Supreme Court New South Wales Medium Neutral Citation: IAG Ltd v Riley [2013] NSWSC 684 Hearing dates: 30 May 2013 Decision date: 13 June 2013 Jurisdiction: Common Law Before: Davies J Decision: (1) An order in the nature of certiorari removing the determination of the Review Panel of the Motor Accidents Authority dated 10 August 2012 in respect of the First Defendant into this court and quashing that determination. (2) An order in the nature of mandamus remitting the Plaintiff's Application for Review of Assessor Fitzsimons' assessment of 18 April 2012 to the Third defendant for reallocation of the Application for determination according to law. (3) An order that the First Defendant pay the Plaintiff's costs of the proceedings. (4) The First Defendant is to have a certificate under the Suitors' Fund Act if otherwise so entitled. (5) No order in relation to the costs of the Second and Third Defendants. Catchwords: ADMINISTRATIVE LAW - judicial review - prerogative relief - determination of Review Panel under the motor Accidents Act - whether Panel misapprehended its task - failure to address arguments set out in Application for Review - ignoring of relevant matters - inadequacy of reasons on review - constructive failure to exercise jurisdiction - failure to accord procedural fairness - determination quashed - review remitted for determination Legislation Cited: Motor Accidents Compensation Act 1999 Cases Cited: AAMI Ltd v Ali [2012] NSWSC 969 Campbelltown City Council v Vegan [2006] NSWCA 284; 67 NSWLR 372 Craig v South Australia (1995) 184 CLR 163 Davie v Lord Provost, Magistrates and Councillors of the City of Edinburgh 1953] SC 34 Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26; (2003) 197 ALR 389 Ex Parte Hebburn Ltd; Re Kearsley Shire Council (1947) 47 SR (NSW) 416 Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305; 52 NSWLR 705 Minister for Immigration and Multicultural Affairs v Yusuf ]2001] HCA 30; (2001) 206 CLR 323 Mitrovic v Motor Accidents Authority of New South Wales [2012] NSWSC 1231 Category: Principal judgment Parties: IAG Ltd t/as NRMA Insurance (Plaintiff) Zoe Jayde Riley (First Defendant) Ian Cameron, Michael Fearnside, Joseph Scoppa, in their capacity as a "medical assessors review panel" of the Motor Accidents Authority of New South Wales (Second Defendant) Motor Accidents Authority of New South Wales (Third Defendant) Representation: Counsel: M Robinson SC & B Wilson D Toomey (First Defendant) Submitting Appearance (Second Defendant) Submitting Appearance (Third Defendant) Solicitors: Sparke Helmore (Plaintiff) Stacks The Law Firm (First Defendant) Crown Solicitors Office (Second and Third Defendants) File Number(s): 2012/368607 Judgment 1This is an application for prerogative relief by a Motor Accidents Insurer directed to three members of a Medical Assessors Review Panel of the Motor Accidents Authority ("MAA") arising from a certificate that the Panel issued on 10 August 2012. Both the Review Panel (the Second Defendant) and the Motor Accidents Authority have filed submitting appearances. The only active Defendant is the injured person (the First Defendant). Background 2The First Defendant was injured in a motor vehicle accident on 2 September 2006. She was walking along the street with her mother when a car, which had been reversing, hit a garbage bin and she was pinned underneath it. As a result of the accident she suffered a basal skull fracture, a right occipital fracture and a frontal haemorrhage. 3The First Defendant ultimately made a claim on the driver's insurer (the Plaintiff) and the matter has been going through the medical assessment process. 4On 25 October 2010 Assessor Dr Robin Fitzsimons (a neurologist) issued a certificate under Part 3.4 of the Motor Accidents Compensation Act 1999. Dr Fitzsimons listed the injuries from the motor accident as being: Head injury - with skull fracture, left frontal lobe haemorrhage, micro haemorrhages in parietal lobes, and left olfactory nerve injury. 5Dr Fitzsimons declined pursuant to s 132(3) of the Act to make an assessment of the degree of permanent impairment resulting from those injuries. She said the degree of permanent impairment of those injuries should be capable of being assessed in about a year or after the First Defendant had been in employment for a substantial proportion of time. 6Despite declining to assess permanent impairment Dr Fitzsimons took a full history and conducted a clinical examination. She also provided her conclusions. 7She noted that the First Defendant was not aware of any difficulties with a sense of smell but Dr Fitzsimons found that on testing the sense of smell there was a minor subjective diminution of smell by the left nostril relative to the right. 8Dr Fitzsimons' conclusions in relation to the issue regarding the sense of smell was this: Given the totality of evidence (including minor impairment of smell by the left nostril on examination, and displacement of olfactory nerve, apparently by the injured/gliotic left frontal lobe seen on MRI) I therefore think the essentially asymptomatic, but nevertheless real, mild impairment of sense of smell via the left nostril is, on probability, likely to reflect trauma to the left olfactory nerve. 9Dr Fitzsimons assessed the current impairment of the First Defendant's injuries, with the head injury and left frontal lobe being assessed as 10% and the left olfactory nerve being assessed at 1%. The total degree of then current impairment of injuries caused by the motor accident was 11%. 10The First Defendant returned to see Dr Fitzsimons on 5 April 2012 and Dr Fitzsimons issued a further certificate on 18 April 2012. 