumstances of the matter as they stood as at 23 March 2006 (including the application by Allianz for further medical assessment) - all that Assessor Flynn was doing was to give reasons for his decision made on 7 December 2005 to reject the adjournment application of Allianz; (f) the availability of application to the Principal Claims Assessor under s.94(6) MAC Act does not bear upon the determination of the present proceedings - that provision applies where there has been a valid certificate and statement of reasons and, in this case, there was no valid certificate or statement of reasons given the jurisdictional error of Assessor Flynn in purporting to issue a certificate and statement of reasons on 30 December 2005, denying procedural fairness to Mr Crazzi in the process; (g) further, s.94(6) is confined to an "obvious error" on the face of the s.94 certificate and statement of reasons and the failure of the Assessor to hear and determine Mr Crazzi's claim for interest could not be so characterised; (h) Mr Crazzi accepted the assessment contained in the certificate and statement of reasons of 23 March 2006 within 21 days and thus a valid s.95 acceptance had been made by him; (i) even if Allianz could demonstrate a technical basis for relief, it should be refused on discretionary grounds because of the conduct of Allianz surrounding the matter. Principal Findings of Fact 95 At this point, it is appropriate to summarise the principal findings of fact relevant to these proceedings. 96 Mr Crazzi's claim was referred to Assessor Flynn for claims assessment under Part 4.4 MAC Act. On 1 November 2005, the parties agreed to the fixing of an assessment hearing to take place on 7 December 2005. A timetable for further procedural steps was fixed by the Assessor. 97 On 1 December 2005, Allianz applied to adjourn the assessment conference upon the basis of the application for further medical assessment of Mr Crazzi. Assessor Flynn considered the adjournment application and refused it. This was a discretionary determination and it was open to the Assessor to decline to adjourn the assessment conference. There was no provision in the MAC Act or Claims Assessment Guidelines which required an adjournment of an assessment conference in these circumstances. 98 On 7 December 2005, the assessment conference proceeded to hearing before Assessor Flynn. Once again, counsel for Allianz made application to adjourn the hearing upon the basis of the application for further medical assessment. The Assessor refused to adjourn the hearing and proceeded with it. Once again, this was a discretionary determination by the Assessor. It was open to him to refuse to adjourn the assessment conference. There was no statutory provision which required the grant of an adjournment. Although it was not necessary for the Assessor to give written reasons for refusing that adjournment application, the Assessor indicated a willingness to do so at the request of counsel for Allianz. 99 The assessment conference proceeded with evidence being taken and submissions made. The written and oral submissions touched all issues falling for determination with respect to damages and costs except Mr Crazzi's claim for interest. When this issue was addressed by Mr Crazzi's counsel, the claim for interest was deferred on the application of counsel for Allianz until the Assessor had determined Mr Crazzi's claim for damages. Counsel for Mr Crazzi agreed with this approach and the Assessor accepted that the matter would proceed on that basis. 100 The following elements were implicit in this agreement: (a) Mr Crazzi and Allianz would be given an opportunity to be heard on the claim for interest before the Assessor made a determination of that claim; (b) as the authority of the Assessor was to issue a single certificate under s.94 MAC Act determining all aspects of the claim for damages (including interest), no s.94 certificate would issue until after Mr Crazzi's claim for interest had been heard and determined. 101 As a result of oversight, the Assessor did not hear the parties on the claim for interest and, on 30 December 2005, purported to issue a s.94 certificate determining other aspects of the claim. Mr Petty SC submitted and Mr Robertson SC accepted (T29.58, 29 August 2006) that these circumstances constituted a denial of procedural fairness to Mr Crazzi. I agree with these submissions and find that a denial of procedural fairness occurred. 102 Following 30 December 2005, there was a protracted and persistent exchange of correspondence between the parties, including correspondence with the Principal Claims Assessor inviting or resisting the taking of action under s.94(6) MAC Act upon the grounds of "obvious error". For the purpose of resolution of these proceedings, it is not necessary to make detailed findings concerning the issues raised in that correspondence. It is sufficient to note the following: (a) for reasons which I will explain later in this judgment, the Principal Claims Assessor was correct in her characterisation of the term "obvious error" in s.94(6) MAC Act and in declining to act under that section with respect to the issues raised with her by the solicitors for the parties; (b) although the claim for interest had been deferred on the application of Allianz and the error of Assessor Flynn operated in favour of Allianz, there was no expression of willingness by Allianz to facilitate a process whereby a claim for interest could be heard and determined. 103 The 21-day period fixed by s.95(2)(b) MAC Act came and went without the solicitors for Allianz suggesting in correspondence that, in the view of Allianz, the clock had been running since 30 December 2005. It was not until after the Principal Claims Assessor had raised in correspondence the operation of the 21-day period that the solicitors for Allianz formally took the point for the first time in correspondence with Mr Crazzi's solicitors. 104 On 6 February 2006, the solicitors for Allianz made an offer of settlement which they sought to be taken into account in the event that the Assessor proceeded to consider the claim for interest. No such offer of settlement had been made prior to 7 December 2005. 105 When the Assessor sought submissions from the parties concerning the appropriate approach to resolve the problems flowing from the fragmentation of the hearing which had occurred (at Allianz's suggestion), the solicitors for Allianz submitted that it was not open to the Assessor to take any action as he was functus officio and that it was too late for Mr Crazzi to accept the purported s.94 certificate issued on 30 December 2005. As a fallback position, Allianz submitted that, if it was open to the Assessor to consider the matter further, he should take into account the offer of settlement made on 6 February 2006 in considering the claim for interest under s.137 MAC Act and, given the position with respect to further medical assessment, he should not issue a final s.94 certificate until the further medical assessment process had been completed (TB258). 106 In issuing a s.94 certificate on 23 March 2006, Assessor Flynn: (a) considered Mr Crazzi's claim for interest, but refused it having regard, inter alia, to Allianz's offer of 6 February 2006; (b) gave written reasons for his decision refusing to adjourn the assessment conference on 7 December 2005 - although the Assessor was not required by law to give these reasons, he had indicated a willingness to do so and the provision of reasons should be understood in this light; (c) corrected a calculation error which had appeared in his purported statement of reasons of 30 December 2005 - this amendment operating in favour of Allianz given that the award of damages was reduced after the amendment. 107 It will be seen, then, that two of the steps taken by the Assessor in his certificate and statement of reasons of 23 March 2006 operated in favour of Allianz. Firstly, having regard to steps taken by Allianz after 7 December 2005 (the without-prejudice offer of 6 February 2006), the claim for interest in the sum of $49,314.46 was refused. Secondly, the calculation error was corrected in a manner favourable to Allianz. 108 It is clear that the Assessor did not defer the issue of a s.94 certificate until the further medical assessment process was complete. There was no provision in the MAC Act or the Claims Assessment Guidelines which required such an approach. It seems clear that Assessor Flynn approached the task of issuing the certificate and statement of reasons on 23 March 2006 upon the basis that he was confining his attention to the unresolved claim for interest and the promised provision of reasons for refusing an adjournment on 7 December 2005 and that he took the opportunity, as well, to correct the calculation error appearing in his earlier purported statement of reasons. 109 If the assessment conference had proceeded to finality on 7 December 2005 with submissions being made on the claim for interest, then Assessor Flynn would have been in a position, by late December 2005, to issue a s.94 certificate addressing all aspects of Mr Crazzi's claim. Allianz was not in a position, on 7 December 2005, to rely upon any offer of settlement for the purpose of a claim for interest under s.137 MAC Act. But for the submission of counsel for Allianz made on 7 December 2005 that the claim for interest ought be deferred for later consideration and determination, Mr Crazzi would have been in a position, by early 2006, to consider whether or not to accept a s.94 certificate and statement of reasons which had addressed his claim for damages including interest. However, that did not occur because Allianz proposed a fragmentation of the process which has given rise, since then, to significant and protracted dispute between the parties. 110 As a result of that fragmentation, Allianz was in a position to advance, at various times, the following propositions: (a) that the 21-day period for accepting the purported s.94 certificate of 30 December 2005 had expired and that Mr Crazzi must now proceed by way of curial proceedings with the associated risks as to costs under s.151 MAC Act - in order to get a costs order against Allianz in Court proceedings, Mr Crazzi would have to obtain an award of damages at least $157,200.00 greater than the sum contained in the purported certificate of 30 December 2005; (b) alternatively, that, if it was open to the Assessor to consider the claim for interest, that the without-prejudice offer of settlement made by Allianz on 6 February 2006 (after the expiration on 21 January 2006 of the notional 21-day period) ought be taken into account in Allianz's favour in resisting Mr Crazzi's claim for interest in the sum of $49,314.46; (c) that, as a result of fragmentation of the process which occurred at the suggestion of Allianz, the subsequent delay ought operate to the advantage of Allianz by deferring the issue of a s.94 certificate until the further medical assessment process was complete, although this was entirely contrary to the discretionary rulings made by the Assessor on 1 and 7 December 2005 that the assessment conference ought be heard and determined without further delay. 