11She again noted that the First Defendant denied noticing a problem with her sense of smell. However, on examination Dr Fitzsimons found that the First Defendant was able to smell herbs normally through the right nostril but could not smell them at all through the left nostril. She said that the First Defendant did not then have a cold or nose infection. 12Dr Fitzsimons' conclusion was that the First Defendant had diminished or absent olfaction by the left nostril. Even though that was not worrying her on a day to day basis Dr Fitzsimons thought that it was entirely consistent with the geographic displacement of the left olfactory nerve. 13Dr Fitzsimons reviewed some documentation including a report from the psychiatrist Dr Jungfer of 29 January 2010 and a report of Mr Rawling, a psychologist, of 19 May 2010. In relation to Mr Rawling she said this: He noted that since the accident there has been a decline in her psychosocial adjustment in general and school performance in particular in the absence of any acquired impairment of cognitive function and that this might represent depression triggered by the accident or an amotivational syndrome and a degree of disinhibition and egocentricity arising from the frontal lobe damage. He would favour the latter but it was a difficult decision. 14Under the heading "Conclusions - Diagnosis and Causation" Dr Fitzsimons said this: There is no doubt that, as previously discussed, that (sic) Zoe Riley sustained a serious head injury with skull fracture, left frontal lobe haemorrhage, micro-haemorrhages in the parietal lobe, and left olfactory nerve displacement in the subject accident. I note that the most recent MRI scan reportedly shows no abnormality, although there is no detailed discussion of any sulcal widening or otherwise. Notwithstanding this reportedly "normal" MRI scan, there is no doubt that she sustained an earlier small left frontal haemorrhage, which would have completely absorbed and has apparently left no MRI evidence of its occurrence. The hemosiderin [iron breakdown products] previously identified are not now present. Although this indicates that damage to the brain was restricted, it nevertheless does not negate the fact of its having occurred. I agree with Mr. Rawling and others that her primary problem now would appear to be "amotivational", as manifest for instance in the fact that she has not found a way of obtaining her approval to work in child care centres in Victoria, albeit at the cost of $90. It would also be manifest in her failure to continue with what was formerly a major hobby of photography. See further discussion below. 15In discussing the permanency of impairment Dr Fitzsimons said this: 1. I consider the "amotivational state" described above, and also referred to by Drs Steele and Jungfer, and Mr Rawling, to be stabilised. It classifies within the "mild limitations of daily social and interpersonal functioning" [0 -14% WPI, Table 3, P.142, AMAG 4]. It is the same or about the same as when I last assessed her. Given the manner in which it is affecting her application for appropriate accreditation for employment [notwithstanding her otherwise excellent "attitude"] and her pursuit of photography as a hobby, I would now consider 11% WPI to be appropriate. 16Accordingly, in her final assessment she put a figure of 11% on brain injury [emotional/behavioural] and 1% on the left olfactory nerve. 17The insurer sought a review of that assessment. 18It is necessary to set out in some little detail parts of the application for a Review of Medical Assessment lodged by the Plaintiff. 6. REVIEW INFORMATION Why are you seeking a review? Relevant page/paragraph of MAS certificate. Page 12 regarding the left olfactory nerve - Assessor Fitzsimons found 1% whole person impairment. Page 9 regarding the head injury - Assessor Fitzsimons recorded that the plaintiff's primary problem now would appear to be "amotivational" as manifest for instance in the fact that she has not found a way of obtaining her approval to work in child care centres in Victoria, albeit at a cost of $90. She also found that it would also be manifest in her failure to continue with what was formerly a major hobby of photography. Further, at page 10, in respect to the head injury, Assessor Fitzsimons classified the plaintiff within the "mild limitations of daily social and interpersonal functioning". She then stated that it is "the same or about the same as when I last assessed her". She then however increased her assessment for the head injury from 10% in her first certificate to 11% in her second certificate. What is the error or mistake? In respect of the left olfactory nerve, it is submitted that the Assessor has incorrectly apportioned 1% whole person impairment to the left olfactory nerve as there is no evidence supporting the suggestion that the plaintiff's condition is interfering significantly with daily activities. Assessor Fitzsimons recorded that the plaintiff has diminished or absent olfaction via the left nostril, as observed previously She reported that "even though this is not worrying her on a day-to-day basis, it is entirely consistent with the geographic displacement of the left olfactory nerve" Further at page 11, in respect of the left olfactory nerve, Assessor Fitzsimons recorded that the plaintiff has been consistently unable or barely able to smell through the left nostril. She reported that 'she is at present not normally aware of this, although she may become so in the future". The Assessor is also in error here as her role is to assess impairment on the day of the assessment and not to speculate as to what may occur in the future. The AMA IV Guide at page 144, directs that an impairment estimate for anosmia or parosmia should only be given if the anosmia interferes significantly with daily activities. It is submitted that there should be 0% whole person impairment. The Assessor has applied the correct section of the AMA IV guide but if the Proper Officer considers that 9 3c applies the following submissions are relied upon. If the assessment of the anosmia was to be earned out under 9 3c of AMA IV then a finding of impairment is prevented as Detection by the patient of any odor or taste, even thought he or she cannot name it; precludes a finding of permanent impairment. It is apparent that Assessor Fitzsimmons found the Claimant can smell through her left nostril so no impairment can be found under 9.3c. In respect to the head injury, it is submitted that the Assessor's findings in respect to the brain/head injury are in error. Assessor Fitzsimons has placed great importance on the fact that the plaintiff is 'amotivational' as manifest in the fact that she has not found a way of obtaining her approval to work in child care centres in Victoria, albeit at a cost of $90 and also because of her failure to continue with what was formerly a major hobby of photography. The Assessor has disregarded significant evidence that the Claimant is motivated. "Ms Riley moved to Melbourne...to get away from Taree...She said she wanted to try new things'." Para 1, pg 3) "She is currently looking for a job..." (Para 2, pg 3) Ms Riley's relationship with her boyfriend is "going really good' (Para 2, pg 3) Ms Riley has been babysitting in Melbourne with three young children and "it is going well" (Para 4, pg 3) "She said that in order to get such a certificate she would have to pay $90 [which she does not have spare] and apply by filling forms She identified the primary reason for not having this approval as being the $90 involved'' (Para 4, pg 3) "She sometimes does some photography, but she is not really interested. In fact she did not take her camera with her to Melbourne" (Para 6, pg 3) Ms Riley was able to catch the train from Sydney airport to St James station to get to the MAS assessment (Para 1, pg 4) "She had no difficulty working out the times and organisation...for the 11am appointment" (Para 2, pg 4) "She would go shopping..." (Para 5 pg 4) "She has a bank account and organizes it satisfactorily" (Para 7, pg 4) "She said she reads books and magazines..." (Para 2, pg 5) She has completed a Certificate 3 in Child Care - (Para 2 pg 7)) Assessor Fitzsimons has failed to provide a sound or consistent clinical reasoning for why she has assessed Ms Riley as having an 11% 'Emotional or Behavioural Impairment'. In addition, Assessor Fitzsimons clearly states that Ms Riley's impairment "is the same or about the same as when I last assessed her ' (Para 5, pg 10) Assessor Fitzsimons appears to rely solely on the fact that Ms Riley has not obtained her 'Victorian Working With Children Check' and that she was not now pursuing photography as a hobby as being her clinical reasoning for an impairment rating of 11%' She has disregarded all of the evidence above of motivation by the Claimant including the completion of study. This is not inconsistent with Ms Riley's own documented reasons for not obtaining this certificate and that she has merely lost interest in photography. Assessor Fitzsimons has failed to provide any medical evidence to indicate that this change in interest is, in fact, related to any cognitive pathology. It is clear from Ms Riley's own comments, as documented by Assessor Fitzsimons, that her primary reason for not obtaining the necessary certificate, was purely financial and not due to a lack of desire to pursue an Application if the $90.00 was available to her. How is this material to the outcome of the assessment? In respect to the left olfactory nerve assessment, it is submitted that by deducting 1%, together with the further submissions made in respect to the remaining findings of the assessment, that this would not entitle the plaintiff to a finding for non-economic loss. In respect to the head injury, it is submitted that the Assessor's findings in respect to the head injury are erroneous and that this is material to the outcome as the Assessor clearly states at page 10 of her Certificate of 18 April 2012 that the plaintiff's "amotivational state" is the "same or about the same as when I last assessed her". If the Assessor had again found the plaintiff to have 10% whole person impairment, in line with the earlier Certificate, and if the submissions above regarding the left olfactory nerve assessment are accepted, the plaintiff would not be entitled to damages for non economic loss. 19On 2 July 2012 the Proper Officer of the Medical Assessment Service referred the matter to a medical review panel. In the Proper Officer's Statement of Reasons the following appeared: INTRODUCTION 1. The claimant, Zoe Jayde Riley, was injured in a motor vehicle accident on 2 September 2006. On 5 April 2012 Assessor Robin Fitzsimons found that the degree of permanent impairment of the claimant was 12% and therefore the claimant's degree of permanent impairment was greater than 10%. 2. The applicant now seeks to have the assessment of Assessor Robin Fitzsimons reviewed on the basis that it is incorrect in a material respect. The applicant relies on the particulars set out on the application form and attached submissions. 3. The respondent does not agree that a review is warranted in this matter and addresses the issues raised by the applicant. 