111 A number of these factual findings are significant for determination of Allianz's claim for relief in these proceedings, both with respect to the substance of the claim and relevant discretionary considerations. The Approach to be Taken Where an Issue is Left Outstanding Following the Making of Final Orders by a Court, Tribunal or Administrative Decision Maker 112 From time to time, an issue is left outstanding following the making of final orders by a court, tribunal or administrative decision maker. In the case of a court, there is a power, in certain circumstances, to reopen or set aside an order made before or after entry of orders: Autodesk Inc v Dyason [No. 2] (1992-1993) 176 CLR 300 at 302, 322; De L v Director-General, NSW Department of Community Services [No. 2] [1997] 190 CLR 207 at 215 and DJL v Central Authority (2000) 201 CLR 226 at 240ff. A power to reopen, confined to "extremely rare" or "quite exceptional" circumstances, exists where a trial judge is satisfied that a decision is affected by an obvious error of law so that it is both open and necessary to correct the position: Lunn v The Cardiff Coal Company (No. 2) [2003] NSWSC 25 at paragraphs 3-4; Standard Commodities Pty Limited v Society Socinter department Centragel [2005] NSWSC 493 at paragraphs 7-8. 113 A judge is not functus officio after announcing a verdict and making costs orders if the duties in the case are not otherwise completed: NSW Insurance Ministerial Corporation v Elkins (1998) 45 NSWLR 8 at 12. 114 The slip rule is available as a means of correcting a clerical mistake or an error arising from an accidental slip or omission in a judgment or order or in a certificate: Part 36.17 Uniform Civil Procedure Rules; L Shaddock & Associates Pty Limited v Parramatta City Council [No. 2] (1983) 151 CLR 590 at 594-5; Gould v Vaggelas (1983-1985) 157 CLR 271 at 274-275; Storey & Keers Pty Limited v Johnstone (1987) 9 NSWLR 446 at 449-454; Elyard Corporation Pty Limited v DDB Needham Sydney Pty Limited (1995) 61 FCR 385 at 389-391; Sakr v Mercantile Mutual Insurance [2000] NSWCA 266 at paragraph 47ff; Roads and Traffic Authority v Palmer (No. 2) [2005] NSWCA 140 at paragraphs 23-25; J Aron Corporation v Newmont Yandal Operations [2006] NSWSC 849 at paragraph 57ff. Reference will be made below to a number of these decisions in which the statutory slip rule was applied by courts in circumstances where there was either a failure to argue, or a failure to determine, a claim for interest prior to the making of final orders. 115 From time to time, a court will reserve to the parties liberty to apply. The reservation of liberty to parties to apply to a court is a provision directed essentially to questions of machinery which may arise from the implementation of a court's orders. They include cases where a court may need to supervise the enforcement of orders after they have been made. Orders of this kind relate to enforcement and not to statements of the rights of the parties: Abigroup Limited v Avignano (1992) 39 FCR 74 at 88; Bonnici v Ku-Ring-Gai Municipal Council [2001] NSWSC 1124 at paragraph 165ff. 116 In some cases, a court will give judgment in a specified sum by way of damages plus costs and interest and will reserve for submission (in the absence of agreement) the precise orders to be made in respect of costs and interest: see, for example, PM Sulcs & Associates Pty Limited v Daihatsu Australia Pty Limited [2001] NSWSC 798 at paragraph 1. The court defers the hearing of a claim for interest and the opportunity remains, as part of the court order, for the claim for interest to be heard and determined by the court. In such a case, the mechanism of liberty to apply is not utilised nor is the court exercising the power to reopen or the power to correct a mistake or error under the slip rule. 117 In the case of a tribunal or administrative decision maker, the question whether a decision may be reopened depends, in the first instance, upon the possible application of s.48 Interpretation Act 1987 and, the proper construction of the statutory scheme under which the relevant administrative decision maker operates. Prior to the decision of the High Court in Bhardwaj, there were recognised circumstances in which an administrative decision maker could reopen a decision: see, generally, Campbell, "Revocation and Variation of Administrative Decisions" (1996) 22 Monash ULR 30; Allars, "Perfected Judgments and Inherently Angelical Administrative Decisions: The Powers of Courts and Administrators to Reopen or Reconsider Their Decisions" (2001) 21 Australian Bar Review 60. Section 48 Interpretation Act 1987 118 Section 48 Interpretation Act 1987 is in the following terms: " Exercise of statutory functions (1) If an Act or instrument confers or imposes a function on any person or body, the function may be exercised (or, in the case of a duty, shall be performed) from time to time as occasion requires. (2) If an Act or instrument confers or imposes a function on a particular officer or the holder of a particular office, the function may be exercised (or, in the case of a duty, shall be performed) by the person for the time being occupying or acting in the office concerned." 119 Both Mr Robertson SC and Mr Petty SC submit that s.48 Interpretation Act 1987 has no application to this case so as to permit Assessor Flynn to exercise, from time to time, the power to issue a certificate and statement of reasons under s.94 MAC Act. 120 Mr Robertson SC submits that the power under s.94 is adjudicative in nature, affecting rights or liabilities, so that it can only be exercised once: Firearm Distributors Pty Limited v Carson (2001) 2 QdR 26 at 32 [40]. This construction is fortified, so Allianz submits, by the statutory avenue under s.94(6) to the Principal Claims Assessor in the case of "obvious error". Accordingly, Allianz submits that a contrary intention appears so that s.48 has no application to the s.94 decision-making function: s.5(2) Interpretation Act 1987. 121 Mr Petty SC submits that, where a valid certificate and statement of reasons has been issued under s.94, then an assessor is not empowered to revisit the matter at another time. However, Mr Petty SC submits that this position does not arise where there is denial of procedural fairness constituting jurisdictional error so that, in law, no s.94 certificate or statement of reasons has issued: Bhardwaj at 616 [53], 647 [156]. He submits that Assessor Flynn performed his duty under s.94 once only - when he issued the s.94 certificate and statement of reasons on 23 March 2006. 122 I am satisfied that s.48 Interpretation Act 1987 has no application to allow an assessor to revisit the issue of a certificate and statement of reasons under s.94 MAC Act. That power is to be exercised once only by the assessor. Where an assessor exercises that jurisdiction and issues a s.94 certificate and statement of reasons, the only circumstance in which he or she may revisit the assessment is where s.94(6) applies and the Principal Claims Assessor refers the matter back to the assessor. 123 However, an administrative decision which involves jurisdictional error is regarded, in law, as no decision at all: Bhardwaj at 614-615 [51], 618 [63], 646-647 [152]; Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476 at 506 [76]; Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 78 ALJR 992 at 997 [29]. Prima facie, the unavailability of s.48 Interpretation Act 1987 does not stand in the way of an assessor, after jurisdictional error, performing his or her statutory function under s.94 MAC Act. The question which then arises is whether the statutory scheme under the MAC Act ought be constructed so as to prevent the assessor from taking this course which is otherwise open in accordance with the principles in Bhardwaj, Plaintiff S157/2000 and SGLB. The Proper Construction of s.94(6) MAC Act 124 Mr Robertson SC submits that the power of the Principal Claims Assessor to correct "obvious error" under s.94(6) MAC Act is an important matter to be taken into account in the process of statutory construction to determine whether it was open to Assessor Flynn to revisit the matter and issue a s.94 certificate and statement of reasons on 23 March 2006. It is appropriate to consider the meaning and operation of s.94(6) MAC Act. 125 Having regard to s.105(2) MAC Act, it is apparent that s.94(6) does not assign to the Principal Claims Assessor a broad review function with respect to certificates or statements of reasons issued by assessors. 126 Although claims assessors, in the exercise of their functions, are subject to the general control and direction of the Principal Claims Assessor (s.105(3)), an assessor is not subject to control and direction with regard to any decisions of the claims assessor affecting the interests of parties to the assessment, and neither the MAA nor any public servant (including the Principal Claims Assessor) may overrule or interfere with such decision of the claims assessor in respect of an assessment. 127 The narrow function assigned to the Principal Claims Assessor with respect to obvious errors under s.94(6) is confirmed by provisions in Chapter 17 of the Claims Assessment Guidelines of the MAA (s.94 and Chapter 17 are reproduced in paragraphs 13 and 18 of this judgment). 128 It will be remembered that the Principal Claims Assessor, in this case, pointed to the examples contained in Chapter 17.3 of the Guidelines as demonstrating that the matters advanced by the parties as obvious errors were not, in fact, to be so characterised. 129 Section 94(6) MAC Act and Chapter 17 of the Claims Assessment Guidelines appear to have been modelled upon provisions such as s.87 Administrative Decisions Tribunal Act 1997 (NSW) and s.43AA Administrative Appeals Tribunal Act 1975 (Cth). 130 Section 43AA Administrative Appeals Tribunal Act 1975 (Cth) was inserted in 1995 to provide for a form of statutory slip rule: Re Sedgman and Comcare (1999) 55 ALD 297 at 299-300; Hazim v Secretary, Department of Family and Community Services (2002) 68 ALD 39 at 47; Johnson v Veterans' Review Board (2005) 41 AAR 120 at 129-130. 131 Earlier in this judgment, mention was made of the statutory slip rule now contained in Part 36.17 Uniform Civil Procedure Rules. That provision is in the following terms: " Correction of judgment or order ("slip rule") (cf SCR Part 20, rule 10; DCR Part 17, rule 10; LCR Part 16, rule 10) If there is a clerical mistake, or an error arising from an accidental slip or omission, in a judgment or order, or in a certificate, the court, on the application of any party or of its own motion, may, at any time, correct the mistake or error." 132 There is some similarity in the language used in the statutory slip rule concerning New South Wales courts (Part 36.17), the slip rule relating to New South Wales and Commonwealth administrative tribunals (s.87; s.43AA) and that applicable to claims assessment under the MAC Act (s.94(6); Chapter 17, Claims Assessment Guidelines). 133 There are, however, some important differences. Firstly, the statutory slip rule concerning administrative tribunals and decision makers requires an "obvious error" before corrective action may be taken. The slip rule affecting courts does not contain this additional element requiring an error to be "obvious". Secondly, it may be seen that the corrective power under s.87(4) Administrative Decisions Tribunal Act 1997 and s.43AA(4) Administrative Appeals Tribunal Act 1975 (Cth) may be exercised by the President or by the member who presided at the proceedings to which the decision relates. The corrective power under s.94(6) MAC Act is to be exercised by the Principal Claims Assessor who may issue, or approve of the claims assessor issuing, a replacement certificate or statement of reasons to correct the obvious error. Thirdly, the slip rule concerning claims assessment is to be found partly in the Act (s.94(6)) and partly in subordinate legislation (Chapter 17 of the Guidelines). 134 The word "obvious" is defined in The Macquarie Dictionary as meaning "clearly perceptible or evident; easily recognised or understood; open to view or knowledge: an obvious advantage". The Oxford English Dictionary defines "obvious" as meaning "plain and evident to the mind; perfectly clear or manifest; plainly distinguishable; clearly visible". 135 From time to time, terms such as "patent error" or "manifest error" are used in statutes which allow correction of a record or decision without resort to court proceedings. In Riley v Parole Board of NSW (1985) 3 NSWLR 606 at 616, Kirby P said with respect to the meaning of "patent error" in s.23 Probation and Parole Act 1983 (which permitted the Parole Board to correct a patent error by a sentencing court): "It is important to reflect upon why provision has been made for action on a 'patent' error. Clearly, this is to distinguish a case where correction involves a matter of substance and merit (requiring that any intervention be by an appellate court) from a case of simple and manifest mistake (where the Board can properly intervene to do justice without illegitimately invading the judicial province). The procedure envisaged in s 23(1) is not to replace the facility of appeals." 136 In Larkin v Parole Board (1987) 10 NSWLR 57, Kirby P said at 64: "The word 'error' has been described, in other contexts, as one of vague connotation: cf Lord Goddard CJ in Simpson v Peat [1952] 2 QB 24 at 27. It may, depending on the context, describe both a careless act and one which, though mistaken, was not careless (loc cit). What is involved is the appearance of something altogether different from that which might have been expected: cf SS Knutsford Ltd v Tillmanns & Co (1908) 99 LT 399 at 401." 137 In Larkin v Parole Board, McHugh JA referred to the common law distinction between patent and latent ambiguities in documents (at 69-70). In construing the term "patent error", McHugh JA (Samuels JA agreeing) said at 70-71: "Although the expression 'patent error' is often used by judges to describe appealable errors, there is very little case law on the term in a legislative context. In Hanna v Mynhardt 1935 TPD 63, Tindall and Barry JJ, sitting in the Transvaal Provincial Division of the Supreme Court of South Africa, considered the term 'patent error' in a section empowering a magistrate to 'correct patent errors in any judgment'. Their Lordships held (at 66-67) that a patent error meant 'an error which is patent on the face of the record'. However, in Riley v Parole Board of New South Wales (1985) 3 NSWLR 606 Kirby P speaking of s 23(1) of the Act, thought that it was permissible, to some extent, to go beyond the record. He said (at 616): '… Inferences which might properly be drawn were, it was agreed, potentially within the expression 'patent error' as used in s 23(1) of the 1983 Act. What is required is that the error be clear, not that any particular formulation of words should have been used. The statute is seeking to delineate cases where it is necessary to have resort, in any significant respect, beyond the face of the judgment imposing the sentence, although if necessary inferences may be taken into account, some understanding of the background facts and ordinary practices may be a permissible supplement to the record itself.' I agree that s 23 requires that the error must be clear. But I do not see anything in s 23 or its context which precludes the Board from going, wholly or partly, beyond the terms of the judgment of the court imposing the sentence. I think that, in its context in s 23, 'patent' simply means manifest or evident. The distinction which s 23 makes is not between the record or judgment of the Court and external material, but between obvious and arguable errors. If the Board is satisfied that the Court has made a manifest error, it may exercise its powers under s 23 even though it could reach its conclusion only by considering material outside the judgment or record of the Court." 138 Thus, in construing the term "patent error" in its statutory context, McHugh JA in Larkin v Parole Board concluded that the Parole Board could consider material outside the judgment or the record of the Court to determine whether such error existed. It is important to observe, however, that s.23(1)(b) Probation and Parole Act 1983 applied where "the Board … is satisfied that a court has made a patent error in specifying a non-parole period for a prisoner" and s.23(2) provided that "patent error" included "a mistake of fact and an error in calculation". The statute did not require (for understandable reasons) the "patent error" to be contained in a particular document or record. By way of contrast, s.94(6) MAC Act applies if the Principal Claims Assessor "is satisfied that a certificate as to an assessment or a statement attached to the certificate contains an obvious error" The "obvious error" must be contained in the certificate or statement of reasons. 139 In Promenade Investments Pty Limited v State of New South Wales (1992) 26 NSWLR 203, Sheller JA (Mahoney and Meagher JJA agreeing) considered the meaning of the term "manifest error of law on the face of the award" in s.38 Commercial Arbitration Act 1984. Sheller JA said at 225: "The expression 'error of law on the face of the award' is one of a type well-known to courts. The award having been examined the question is whether there is apparent (and such is the denotation of the word 'manifest') an error of law. 'Manifest error' is an expression sometimes used in reference to reasons given by judges or the approach taken by juries: see, eg, s 107(c)(iii) of the Supreme Court Act 1970 and the judgments of Kirby P in Azzopardi v Tasman UEB Industries Ltd (at 151) and Otis Elevators Pty Ltd v Zitis (1986) 5 NSWLR 171 at 181. It is used to indicate something evident or obvious rather than arguable: see generally per McHugh JA in Larkin v Parole Board (1987) 10 NSWLR 57 at 70-71." 140 In Merza v Registrar of the Workers Compensation Commission [2006] NSWSC 939, Hoeben J considered the construction of s.327(3)(d) Workplace Injury Management and Workers Compensation Act 1998 which allowed for an appeal against a medical assessment upon the ground that the medical assessment contains a "demonstrable error". His Honour observed, at paragraph 35, that error alone is not sufficient to constitute "demonstrable error". Hoeben J said at paragraph 39: "I do not propose to, nor is it necessary, that I define what is 'demonstrable error' for the purposes of s327 of the Act in an exhaustive way. It is sufficient for the purposes of this matter that I conclude that 'demonstrable error' is an error which is readily apparent from an examination of the medical assessment certificate and the document referring the matter to the AMS for assessment." 141 The term "accidental omission" in the statutory slip rule relating to courts has been construed as extending to a failure by a legal representative and/or judicial officer to consider and determine a claim for interest arising in civil proceedings: Shaddock at 594-5, 597; Gould v Vaggelas at 274-275; Storey & Keers at 450-451, 452-453; Sakr at paragraphs 47-71; RTA v Palmer (No. 2) at paragraphs 23-25. 142 Clause 17.3.2 of the Claims Assessment Guidelines states that an example of an obvious error in a s.94 certificate or statement of reasons is where "there is an error arising from an accidental slip or omission". Do the cases concerning the application of the statutory slip rule to a claim for interest in court proceedings support a construction of s.94(6) MAC Act and Chapter 17 of the Claims Assessment Guidelines so as to include, as an "obvious error", a circumstance where the parties agree at an assessment conference that a claim for interest should be deferred for later consideration, and the assessor accepts this approach, but overlooks this issue and proceeds to purportedly issue a s.94 certificate and statement of reasons? At this point, it is appropriate to note a restriction which has been placed upon the application of the statutory slip rule in court proceedings. In Storey & Keers, McHugh JA (as his Honour then was) said at 453E-F: "The rationale of the slip rule also requires that an omission or mistake should not be treated as accidental if the proposed amendment requires the exercise of an independent discretion or is a matter upon which a real difference of opinion might exist: cf Brew v Whitlock (No. 3) [1968] VR 504 at 506. In general the test of whether a mistake or omission is accidental is that applied by Lord Herschell in Hatton v Harris [1892] AC 547 at 558 if the matter had been drawn to the court's attention would the correction at once had been made?" 143 The submissions before me did not refer to these decisions concerning the statutory slip rule in court proceedings. Mr Robertson SC did not advance a construction of s.94(6) which would have allowed the failure to hear and determine the claim for interest to be remedied under that provision (T35.52-37.54). Mr Robertson SC submitted that "whether something is or isn't an obvious error would involve matters of judgment rather than perhaps hard-edged facts" (T37.21). Mr Petty SC submitted that s.94(6) "is plainly not a plenary power which is capable of correcting all errors" and that this case "demonstrates somewhat painfully that an error may be serious but not obvious" (T49.31). He accepted that the examples contained in Chapter 17 of the Claims Assessment Guidelines threw light on the meaning of the term "obvious error" (T49.44). Mr Petty SC emphasised that s.94(6) required that the error be obvious to the Principal Claims Assessor and that there are practical limitations upon the steps to be taken by that officer, who cannot step into the shoes of the claims assessor (T49.58-50.4). Mr Petty SC accepted that "the ambit of the obvious omission provision is intended to be the traditional slip rule type of power" (T49.53). He emphasised also that the "obvious error" had to be contained in the certificate or statement of reasons and that it cannot have been intended that the Principal Claims Assessor would, in a case such as this, undertake a type of fact-finding function as to whether there had been a departure from the principles of procedural fairness (T50.12). Mr Petty SC concluded his submissions on this issue as follows (T50.35): "We submit section 94(6) is in its terms confined to obvious errors or omissions contained in the certificate or statement of reasons and it does not extend to all errors. It certainly does not extend to serious errors of the type here involved. It really is nothing more than a variant of the slip rule." 144 The proper construction of the term "obvious error" in s.94(6) MAC Act requires identification of the meaning of the term in its statutory context: Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at 381 [69], 384 [78]. In my view, errors caught by this provision are errors which must be readily apparent to the Principal Claims Assessor on the face of the certificate and/or statement of reasons. The error must be clear and not merely arguable. The words of s.94(6) confine the attention of the Principal Claims Assessor to the certificate and/or statement of reasons to determine whether she is satisfied that an "obvious error" is contained therein. Unlike the provision considered in Larkin v Parole Board, it is not open to the Principal Claims Assessor to inquire beyond those documents to determine whether an "obvious error" exists. 