4. Section 63 of the Act provides that if the Proper Officer is satisfied that there is reasonable cause to suspect that the medical assessment is incorrect in a material respect, the review application will be accepted and referred to a Medical Review Panel. ISSUES IN DISPUTE 5. The applicant submits that the medical assessment is incorrect in the following respects: · Assessment of left olfactory nerve · Assessment of head injury REASONS FOR DECISION Olfactory nerve 6. The applicant submits there is no evidence supporting the suggestion that the claimant's condition is interfering significantly with her activities of daily living (ADLs), as is required for assessment of anosmia as per page 144 of the AMA 4 Guides. The applicant notes the Assessor reported the claimant is not normally aware of her loss of sense of smell. The applicant also refers to the assessment of olfaction and taste with respect to the ENT Chapter of the AMA 4 Guides, page 232, which states that detection of any odour or taste precludes finding of permanent impairment. 7. The respondent submits there is objective evidence of damage to the olfactory nerve. 8. I note clause 1.2 of the MAA Guidelines directs that the MAA Guidelines are definitive 'with regard to the matters they address. Where they are silent on an issue, the AMA 4 Guides should be followed'. 9. I note clause 5.19 of the MAA Guidelines directs (bold type being directive as per clause 1.3) that assessment of olfaction and taste is covered in sections 6.15 and 6.16 of the MAA Guidelines, and that these sections do not comment upon consideration of ADLs, but serve to clarify the range of assessment values for loss of sense of taste and loss of sense of smell. 10. As noted by the applicant, the AMA 4 Guides provide that an impairment assessment for anosmia or parosmia should be given only if the anosmia interferes significantly with daily activities. The MAA Guidelines are silent on the matter of ADLs, indicating that the AMA 4 Guides should be followed. 11. Assessor Fitzsimons has provided clear reasons for assessment of the olfactory nerve as part of head injury, noting that it is vulnerable to injury due to its location (pp.9, 11). I note however, the Assessor states that whilst the damage is consistent and such damage is frequently functionally irreversible (p.11), the claimant denied noticing a problem with her sense of smell (p.5). I also note the Assessor does not provide comment on the effect on ADLs. In the absence of comment on the claimant's ADLs, the applicant has persuaded me of reasonable cause to suspect error, which in isolation, is not sufficient to cross the threshold for non-economic loss. 12. However in the judgment of Meeuwissen v Boden [2010] NSWCA 253, the Court of Appeal found that any alleged error in the assessment that is capable of changing the level of impairment was an error that was not "trivial, insignificant or immaterial" [at 25]. In other words, even if the Proper Officer is of the view that the alleged error is not capable of crossing the 10% threshold, they should nevertheless be satisfied that there is reasonable cause to suspect that the error is "incorrect in a material respect". 13. Accordingly, whilst I consider that the alleged error in this assessment is not capable of crossing the threshold, it does conform with the findings in Meeuwissen. 14. As to the other grounds raised in the application, these will be addressed by the Review Panel, once convened. CONCLUSION 15. Accordingly, as to this review application, I am satisfied that there is reasonable cause to suspect that the medical assessment is incorrect in a material respect. 20On 10 August 2012 the Review Panel issued its certificate. 21The Panel identified the assessment by Dr Fitzsimons which was under review by the Panel. They then specified that the dispute identified by the parties was as follows: The Panel considered the matters cited in the application for review and noted that the following aspects of the assessment were disputed: Permanent impairment, specifically the method of assessment of anosmia. 22The certificate went on to say this: 3. Matters Considered and Decided by the Panel The Review Panel considered afresh all aspects of the assessment under review. a. Evidence considered The Panel noted that the application for review related to the evaluation of the percentage impairment related to the anosmia experienced by Ms Riley following the traumatic brain injury. As the Panel was conducting a "de novo" review it noted all the available documents. It concluded that there was adequate documentation that injuries in the subject motor vehicle crash were a significant traumatic brain injury with impairment related to this with reference to emotional and behavioural functioning as well as an impairment in the sense of smell (anosmia). ... The Panel considered all of the available evidence and decided that a re-examination of the claimant was not necessary because there was sufficient evidence within the documentation and Assessor Fitzsimons' certificate, and the other available reports, to make the correct decision. ... c. Panel deliberations ... The Panel discussed the method of impairment assessment of loss of smell as set out in the MAA Guidelines, section 6.15 and the AMA4 Guides, page 232. The MAA Guidelines, section 6.15, state that the assessor may allocate 1% to 5% WPI for loss of sense of smell. The Panel concluded that this section of the MAA Guidelines is definitive in relation to this issue, as this interpretation is in keeping with Clause 1.2 of the MAA Guidelines. Therefore the Panel agreed with Assessor Fitzsimons' approach to evaluation of loss of smell and the permanent impairment evaluation that she provided. While it was the Panel's finding that section 6.15 is definitive, it considered the impact of the loss of smell on Ms Riley. It concluded that she had been aware of loss of smell and it was having some impact on her life based on the description provided in the report of Dr Jungfer (which pre-dated the assessment of Dr Fitzsimons). Furthermore the Panel discussed the interpretation of sensory losses in vision, hearing and smell across the MAA Guidelines and the AMA4 Guides. It noted that ADL impairment was not a factor to consider in the evaluation of visual or hearing impairment. Therefore the Panel's interpretation that Section 6.15 is definitive is consistent with the other sections of the guides. The Panel considered the details of the loss of smell. It agreed that there was partial loss of sense of smell (microsmia or hyposmia) and formed the opinion that this partial loss may be bilateral in view of the history of significant traumatic brain injury and the reporting of loss of smell to Dr Jungfer. In view of the above and the MRI findings the Panel considered that the impairment evaluation for loss of smell of 1% WPI by Assessor Fitzsimons was appropriate and confirms the original assessment. The Panel considered Assessor Fitzsimons' assessment of emotional and behavioural impairment due to the traumatic brain injury. It concluded that the the impairment evaluation provided by Dr Fitzsimons was correct because Ms Riley had a significant brain injury and there were residual impairments that were impairments causing "mild limitation of daily social and interpersonal functioning" as shown in Table 3, page 142 AMA4 Guides. Therefore the total permanent impairment is 12% WPI. (emphasis added) 23The Panel then said that it considered the following injuries gave rise to permanent impairment: Head injury - with skull fracture, left frontal lobe haemorrhage, micro haemorrhages in parietal lobes, and left olfactory nerve injury. 24The Panel found 11% WPI in respect of the head/brain injury and 1% WPI in respect of the olfaction. The Panel noted that their findings of the degree of permanent impairment of the injuries were the same as those of Assessor Fitzsimons. Errors alleged 25The Plaintiff asserts a number of errors by the Review Panel some of which are said to be jurisdictional errors. 26The Summons identified the errors as follows: (a) The First Error - The Panel erred in its reasons for decision at the top of page 3 in that it failed to identify the nature of or extent of the disputed matters that then existed as between the claimant and the insurer. The Panel only identified "the method of assessment of anosmia'" (loss of the sense of smell). The Panel failed to identify the other significant matters that the plaintiff complained about relating to the claimant's head injury. Accordingly, the Panel failed to take into account relevant considerations, namely the extent of the claimant's head injury and, as it formed part of the insurer's case before the MAA, this was a significant error of law or jurisdictional error. In addition, the Panel denied the plaintiff natural justice or procedural fairness in that it did not first inform the plaintiff that it would not have regard to the submissions of the plaintiff concerning the head injury. Also, the Panel asked itself the wrong question and led itself into legal error. Alternatively, the Panel constructively failed to exercise its statutory power in this regard. By reason of this error, the decision is invalid and should be set aside. (b) The Second Error - The Panel erred in its reasons for decision in that it failed to take account of or have regard to the plaintiffs case concerning the claimant's head injury as was set out in the written application to the proper officer of the MAA. The Panel failed to have regard to a relevant consideration it had to take into account, and it denied the plaintiff natural justice or procedural fairness by failing to give notice of its proposed course of deliberations. The Panel also asked itself the wrong question and led itself into legal error, or it constructively failed to exercise its statutory power. By reason of this error, the decision is invalid and should be set aside. (c) The Third Error - The Panel erred in its reasons for decision in the middle of page 3 where it said it looked at documents and "concluded" that it was adequate to establish head injury and loss of smell in that it failed to set out the reasons for its conclusions as was required by section 61(9) of the Act. By reason of this error, the decision is invalid and should be set aside. (d) The Fourth Error - The Panel erred in its reasons for decision at the bottom of page 3 where it determined that it agreed that causation had been established for the "listed injuries" but it failed to set out the reasons for its conclusions as it was required to by section 61(9) of the Act. By reason of this error, the decision is invalid and should be set aside. 27The Plaintiff initially identified a fifth error which was that the Panel erred in making a determination based on the claimant's presentation to another a medical practitioner long before the date of Panel's assessment. However, that ground or error was abandoned at the hearing. What was set out in the Summons concerning the alleged errors (above) was a convenient summary of the Plaintiff's submissions. 28The Plaintiff further submitted that the Court would not need to go beyond a determination of the first error because it was the most obvious and most egregious error. I took the submission to be that the other three errors identified were comprehended by the first error. 