145 The use of the word "may" in s.94(6) indicates that a discretionary power is reposed in the Principal Claims Assessor: s.9(1) Interpretation Act 1987. An order under the slip rule is not available as a matter of course and there is a discretion in the Court to refuse an order: Shaddock at 597; Gould v Vaggelas at 275-276. 146 I am satisfied that s.94(6) does not extend to a situation, such as in the present case, where the Assessor has overlooked a claim for interest and has purported to issue a certificate and statement or reasons determining the balance of the claim. 147 However, even if it was open to conclude that what occurred here constituted an accidental omission within Chapter 17.3.2 of the Claims Assessment Guidelines, a further impediment would exist to the application of s.94(6) to the situation. The determination of the claim for interest required the exercise of an independent discretion under s.137 MAC Act. As such, applying the principles in Storey & Keers, it does not seem to me that such an omission would be caught by the statutory slip rule contained in s.94(6) MAC Act. 148 I am satisfied that s.94(6) did not apply to provide a remedy in the circumstances of this case. Legal Status of Certificates of 30 December 2005 and 23 March 2006 149 I am satisfied that s.94(6) was not available as a means of remedying the failure of the Assessor to hear and determine the claim for interest before purporting to issue a certificate and statement of reasons on 30 December 2005. I am satisfied that this failure of the Assessor constituted a denial of procedural fairness to Mr Crazzi. A denial of procedural fairness is capable of constituting jurisdictional error. 150 Two questions arise for consideration and determination at this point of the judgment: (a) Was it open to Assessor Flynn, after 30 December 2005, to consider Mr Crazzi's claim for interest and issue a s.94 certificate on 23 March 2006? (b) If it was open to the Assessor to take this course, was the Assessor bound to consider the issues raised in the assessment afresh and on the material as it stood as at 23 March 2006? Was it Open to the Assessor to Issue a s.94 Certificate on 23 March 2006 ? 151 The answer to the first question involves consideration of the High Court's decision in Bhardwaj. Both Mr Robertson SC and Mr Petty SC took me, in some detail, to the judgments in Bhardwaj. 152 Gleeson CJ, at 602 [1], identified the issue in that case in the following way: "This appeal concerns an administrative tribunal's capacity to correct its own error when, in consequence of that error, it has failed to discharge its statutory function. " 153 In Bhardwaj, the Immigration Review Tribunal proposed to deal with the respondent's matter and invited him to attend a hearing. On the afternoon before the hearing, the Tribunal received, from the respondent's agent, a letter stating that the respondent was ill and would be unable to attend the next day and requesting an adjournment. By an administrative oversight, the letter did not come to the attention of the member of the Tribunal to whom the matter had been assigned. The Tribunal dealt with the matter adversely to the respondent and notified the respondent and his agent accordingly. The respondent's agent drew to the attention of the Tribunal member the letter which had been sent and a new hearing date was arranged. The Tribunal heard the respondent's case and found in his favour. The issue that arose for consideration concerned the capacity of the Tribunal to proceed as it did. 154 By majority (Gleeson CJ, Gaudron, McHugh, Gummow, Hayne and Callinan JJ, Kirby J dissenting), the Court held that the Tribunal had the power to take the course which it did. 155 Gleeson CJ observed at 603 [5] that there is nothing in the nature of an administrative decision which requires a conclusion that a power to make a decision, once purportedly exercised, is necessarily spent. Reference was made, at 603 [7] to the decision of the Supreme Court of Canada in Chandler v Alberta Association of Architects (1989) 2 SCR 848 where it was pointed out that, as a general rule, subject to a power to correct a slip or an error of expression, a tribunal cannot revisit its own decision because it has changed its mind, or recognises that it has made an error within jurisdiction, or because there has been a change of circumstances. However, the Court in Chandler held that the principle of functus officio should not be strictly applied if the tribunal had failed to discharge its statutory function and "there are indications in the enabling statute that a decision can be reopened in order to enable the tribunal to discharge the function committed to it by enabling legislation" (at 862). 156 Having referred to Chandler, Gleeson CJ said at 603-604 [8]: "The requirements of good administration, and the need for people affected directly or indirectly by decisions to know where they stand, mean that finality is a powerful consideration. And the statutory scheme, including the conferring and limitation of rights of review on appeal, may evince an intention inconsistent with a capacity for self-correction. Even so, as the facts of the present case show, circumstances can arise where a rigid approach to the principle of functus officio is inconsistent with good administration and fairness. The question is whether the statute pursuant to which the decision-maker was acting manifests an intention to permit or prohibit reconsideration in the circumstances that have arisen. That requires examination of two questions. Has the tribunal discharged the functions committed to it by statute? What does the statute provide, expressly or by implication, as to whether, and in what circumstances, a failure to discharge its functions means that the tribunal may revisit the exercise of its powers or, to use the language of Lord Reid, reconsider the whole matter afresh?" 157 The Chief Justice referred to submissions made in Bhardwaj contrary to the existence of the power of the tribunal to correct its own error in that case, including the absence of an express power in the tribunal to reconsider its own decisions and the need for finality having regard to the scheme for removal of unlawful non-citizens based, as it was, on the date of final determination of a visa application (at 604 [10]). 158 Gleeson CJ continued at 604 [11]: "To say that a tribunal has considered an application, reached a conclusion, and informed affected parties of its decision, is to make a statement of fact. But the legal consequences of that fact depend upon the Act; and the answer to a question about those consequences may depend upon the purpose for which the question is asked. The answer to the question whether a legally effective decision has been made may depend upon the kind of legal effect that is under consideration, and upon further facts as to what was done, or not done, following the communication of the decision." 159 Gleeson CJ, at 605-606 [14]-[15], concluded that it was open to the tribunal to correct its own error, explaining that conclusion in the following way: "In the present case there was a denial of procedural fairness; but there was more to it than that. There was an error of the kind described as 'error in fact' in the context of proceedings by writ of error: the non-fulfilment or non-performance of a condition precedent to regularity of adjudication such as would ordinarily induce a tribunal 'to stay its hand if it had knowledge, or to re-open its judgment had it the power'. The Act, in Pt 5 Div 5, prescribed the procedures according to which the tribunal was required to conduct its review of the delegate's decision. If the tribunal was not prepared to decide in the respondent's favour on the written material before it, then s 360 required that it give the respondent an opportunity to appear and give evidence and present arguments. The tribunal set out to give the respondent such an opportunity. It intended to follow the statutory procedure. As a result of an administrative slip, it denied the respondent the opportunity that he wanted to have, and that the tribunal intended to give him. And, in consequence, it dealt with the matter in the belief that the respondent had nothing to say by way of explanation of the conduct that had resulted in the cancellation of his visa. The tribunal, through an administrative error, failed to implement its own intention, and failed to comply with the statutory requirement to give the respondent an opportunity to be heard. In its reasons for its 'decision', the tribunal merely noted the delegate's decision, and observed that nothing had been put before it as to why the decision was unfair or inappropriate. That did not amount to the conduct of a review. The Act provided, in s 353, that the tribunal, in reviewing the delegate's decision, was not bound by technicalities or legal forms and should act according to substantial justice. When it learned of its own administrative error, the tribunal recognised that it had not performed its functions and proceeded to do so. In those circumstances, it was not inconsistent with the statutory scheme for the tribunal, upon becoming aware that it had not given effect to its own intention, and that it had failed to conduct a review of the delegate's decision, to give the respondent the opportunity which the statute required, which he wanted, and which the tribunal had intended to give him. On the contrary, it was in accordance with the requirements of the Act." 160 Mr Petty SC emphasises the significance of s.360 Migration Act 1958 (Cth) in Bhardwaj and draws an analogy with Chapter 13.4 of the Claims Assessment Guidelines which, at Chapter 13.4.1 make express provision for each party to be given an opportunity to address the Assessor on any issue in dispute. Mr Robinson, for the MAA, pointed to the similarity between s.360 and Chapter 13.4.1 in his oral submissions. 161 Section 360(1) required the tribunal to give an applicant the opportunity to appear before it to give evidence and present arguments relating to the issues arising on the decision under review and to enable the tribunal to obtain such other evidence as it considered necessary. 162 In Bhardwaj, Gaudron and Gummow JJ said at 612 [43]-[44]: "The failure of the tribunal to give Mr Bhardwaj a reasonable opportunity to present evidence and argument had the consequence that it did not reach a decision after considering evidence and argument against the cancellation of his visa. That being so, it follows that the tribunal did not conduct a review as required by the Act and the September decision was, thus, not a 'decision on review' for the purposes of ss 367 and 368 of the Act. To say that the September decision was not a "decision on review" for the purposes of ss 367 and 368 of the Act is simply to say that it clearly involved a failure to exercise jurisdiction, and not merely jurisdictional error constituted by the denial of procedural fairness." 163 Gaudron and Gummow JJ, at 613 [46], did not consider it helpful to describe erroneous administrative decisions by use of labels: "In our view, it is neither necessary nor helpful to describe erroneous administrative decisions as 'void', 'voidable', 'invalid', 'vitiated' or, even, as 'nullities'. To categorise decisions in that way tends to ignore the fact that the real issue is whether the rights and liabilities of the individual to whom the decision relates are as specified in that decision. And, perhaps more importantly, it overlooks the fact that an administrative decision has only such force and effect as is given to it by the law pursuant to which it was made. Further, the use of the term 'appeal' and the proposition that an administrative decision must have sufficient vitality to provide the subject-matter of such a curial proceeding should not obscure the fundamental proposition that such an 'appeal' or other proceeding for judicial review is an exercise of original jurisdiction by the court concerned. It will be necessary to refer further to this consideration later in these reasons." 164 At 614-615 [51], Gaudron and Gummow JJ said: "There is, in our view, no reason in principle why the general law should treat administrative decisions involving jurisdictional error as binding or having legal effect unless and until set aside. A decision that involves jurisdictional error is a decision that lacks legal foundation and is properly regarded, in law, as no decision at all. Further, there is a certain illogicality in the notion that, although a decision involves jurisdictional error, the law requires that, until the decision is set aside, the rights of the individual to whom the decision relates are or, perhaps, are deemed to be other than as recognised by the law that will be applied if and when the decision is challenged. A fortiori in a case in which the decision in question exceeds constitutional power or infringes a constitutional prohibition." 165 After referring to Chandler, Gaudron and Gummow JJ said at 616 [53]: "In our view, logic and legal principle both direct the conclusion that the approach of the Supreme Court of Canada is correct. As already pointed out, a decision involving jurisdictional error has no legal foundation and is properly to be regarded, in law, as no decision at all. Once that is accepted, it follows that, if the duty of the decision-maker is to make a decision with respect to a person's rights but, because of jurisdictional error, he or she proceeds to make what is, in law, no decision at all, then, in law, the duty to make a decision remains unperformed. Thus, not only is there no legal impediment under the general law to a decision-maker making such a decision but, as a matter of strict legal principle, he or she is required to do so. And that is so, regardless of s 33(1) of the Acts Interpretation Act." 166 Gaudron and Gummow JJ held that it was open to the tribunal to correct its own error. McHugh J, at 618 [63], agreed with Gaudron and Gummow JJ on this question. 167 Kirby J in a dissenting judgment, emphasised the uncertainty which would arise if a tribunal could treat its own decision as being of no legal effect (at 637 [122]). 168 Hayne J, who formed part of the majority, made the following observations with respect to jurisdictional error at 644-645 [148]-[149]: "No less importantly, it must be recognised that, after the September decision, the respondent would have been entitled to mandamus compelling the tribunal to perform its duty to review the decision made by the minister's delegate. Moreover, as the decision in R v War Pensions Entitlement Appeal Tribunal; Ex parte Bott [(1933) 50 CLR 228 at 242] reveals, mandamus would have been available even though no order quashing the September decision was sought or obtained. It would have been enough for the respondent to show 'that the ostensible determination [of the tribunal] is not a real performance of the duty imposed by law upon the tribunal'. The error committed by the tribunal in reaching its September decision was a jurisdictional error. What it did was not authorised by the Act and did not constitute performance of its duty under the Act. As the availability of mandamus demonstrates, the September decision was not a decision of the review that the respondent had sought in relation to the decision of the minister's delegate. The error made by the tribunal in this case must be contrasted with other, non-jurisdictional, errors that a decision-maker may commit. In particular, a jurisdictional error of the kind made in relation to the September decision is fundamentally different from a case where, for whatever reason, a decision-maker has second thoughts about such matters as findings of fact. No doubt the word 'error' can be applied to the circumstances last mentioned, but the legal significance of such an error is, for the reasons given by Brennan J in Attorney-General (NSW) v Quin [(1990) 170 CLR 1 at 35-36] , radically different from the significance of a jurisdictional error." 169 Callinan J formed part of the majority and observed, at 649-650 [163]-[165]: "I have formed the opinion that what happened in September 1998 was something more than a breach of the rules of natural justice. It was a failure to exercise a jurisdiction which the tribunal was bound to exercise. If one thing is abundantly clear, it is that the tribunal must, if an application has properly been made as it was here, review the minister's decision. This means that the tribunal must exercise the jurisdiction of reviewing the minister's decision: that is to say, it must make a decision on the application and any documents properly submitted by an applicant, with, as part of, or relevant to it. To fail, or refuse to receive and consider such a document, and to make a decision without regard to it, is a failure to exercise jurisdiction. This is more than a failure to give a party a hearing. It is to proceed on a false basis, that such a document simply does not exist or has not been communicated to the tribunal. The tribunal would in these circumstances no more be exercising its jurisdiction than a court would be in deciding a case in favour of a defendant without looking at the plaintiff's initiating document and pleading, or even knowing that they had been filed in the registry of the court. The application for an adjournment was an important document. The tribunal was bound to give it consideration. This was not a case in which a document or a piece of evidence was merely not referred to in a decision. This is a case in which it is known that the application for an adjournment was not brought to the attention of the tribunal in order to enable it to exercise its jurisdiction to grant or refuse the adjournment, and if it refused it, to undertake the review in the knowledge, and on the understanding that it had been refused. If the tribunal had, at the time of making its September 1998 decision, known of the application for an adjournment, it might, if it were so minded, have decided to refuse it. It might perhaps in refusing it, have been unnecessary to give any, or any detailed reasons why it did so. But what it did have to do was to exercise its jurisdiction, that is, relevantly, to make a decision about it and the court does know that that is one thing which it did not do. It follows, in my opinion, that the tribunal had not exercised its jurisdiction in September 1998 and that therefore it was open for it to do so in October 1998." 170 Mr Robertson SC emphasised that, properly understood, the decision in Bhardwaj required more than a denial of procedural fairness before a tribunal could remedy the matter. Jurisdictional error was required in the sense that the tribunal has not performed the task ascribed to it by the statute under which it operates. To emphasise this submission, Mr Robertson SC relies upon the analysis of the decision in Bhardwaj undertaken by Gray and Downes JJ in Jadwan Pty Limited v Secretary, Department of Health and Aged Care (2003) 145 FCR 1 at 15-16 [40] to the following effect: "This analysis shows that the judgment in Bhardwaj rested clearly upon the proposition that the relevant legislation did not give the first decision of the IRT force and effect such as to require the IRT to treat that decision as precluding it from exercising its statutory function. All six judges who formed the majority did so on that basis. Only Gaudron and Gummow JJ, with the agreement of McHugh J, as part of their reasoning, relied on the proposition that jurisdictional error on the part of the decision-maker causes an administrative decision to be of no legal effect. Gleeson CJ, Hayne J and Callinan J do not appear to have embraced that proposition. Kirby J in his dissenting judgment clearly did not. Gaudron and Gummow JJ did not explain in detail the consequences of the proposition that a decision has no legal effect. They did not deal with issues such as the status of the first decision of the IRT if the IRT had not chosen to ignore it and make another. Indeed, their Honours did not discuss what might be the factual, as distinct from the legal, consequences attaching to an administrative decision if no challenge to its validity is ever made, or if any challenge to its validity is made out of time, or is made in proceedings to which someone bound or otherwise affected by the decision is not a party. Nor did their Honours say anything about the possible effect of an administrative decision after a court proceeding in which a party has made out a case of jurisdictional error on the part of the decision-maker, but the court has declined to grant relief in relation to the decision by reason of discretionary considerations. The facts of Bhardwaj did not call for pronouncement upon these issues. The IRT had itself chosen to ignore its previous decision. The validity of that decision was in issue in the very proceeding with which the High Court was dealing." 171 In Jadwan, Gray and Downes JJ said at 16 [42]: "In our view, Bhardwaj cannot be taken to be authority for a universal proposition that jurisdictional error on the part of a decision-maker will lead to the decision having no consequences whatsoever. All that it shows is that the legal and factual consequences of the decision, if any, will depend upon the particular statute." 172 The third member of the Bench in Jadwan, Kenny J, agreed with the approach of Gray and Downes JJ to Bhardwaj at 22 [64]: "The first matter is the contention that judicial review 'is an exercise directed to the making of final and binding decisions as to the legal rights and duties of the parties to the review proceedings'. If that contention refers to the rights and duties in issue before the body whose decision is being judicially reviewed, as I think it does, I do not agree with it. Nor do I agree with the contention that, when an administrative decision is challenged in judicial proceedings, what 'is ultimately decided is not whether the decision was affected by error but whether the rights of the party to whom the decision relates are determined by that decision which, they will not be, if the decision must be set aside'." 173 Mr Robertson SC submits that the statutory scheme in Part 4.4 MAC Act, including s.94(6) as an avenue of referral to the Principal Claims Assessor in the case of "obvious error", points to an exclusion by the MAC Act of the ability of an assessor to revisit a purported s.94 decision upon the grounds of jurisdictional error. Allianz submits that the express provision of a limited correction power in s.94(6) operates impliedly to exclude the application of the Bhardwaj principle. Although Allianz accepts that a denial of procedural fairness has occurred, it submits that Mr Crazzi's remedy lay in an application to this Court for relief in the nature of certiorari under s.69 Supreme Court Act 1970. Mr Robertson SC submits that the type of self-help arising from the Bhardwaj principle has no application to an assessor exercising statutory functions under the MAC Act. 174 Although Mr Robertson SC did not cite expressly the maxim "expressio unius est exclusio alterius", his submission invokes the concept underlying the maxim - that the express statement of a matter in some circumstances (the power to correct obvious error in s.94(6)) excludes an implied statement of the matter (power in the assessor to correct under the Bhardwaj principle) in other circumstances: Von Lieven v Stewart (1990) 21 NSWLR 52 at 64. 