29The First Defendant submitted that the Panel properly understood its task because it identified the permanent impairment of the First Defendant generally that was under review. The Panel saw itself as being involved in a de novo review and it "considered Assessor Fitzsimons' assessment of emotional and behavioural impairment due to the traumatic brain injury". 30In relation to the extent of the reasons required to be given the First Defendant referred to what Basten JA said in Campbelltown City Council v Vegan [2006] NSWCA 284; 67 NSWLR 372 at [121]-[122], particularly the statement that [122]...the reasons need not be extensive or provide detailed explanation of the criteria applied by medical specialists in reaching a professional judgment. 31The First Defendant submitted that the Review Panel adopted Dr Fitzsimons' reasons and, by implication, it was legitimate to do so. This was said to be apparent because they did not do their own clinical assessment and were entirely reliant upon her assessment. 32The First Defendant pointed to various places in the Review Panel's Certificate where reference was made to the brain injury to show that that matter was not overlooked. Legal principles 33In Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26; (2003) 197 ALR 389 the Plaintiff had sought refugee status on the basis that he belonged to a social group in Russia called "Businessmen in Russia". It was more particularly described as a group of businessmen who publicly criticised and sought reform of the law enforcement authorities to compel them to take effective measures to prevent crime and to protect Russian businessmen who protested. 34The Tribunal rejected his application on the basis that he was simply a member of a group of businessmen in Russia without considering the further narrow group identified. The Plaintiff sought relief under s 75(v) of the Constitution. 35The joint judgment of Gummow and Callinan JJ said this: [24] To fail to respond to a substantial, clearly articulated argument relying upon established facts was at least to fail to accord Mr Dranichnikov natural justice. A failure to accord natural justice did not provide a statutory basis for a review of a decision of the Tribunal. This followed from the language of s 476(2)(a) of the Act (as it was when the applications were made) which provided as follows: "(2) The following are not grounds upon which an application may be made under subsection (1): (a) that a breach of the rules of natural justice occurred in connection with the making of the decision". [25] The question remains however whether what occurred, either characterised as a failure to accord natural justice or as that, and more, which we consider it to be, including a constructive failure to exercise jurisdiction, entitles Mr Dranichnikov to relief under s 75(v) of the Constitution. It is to that question that we will now turn. [26] At the outset it should be pointed out that the task of the Tribunal involves a number of steps. First the Tribunal needs to determine whether the group or class to which an applicant claims to belong is capable of constituting a social group for the purposes of the Convention. That determination in part at least involves a question of law. If that question is answered affirmatively, the next question, one of fact, is whether the applicant is a member of that class. There then follow the questions whether the applicant has a fear, whether the fear is well founded, and if it is, whether it is for a Convention reason. [27] The Tribunal failed to decide the first question. It decided another question, whether Mr Dranichnikov's membership of a social group, namely, of "businessmen in Russia" was a reason for his persecution and relevantly nothing more. The Tribunal should have decided the matter which was put to it, whether Mr Dranichnikov was a member of a social group consisting of entrepreneurs and businessmen who publicly criticised law enforcement authorities for failing to take action against crime or criminals. ... [32] The failure of the Tribunal to exercise jurisdiction is also analogous to the situation in Minister for Immigration and Multicultural Affairs v Bhardwaj. In that case the Tribunal effectively denied Mr Bhardwaj a hearing of his application for an adjournment, and, as a result, a hearing of his substantive case of the kind to which he was entitled. The Tribunal's decision to affirm the Minister's decision to cancel Mr Bhardwaj's student visa was therefore made not just in breach of the rules of natural justice, but without affording him a hearing of the kind the Act required he be given. The Tribunal failed to give Mr Bhardwaj a hearing of his application for an adjournment as if it had never been made. It accordingly did not exercise jurisdiction in respect of a live application validly made to it. 36In Mitrovic v Motor Accidents Authority of New South Wales [2012] NSWSC 1231 Harrison AsJ discussed the ways in which jurisdictional error could be shown. Her Honour said: [57] Applying the wrong legal test and failing to make required determinations under an Act each constitute errors of law sufficiently serious as to also constitute jurisdictional errors: Craig v South Australia (1995) 184 CLR 163 at 179; Kirk v Industrial Relations Commission of New South Wales [2010] HCA 1; (2010) 239 CLR 531 at [60] to [70]. Identifying a wrong issue or asking a wrong question in a way that affects the exercise of power is to make an error of law: Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 at [82]. [58] The concept of jurisdictional error also includes "constructive failures to exercise jurisdiction" - see, for example, Jordan CJ in the leading case of Ex parte Hebburn Ltd; Re Kearsley Shire Council (1947) 47 SR (NSW) 416; (1947) 64 WN (NSW) 107. In that case Jordan CJ said at 420: I quite agree that the mere fact that a tribunal has made a mistake of law, even as to the proper construction of a statute, does not necessarily constitute a constructive failure to exercise jurisdiction ... But there are mistakes and mistakes; and if a mistake of law as to the proper construction of a statute investing a tribunal with jurisdiction leads it to misunderstand the nature of the jurisdiction which it is to exercise, and to apply a "wrong and inadmissible test": ... or to "misconceive its duty", or "not to apply itself to the question which the law prescribes": The King v War Pensions Entitlement Appeal Tribunal; or "to misunderstand the nature of the opinion which it is to form": The King v Connell (1944) 69 CLR 407 at 432, in giving a decision in exercise of its jurisdiction or authority, a decision so given will be regarded as given in a purported and not a real exercise of jurisdiction, leaving the jurisdiction in law constructively unexercised, and the tribunal liable to the issue of a prerogative writ of mandamus to hear and determine the matter according to law ... [59] This passage has been adopted in this court (see for example Galluzzo T/As Riverwood Chemworld Chemist v Dianne Little (No 2) [2012] NSWSC 324 at [19]) and by the High Court. In Re Minister for Immigration and Multicultural Affairs; Ex parte Miah [2001] HCA 22; (2001) 206 CLR 57, Gaudron J said at [80]: "The classic statement as to what constitutes constructive failure to exercise jurisdiction is that of Jordan CJ in Ex parte Hebburn Ltd; Re Kearsley Shire Council. That statement, which has been approved by this Court on numerous occasions identifies a constructive failure to exercise jurisdiction as occurring when a decision-maker 'misunderstand[s] the nature of the jurisdiction which [he or she] is to exercise, and ... applies] "a wrong and inadmissible test"... or ... "misconceive[s his or her] duty," ... or "[fails] to apply [himself or herself] to the question which the law prescribes"... or "... misunderstand[s] the nature of the opinion which [he or she] is to form"'." (citations omitted) [60] In Yusuf, Gaudron J said at [41]: "For the purposes of mandamus and prohibition, a tribunal is said to have failed to exercise its jurisdiction if it has wrongly denied the existence of its jurisdiction or mistakenly placed limits on its functions or powers. If the Tribunal wrongly holds it has no jurisdiction or is not authorised to make a particular decision, there is said to be 'an actual failure to exercise jurisdiction'. On the other hand, there is said to be a 'constructive failure to exercise jurisdiction' when a tribunal misunderstands the nature of its jurisdiction and, in consequence, applies a wrong test, misconceives its duty, fails to apply itself to the real question to be decided or misunderstands the nature of the opinion it is to form. A constructive failure to exercise jurisdiction may be disclosed by the Tribunal taking an irrelevant consideration into account. Equally, it may be disclosed by the failure to take a relevant matter into account." (emphasis added) 37In AAMI Ltd v Ali [2012] NSWSC 969 Beech-Jones J was considering a submission that the Proper Officer did not taken into account a particular report, that of Dr Lewin. Beech-Jones J said: [46] For reasons I will explain, I am not persuaded that the proper officer failed to take into account Dr Lewin's second report. However, at the outset it should be noted that there is nothing in the statutory scheme which imposed any obligation on the proper officer to consider the entirety of the evidentiary material placed before them when addressing a request under s 63(3) of the MAC Act. The authorities do not impose any such obligation either (see Allianz Australia Insurance Ltd v Cervantes [2012] NSWCA 244 at [22] per Basten JA, McColl and Macfarlan JJA agreeing). Instead, for this alleged form of error to give rise to invalidity it must be demonstrated that the alleged act of overlooking the relevant material flowed from some legal misconception about the function being exercised by the tribunal or administrative decision maker. Thus, in Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; 206 CLR 323 at 351, McHugh, Gummow and Hayne JJ stated at [82]: "It is necessary, however, to understand what is meant by "jurisdictional error" under the general law and the consequences that follow from a decision-maker making such an error. As was said in Craig v South Australia, if an administrative tribunal (like the Tribunal) 'falls into an error of law which causes it to identify a wrong issue, to ask itself a wrong question, to ignore relevant material, to rely on irrelevant material or, at least in some circumstances, to make an erroneous finding or to reach a mistaken conclusion, and the tribunal's exercise or purported exercise of power is thereby affected, it exceeds its authority or powers. Such an error of law is jurisdictional error which will invalidate any order or decision of the tribunal which reflects it.' 