175 Mr Petty SC emphasises the nature of jurisdictional error in the context of administrative decision making: Craig v South Australia (1994-1995) 184 CLR 163 at 179; Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 at 351 [82]. He submits that Bhardwaj applies clearly in the circumstances of this case. Consideration of Submissions 176 The Bhardwaj decision has particular application to a case where jurisdictional error is said to arise from a denial of procedural fairness. Jadwan was not such a case. A different form of jurisdictional error was alleged and held not to attract the Bhardwaj principles. 177 It is noteworthy that the High Court has restated the Bhardwaj principle, without qualification, in two cases decided since Jadwan. In Plaintiff S157/2002 v Commonwealth of Australia, Gaudron, McHugh, Gummow, Kirby and Hayne JJ said at 506 [76] that "this Court has clearly held that an administrative decision which involves jurisdictional error is 'regarded, in law, as no decision at all'." This passage was applied in Minister for Immigration and Multicultural and Indigenous Affairs v SGLB at 997 [29]. 178 The statutory scheme governing a claims assessment under the MAC Act makes express provision for the manner in which procedural fairness is to be afforded to the parties. In this respect, the relevant statutory scheme under the MAC Act is analogous to the scheme considered in Bhardwaj. 179 Where a statute sets out the manner in which procedural fairness is to be afforded by an administrative tribunal, it has been held that a legislative intention is disclosed whereby a particular measure of natural justice is made a pre-condition of validity, with failure to afford that measure of natural justice rendering a determination void, relying, inter alia, on the Bhardwaj principle: Brodyn Pty Limited v Davenport (2004) 61 NSWLR 421 at 442-443 [57]. 180 For the Assessor to proceed to issue a certificate where the parties had agreed, and the Assessor had accepted, that Mr Crazzi's claim for interest ought be left until the other claims for damages had been quantified, constituted a clear denial of procedural fairness. No submission to the contrary was made before me. 181 The MAC Act provides for interest to be allowed (s.137). No provision is made for this to be done separately and after the calculation of damages. The MAC Act envisages the issue of a single certificate assessing all claims for damages falling within Part 5 of the Act as made by a claimant, including a claim for interest. The action of the Assessor in purporting to issue a certificate on 30 December 2005 without hearing Mr Crazzi's claim for interest, deprived Mr Crazzi of an opportunity of advancing a part of his claim in relation to which he was entitled to a hearing and determination. Of course, this state of affairs came about because Allianz proposed such an approach. I shall return to this aspect later in the judgment. 182 I find that a clear denial of procedural fairness occurred involving a failure by the Assessor to comply with the specific procedural fairness provisions in the Claims Assessment Guidelines and to hear and determine a statutory element of Mr Crazzi's claim for damages, being his claim for interest under s.137 MAC Act. 183 In these circumstances, I am satisfied that the Assessor failed to discharge his statutory function and, as well, denied procedural fairness to Mr Crazzi. This is not a case of the Assessor revisiting a decision because he has changed his mind or has made an error within jurisdiction. The Assessor had not completed the exercise of his statutory function to determine Mr Crazzi's claim for damages (including interest) under Part 5 MAC Act. There has been a failure to exercise jurisdiction combined with jurisdictional error in the form of a denial of procedural fairness. I am satisfied that the principles in Bhardwaj and Jadwan apply to this case. 184 I do not consider that the statutory scheme created by the MAC Act, including s.94(6), operates to exclude the Bhardwaj principle in a case where an assessor has failed to exercise his statutory function in a manner which also constitutes a denial of procedural fairness. Section 94(6) is a relatively narrow slip rule provision. I note that the Administrative Decisions Tribunal has not regarded the presence of s.87 Administrative Decisions Tribunal Act 1997 as an impediment to the application of the Bhardwaj principle in a case where jurisdictional error had occurred before that Tribunal: French v Sydney Turf Club Ltd (No. 2) [2003] NSWADTAP 54. 185 To the extent that the Allianz submission seeks to invoke, directly or indirectly, the expressio unius principle, it is appropriate to bear in mind the caution to be exercised before applying the principle: Ainsworth v Criminal Justice Commission (1991-1992) 175 CLR 564 at 575. The maxim has been said to be a valuable servant but a dangerous master: Houssein v Under Secretary Department of Industrial Relations (1982) 148 CLR 88 at 94; Hornsby Shire Council v Porter (1990) 19 NSWLR 716 at 720-721. 186 It may be said that there is a need for certainty, including temporal certainty, in the certificate-issuing process given the provisions in ss.94 and 95 MAC Act. It was acknowledged by Gleeson CJ and Kirby J in Bhardwaj that consideration should be given to the impact upon the statutory scheme which may flow from a tribunal being able to revisit its own decision in the case of jurisdictional error. 187 It seems to me that this argument cuts both ways in the case of the MAC Act. A s.94 certificate is an important document. If accepted by a claimant for the purposes of s.95(2)(b), an award of damages in that sum will flow to the claimant. On the other hand, if a claimant does not accept the sum assessed in the certificate within 21 days, a significant costs penalty will operate in the event that the claimant does not obtain a significantly larger award of damages in curial proceedings. All of this suggests the need for a proper and complete process involving the full discharge by the assessor of the relevant statutory function with a final point of correction, where the jurisdiction has been exercised, in the event of "obvious error" under s.94(6) MAC Act. 188 I do not accept the submission of Allianz that the existence of s.94(6) in the Act points to an exclusion by the statute of the ability of an assessor to revisit a purported s.94 decision upon the grounds of jurisdictional error. The corrective power created by s.94(6) is a narrow one and is confined to circumstances which do not extend to the present case. I am not satisfied that the legislature intended, by enacting s.94(6), to cover the field with respect to corrective action which may be taken by a claims assessor so as to exclude operation of the Bhardwaj principle. Section 94(6) is a limited remedy applicable where there is an "obvious error" in a s.94 certificate and statement of reasons which have, as a matter of law, issued. The provision applies to a valid certificate and statement of reasons and permits correction of that certificate and statement of reasons and the issue of a "replacement certificate or statement". Where jurisdictional error has occurred, there is, in law, no certificate or statement which has been issued. It is not a case of replacement of a certificate or reasons which have issued in law, but the exercise, for the first time, of the statutory jurisdiction to issue a s.94 certificate and statement of reasons. I am satisfied that this construction promotes the objects of the MAC Act: s.5(1)(b); s.6 MAC Act. 189 In my view, the effective operation of the claims assessment and certification process under ss.94 and 95 MAC Act will be enhanced by application of the Bhardwaj principle so as to allow an assessor to promptly remedy an omission which, as in this case, constitutes both a denial of procedural fairness and a failure to exercise the assessor's statutory function. This approach will also promote an important object of the MAC Act being the provision of compensation for compensable injuries sustained in motor accidents and the encouragement of early resolution of compensation claims: s.5(1)(b). 190 It was open to Assessor Flynn, in the circumstances of this case, to invite the parties to make submissions on the claim for interest and to issue a s.94 certificate on 23 March 2006. Was the Assessor Bound to Consider the Facts as they Stood as at 23 March 2006? 191 Mr Robertson SC submitted that, in the event that I held that it was open to the Assessor to remedy his own error, the Assessor was bound to have regard to the facts and circumstances as they stood as at 23 March 2006. 192 In support of this argument, Mr Robertson SC relied upon Minister for Aboriginal Affairs v Peko-Wallsend Limited (1985-1986) 162 CLR 24. In that case, certain aboriginals made claims to land in the Northern Territory. The Aboriginal Land Commissioner held an inquiry into the claims and recommended that a grant be made of land which included a particular area. Exploration companies had discovered a large deposit of uranium which lay in that part of the block recommended for a grant. The Commissioner commented on the detriment that a grant might have on the companies, but he was not aware that the deposit lay wholly within the area recommended for grant. Thereafter, the companies informed the then Minister of the true position. A successor to the Minister, without reference to that information, recommended to the Governor-General that a grant should be made of land which included the land containing the deposit. The High Court held that the Minister was bound to take into account the Commissioner's comments on detriment in exercising his power to decide whether or not he was satisfied that a grant should be made. 193 Mr Robertson SC relied upon passages in the judgments of Gibbs CJ at 30-31, Mason J at 44-45, Brennan J at 67, Deane J at 70 and Dawson J at 71. Particular reliance was placed upon the following statement by Mason J at 44-45: "The second question, which lies at the heart of this appeal, is whether the Minister is also bound to take into account submissions made to him which correct, update or elucidate the Commissioner's comments on detriment. Once it is accepted that the subject matter, scope and purpose of the Act indicate that the detriment that may be occasioned by a proposed land grant is a factor vital to the exercise of the Minister's discretion, it is but a short and logical step to conclude that a consideration of that factor must be based on the most recent and accurate information that the Minister has at hand. Considerable time may elapse between completion of the Commissioner's report and the date at which the Minister makes his decision; in the present case it was well over one and a half years. In that time there may be such a change of circumstances that the Commissioner's comments may no longer prove to be an accurate guide, there may be uncertainties or ambiguities in his comments that deserve clarification, or, as in the present case, even though there may have been no change of circumstances, interested parties may have become aware that the Commissioner's report omitted material matters on the subject of detriment. It would be a strange result indeed to hold that the Minister is entitled to ignore material of which he has actual or constructive knowledge and which may have a direct bearing on the justice of making the land grant, and to proceed instead on the basis of material that may be incomplete, inaccurate or misleading. In one sense this conclusion may be seen as an application of the general principle that an administrative decision-maker is required to make his decision on the basis of material available to him at the time the decision is made. But that principle is itself a reflection of the fact that there may be found in the subject matter, scope and purpose of nearly every statute conferring power to make an administrative decision an implication that the decision is to be made on the basis of the most current material available to the decision-maker." 194 Mr Petty SC submitted that, properly understood, the decision in Peko-Wallsend provided no assistance to Allianz in this case. A different statutory scheme was under consideration in that case. It was submitted that the principles emerging from Peko-Wallsend are far removed from the circumstances of this case and an understanding of the functions of an assessor under the MAC Act. Consideration of Submissions 195 Several features of the claims assessment scheme under the MAC Act should be emphasised. On the day of the assessment conference or hearing, the parties appear before the assessor with the view to presenting material and submissions so that the assessor may make a decision with respect to all aspects of the claim and then issue a certificate and statement of reasons under s.94 MAC Act. As Mr Robertson SC submitted, correctly, an adjudicative process is involved (see paragraph 120 above). There is a statutory expectation that the certificate will issue, together with reasons, expeditiously: Chapter 10.5, 16.2 Claims Assessment Guidelines. Once a certificate has issued, the claimant has a limited and fixed time period in which to accept the assessment under s.95(2)(b) of the Act. All of this may be seen to serve and promote the object of the Act whereby early resolution of claims is encouraged: s.5(1)(b). 196 In the present case, Allianz sought an adjournment of the assessment conference prior to the hearing date, and again on the hearing date. On both occasions, the Assessor refused the application for adjournment. The decisions lay within the exercise of the Assessor's discretionary functions and powers. At the hearing on 7 December 2005, at the suggestion of counsel for Allianz, the claim for interest was put to one side pending assessment of Mr Crazzi's claim for damages. Although counsel for Allianz requested the Assessor to include, in the s.94 written reasons, his reasons for refusing the adjournment application on 7 December 2005, there was no statutory or other obligation on the Assessor to provide those reasons (or further reasons) for his discretionary refusal of the adjournment. Nevertheless, the Assessor indicated a willingness to give reasons in that respect. 197 To all intents and purposes, the assessment conference was completed on 7 December 2005, subject to an opportunity for the parties to be heard on Mr Crazzi's claim for interest at a later time. 198 Assessor Flynn purported to issue a s.94 certificate and statement of reasons on 30 December 2005 without hearing Mr Crazzi's claim for interest. The certificate and reasons were silent on the claim for interest and omitted any reasons for refusing the insurer's adjournment application on 7 December 2005. 199 Once Assessor Flynn had determined that he should receive submissions from the parties on the claim for interest, that was the sole remaining aspect of the claim which needed to be fulfilled in exercise of his statutory function. The Assessor had failed to exercise his statutory function by omitting to hear and determine this claim and, in the process, denied Mr Crazzi procedural fairness. 200 In my view, the proper construction of the statutory scheme in the MAC Act militates against a conclusion that it was somehow necessary for Assessor Flynn to ascertain the relevant facts and circumstances as they stood as at 23 March 2006. There is a clear distinction between the statutory function being exercised in Peko-Wallsend and the statutory function being exercised by an assessor under the MAC Act. All that Assessor Flynn had to do to complete the exercise of his statutory adjudicative function was to hear the parties on the claim for interest and to make a determination in that respect to be included in his s.94 certificate and statement of reasons. In Peko-Wallsend, the statutory process involved the Aboriginal Land Commissioner ascertaining whether applicants for traditional land were traditional owners and, if so, recommending to the Minister that land be granted to them: s.50(1)(a) Aboriginal Land Rights (Northern Territory) Act 1976 (Cth). Where such a recommendation was made, and the Minister was satisfied that land should be granted, the Minister should recommend that course to the Governor-General: s.11(1)(b). Accordingly, three different persons were involved in the decision-making process. As Mason J observed in Peko-Wallsend at 45, such a process is likely to be protracted with the prospect of changed circumstances between the time of the Commissioner's recommendation and the ultimate decision to be made by the Governor-General. In those circumstances, it is understandable that the conclusion was reached that the decision maker must have regard to the material available at the time when the decision was made. 201 By way of contrast, an assessor under the MAC Act, in the ordinary course, conducts an assessment conference or hearing at which evidence and submissions are received followed by the issue of a s.94 certificate and statement of reasons. Although the process does not involve a curial hearing governed by the rules of evidence, there are identifiable and well-known features of the process which resemble preparation for and the conduct of a court hearing. There is a single decision reflecting the evidence and submissions made at the time of the assessment conference. There is a statutory expectation that the assessor will proceed to an assessment conference, and thereafter issue a s.94 certificate and statement of reasons, expeditiously. In practice, some time may pass whilst the assessor prepares the written certificate and statement of reasons. The certificate and statement of reasons, however, will reflect the evidence, issues and submissions advanced at the time of the assessment conference or hearing. There is no warrant to construe the assessor's function under s.94 MAC Act as requiring a type of obligation to obtain an update of the facts and circumstances as at the time when the certificate issues. In the present case, the assessment conference was complete and the Assessor reserved his decision on all issues except the claim for interest which was deferred on the application of Allianz. 202 The fact that Assessor Flynn, in accordance with his stated intention, provided reasons on 23 March 2006 for refusing Allianz's adjournment application on 7 December 2005 does not advance the insurer's case. In my view, this was an unnecessary step. Likewise, the fact that Assessor Flynn took the opportunity to correct a mathematical error which had appeared in his purported statement of reasons on 30 December 2005 does not advance Allianz's case before me. 203 The approach of the Assessor in having regard to Allianz's offer of 6 February 2006 operated advantageously to Allianz and to the detriment of Mr Crazzi. If Mr Crazzi's counsel had pressed the claim for interest on 7 December 2005, Allianz would not have been able to point to an offer of settlement which could assist it on that issue. Further, once Assessor Flynn had reserved his decision at the end of the assessment conference on 7 December 2005, all aspects of the claim would have been heard and a certificate would have issued which would not have attracted the litigious controversy which has embroiled the parties since 30 December 2005. 204 I am satisfied that it was open to Assessor Flynn to treat all aspects of the claim as remaining as they stood at the time of hearing on 7 December 2005, with the only element calling for consideration of submissions advanced by the parties being the claim for interest. The statements in Peko-Wallsend do not apply to this case so as to require the Assessor to, in effect, obtain an update on aspects of the claim. The solicitors for Allianz, in one letter, asked the Assessor to defer consideration of the matter until after the further medical assessment process had been undertaken. In my view, the Assessor was not bound to take this course. There is nothing in the MAC Act which requires him to so proceed. In particular, the position had been reached in this case where the assessment conference was complete and with the Assessor's decision being reserved on 7 December 2005, subject only to the interest claim which, at the insurer's suggestion, had been placed to one side. 205 The Assessor was not bound to defer the completion of the exercise of his statutory function. 206 In reaching these conclusions, I have had regard to the objects of the MAC Act relating to the containment of costs and premiums and restriction of damages for non-economic loss: s.5(1)(e), 5(2)(a), 5(2)(b), 6 MAC Act; Longhurst v Hunt. I do not consider that these factors required the Assessor to defer the issue of the s.94 certificate until the further medical assessment was complete. The MAC Act did not require that approach. The Assessor had twice exercised his discretion to refuse the adjournment applications of Allianz. 207 In the present case, the Assessor had exercised his statutory function under s.94 MAC Act virtually to completion. He was not bound to defer the issue of a s.94 certificate pending the further medical assessment process. It was open to the Assessor to consider and determine the sole remaining question and to then issue a s.94 certificate and statement of reasons, as he did, on 23 March 2006. 208 Allianz has not demonstrated an entitlement to relief as claimed in the Summons. Discretionary Factors 209 In view of the conclusions which I have reached in respect to the claim by Allianz, it is not strictly necessary to deal with the question of discretion. However, since the matter was fully argued before me, I propose to make some observations concerning this aspect of the case. 210 In the event that some basis for relief had been demonstrated, Mr Petty SC made forceful submissions that there were discretionary reasons as to why that relief ought be refused in any event. He pointed, in particular, to the fact that the origin of the present controversy stemmed from the submission of Allianz, on 7 December 2005, that Mr Crazzi's claim for interest be considered separately and at a later time after other aspects of his claim for damages had been assessed. Mr Crazzi's counsel agreed to this proposal which was accepted by the Assessor. Had counsel for Allianz not advanced this proposal, the hearing would have been completed on 7 December 2005 and Assessor Flynn would have issued a certificate dealing with all aspects of the claim. It would have been open to Mr Crazzi to accept the sum of damages assessed in that certificate under s.95(2)(b) MAC Act. 211 Mr Petty SC points to other events which, he submits, are relevant to the exercise of discretion. Once the purported certificate and statement of reasons dated 30 December 2005 had issued, it being immediately clear that the Assessor had overlooked the interest claim, the solicitors for Allianz engaged in correspondence which was not calculated to foster a just and quick resolution of the problem. Allianz did not contend that the 21-day period was running from 30 December 2005 until after this prospect was raised by the Principal Claims Assessor. It was then, for the first time, that Allianz contended that the time for Mr Crazzi to accept the purported certificate had expired. 212 Mr Crazzi accepted the s.94 certificate of 23 March 2006. If that certificate was declared void, and the purported certificate of 30 December 2005 stood, Mr Crazzi would be out of time to accept the assessment contained in that certificate. Mr Petty SC points to the duty upon an insurer under s.80(1) MAC Act which provides: "It is the duty of an Insurer to endeavour to resolve a claim, by settlement or otherwise, as justly and expeditiously as possible." 213 It is a condition of an insurer's licence to comply with this duty: s.80(2). Mr Petty SC submits that the actions of Allianz in this case do not sit comfortably with the statutory duty cast upon the insurer under this provision. 214 Mr Petty SC submits that, if Allianz succeeds in setting aside the certificate of 23 March 2006, that result will defeat the implementation of a proposal which its own counsel made at the assessment conference on 7 December 2005 and thus the Court should not lend its hand to such a result. 215 Put shortly, Mr Petty SC submitted that Allianz had brought all of this upon itself and that it should not benefit from a state of affairs which it generated, even if a technical legal entitlement to relief could be demonstrated. 216 Mr Robertson SC submitted that no basis had been demonstrated for the discretionary refusal of relief if Allianz was otherwise entitled to its remedy. 217 It will be recalled that I determined that s.94(6) was not available to remedy the problem in this case. What occurred here resulted from a jurisdictional error involving a denial of procedural fairness and a failure by the Assessor to exercise his jurisdiction under s.94 MAC Act. 218 If, however, I am wrong in this respect and s.94(6) did apply, I would decline relief to Allianz on discretionary grounds. 219 It would be expected that Allianz should have promptly acknowledged the obvious mistake made in its favour and should have co-operated in having the mistaken order vacated: Ambulance Service of NSW v Daniel [2004] NSWCA 406 at paragraph 7. 220 If s.94(6) was an available pathway to remedy the Assessor's failure to hear and determine the claim for interest, it would have been inevitable that the Principal Claims Assessor would have approved of the claims assessor issuing a replacement certificate or statement of reasons to correct the error. Assessor Flynn would have heard and determined the claim for interest and issued a fresh certificate disposing of all aspects of Mr Crazzi's claim. 221 At the same time, it would have been open to the Principal Claims Assessor to approve of Assessor Flynn correcting the calculation error in the replacement certificate and statement of reasons. If these steps had been taken, the 21-day period provided for in s.95(2)(b) MAC Act would not have commenced to run until Assessor Flynn had issued a s.94 certificate and statement of reasons remedying these errors and completing the exercise of his statutory function. 222 Ultimately, that is precisely what has happened in this case. Assessor Flynn completed the exercise of his jurisdiction and, after considering the claim for interest, determined not to allow it. Mr Crazzi accepted the assessment contained in the s.94 certificate which issued following Assessor Flynn's completion of his statutory function. 223 Alternatively, if Allianz had demonstrated that Assessor Flynn had fallen into jurisdictional error in his approach to the s.62 medical assessment issue, in issuing the s.94 certificate and statement of reasons on 23 March 2006, the same discretionary factors, in my view, would stand in the way of the grant of relied sought in the Summons. 224 There is no closed category of cases in which prerogative relief may be refused on discretionary grounds. Likewise, the power to grant declaratory relief is discretionary and it is neither possible nor desirable to fetter the power by laying down rules as to the manner of its exercise: Ainsworth v Criminal Justice Commission at 581-582. Although it has been said that prerogative relief will issue almost as of right, relief may be refused if, in all the circumstances, that seems the proper course: R v Ross-Jones; Ex parte Green (1984) 156 CLR 185 at 194; Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82 at 106 [52], 137 [149], 144 [172]; Aronson, Dyer and Groves, Judicial Review of Administrative Action, 3rd edn, 2004, pages 714-719, 736-745, 787-788, 789-793. 225 The principles applicable to the exercise of discretion where relief is sought under s.69 Supreme Court Act 1970 appear in The King v Commonwealth Court of Conciliation and Arbitration; Ex parte Ozone Theatres (Aust) Limited (1949) 78 CLR 389 at 400 where Latham CJ, Rich, Dixon, McTiernan and Webb JJ said: "… The writ of mandamus is not a writ of right nor is it issued as of course. There are well recognised grounds upon which the court may, in its discretion, withhold the remedy. For example the writ may not be granted if a more convenient and satisfactory remedy exists, if no useful result could ensue, if the party has been guilty of unwarrantable delay or if there has been bad faith on the part of the applicant, either in the transaction out of which the duty to be enforced arises or towards the court to which the application is made. The court's discretion is judicial and if the refusal of a definite public duty is established, the writ issues unless circumstances appear making it just that the remedy should be withheld. The question whether there are any grounds for refusing the remedy will be discussed after the question of the jurisdiction of the Court of Conciliation and Arbitration has been considered." 226 In Zuanic v Gyro-Tech (Australia) Pty Ltd (In Liquidation) [2006] NSWSC 738 at paragraphs 75-78, Hoeben J indicated that, if the Plaintiff had established an entitlement to prerogative and declaratory relief, such relief would have been refused in any event on discretionary grounds applying the Ozone Theatres principle. 227 It has been said that the Court may refuse to exercise its discretion to grant prerogative relief to an applicant if the applicant's conduct has been unmeritorious (Wade, Administrative Law, 1982, 5th edn, pages 477, 591), blameworthy (Peko-Wallsend Limited v Minister for Aboriginal Affairs (1985) 5 FCR 532 at 541-3, 560-561, 569) or the applicant acquiesced in the conduct of the proceedings in which he is complaining (Aronson, Dyer and Groves, above at page 718; Sykes, Lanham and Tracey, General Principles of Administrative Law, 1989, 3rd edn, page 240). 228 In my view, there are features of this case which would operate against the grant of a discretionary remedy to Allianz if it had established a technical basis for such relief. It is clear that Allianz was dissatisfied with the Assessor's refusal of the adjournment applications made prior to and at the assessment conference on 7 December 2005. Those were decisions, however, which lay within the Assessor's discretionary powers. The assessment hearing proceeded on the merits and Allianz participated fully in it. The hearing was completed except for the claim for interest which Allianz proposed ought be dealt with at a later time. 229 Since 30 December 2005, Allianz has adopted a stance, or stances, designed to advance its own interests to the detriment of Mr Crazzi's interest. This is to be expected in disputed insurance claims, even under a statutory scheme such as that contained in the MAC Act. However, there is a somewhat opportunistic element revealed in the way in which Allianz has approached the problems which have evolved from its own submission that the claims assessment process should be fragmented. 230 In the context of application of the slip rule to cure an obvious mistake, Hodgson JA (Sheller and Beazley JJA agreeing) observed in Ambulance Service of NSW v Daniel, at paragraph 7, that a party should have promptly acknowledged an obvious mistake made in its favour and should have co-operated in having the mistake and order vacated. In my view, this proposition may be called in aid by Mr Crazzi in the present case with respect to the approach which Allianz ought to have taken immediately after it became apparent, on 30 December 2005, that Assessor Flynn had overlooked the claim for interest which had been deferred on the application of Allianz. 231 In the result, the certificate and statement of reasons which issued on 23 March 2006 operated to the advantage of Allianz in a number of respects. Firstly, it had the opportunity to resist the claim for interest by reference to the offer of settlement made on 6 February 2006. Allianz would not have been able to adopt this stance if the claim for interest had been argued on 7 December 2005. Secondly, there was a correction of a calculation error which reduced the award of damages to be paid by Allianz. The fact that this calculation error was capable of being remedied under s.94(6) MAC Act ought not, for discretionary reasons, assist Allianz in these proceedings. 232 I am conscious that, by February 2006, a further medical assessment under s.62 MAC Act had been approved. No doubt, Allianz wished to maximise the prospect that the s.62 process might thereafter operate to its financial advantage. However, Allianz was only in a position to agitate that issue after 30 December 2005 because of the fragmentation of the assessment process which Allianz had itself initiated, followed by the Assessor's failure to hear and determine the interest claim. 233 The disadvantages which may flow from fragmentation of civil litigation, including unexpected complications, have been emphasised: Tepko Pty Limited v Water Board (2001) 206 CLR 1 at 55. The present case highlights the additional potential for complication where part of a claim for damages under the MAC Act is placed to one side for consideration separately from the balance of the claim. It is apparent that the claims assessment process under Part 4.4 MAC Act envisages a single decision-making process by an assessor leading to the issue of a single s.94 certificate and statement of reasons. Had that approach been adhered to in the present case, the present controversy could have been avoided. Conclusion 234 I am not satisfied that Allianz has demonstrated an entitlement to the declaratory and prerogative relief sought in the Summons. A consequence of this conclusion is that the certificate issued by Assessor Flynn on 23 March 2006 is valid and that Mr Crazzi has accepted that certificate for the purposes of s.95(2)(b) MAC Act. 235 I make the following orders: (a) Summons dismissed; (b) the Plaintiff is ordered to pay the costs of the First Defendant; (c) no order as to the costs of the Second and Third Defendants. ********** 09/10/2007 - In paragraph 5, there was an incorrect reference to a provision under the Uniform Civil Procedure Rules 2005 - Paragraph(s) Paragraph 5 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.