'Jurisdictional error' can thus be seen to embrace a number of different kinds of error, the list of which, in the passage cited from Craig, is not exhaustive. Those different kinds of error may well overlap. The circumstances of a particular case may permit more than one characterisation of the error identified, for example, as the decision-maker both asking the wrong question and ignoring relevant material. What is important, however, is that identifying a wrong issue, asking a wrong question, ignoring relevant material or relying on irrelevant material in a way that affects the exercise of power is to make an error of law. Further, doing so results in the decision-maker exceeding the authority or powers given by the relevant statute. In other words, if an error of those types is made, the decision-maker did not have authority to make the decision that was made; he or she did not have jurisdiction to make it. Nothing in the Act suggests that the Tribunal is given authority to authoritatively determine questions of law or to make a decision otherwise than in accordance with the law." (emphasis added) [47] The italicised portions of this passage emphasise that the task is not one of simply identifying evidentiary material that was relevant to the decision maker's task and then ascertaining whether it was referred to it in their reasons. It involves a process of determining whether or not it was considered and, if not, why it was not considered. The second inquiry is necessary because before jurisdictional error can be established it must be shown that there was, in the words of Craig, an "error of law" which caused the body to ignore the relevant material or, in the words of Yusuf, that the ignoring of relevant material happened "in a way that affects the exercise of the power". An example of this is to be found in Owen v Motor Accidents Authority (NSW) [2012] NSWSC 650, at [50] where Campbell J inferred from the failure of a review panel to consider certain material that it applied too narrow a test of causation. [48] There is considerable overlap between this form of error and a breach of natural justice or a constructive failure to exercise jurisdiction. This is so because aspects of those grounds can import a limited "obligation" to consider at least some of the evidentiary material placed before a decision maker (Cervantes at [19] to [22], per Basten JA). Thus, in Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26; 77 ALJR 1088, Gummow and Callinan JJ stated (at [24]) that "[t]o fail to respond to a substantial, clearly articulated argument relying upon established facts was at least to fail to accord Mr Dranichnikov natural justice." In Re Minister for Immigration and Multicultural Affairs; Ex parte Miah [2001] HCA 22; 206 CLR 57, Gaudron J at [81] stated that a failure in that case to address the substance of a person's claim for refugee status was "a clear case of constructive failure to exercise jurisdiction". Hence, and only by way of example, a failure to consider a critically relevant piece of evidence may have happened "in a way that affects the exercise of the power" (Yusuf) because it may reveal that an applicant's case was not addressed or was misunderstood. Consideration of the Review Panel's certificate 38In my opinion, the Review Panel's certificate is vitiated by error for the following reasons. 39Section 63 Motor Accidents Compensation Act 1999 relevantly provides: (3) The proper officer of the Authority is to arrange for any such application to be referred to a panel of at least 3 medical assessors, but only if the proper officer is satisfied that there is reasonable cause to suspect that the medical assessment was incorrect in a material respect having regard to the particulars set out in the application. (3A) The review of a medical assessment is not limited to a review only of that aspect of the assessment that is alleged to be incorrect and is to be by way of a new assessment of all the matters with which the medical assessment is concerned. (4) The review panel may confirm the certificate of assessment of the single medical assessor, or revoke that certificate and issue a new certificate as to the matters concerned. ... (6) Section 61 applies to any new certificate or new combined certificate issued under this section. 40The proper officer under subs (3) has only to be satisfied that the medical assessment is incorrect in a material respect but the terms of subs (3A) provide for a complete review of the assessment of the assessor. 41In the first instance, I consider that the task the Review Panel perceived itself to have was not the matter that was referred to it. It identified the dispute as being: Permanent impairment, specifically the method of assessment of anosmia. 42Even if it is assumed that the dispute was seen by the Review Panel as relating to permanent impairment from both of the identified injuries (head/brain and olfaction), the dispute was not specifically about the method of assessment of anosmia. Any change in the evaluation of Whole Person Impairment for the anosmia would not, without a consideration of the brain injury and its sequelae, reduce the overall evaluation below the relevant threshold. 43The Review Panel seem to have been led from their correct path by the Proper Officer's Statement of Reasons because those reasons concentrated almost exclusively on the olfactory issue. However, as noted above the Proper Officer had only to find the assessment was wrong in a material respect. That was merely a gateway issue. Once the matter was referred to the review Panel there was to be a new assessment of all the matters with which the assessment was concerned. 44That being said, even a cursory reading of the Proper Officer's reasons would have shown that paragraph 14 referred to "other grounds raised in the application", that is, grounds not concerned with the olfactory nerve. 45Moreover, a reading of the Plaintiff's Application for a Review clearly identified three areas of the assessment that were challenged. Two of those (those identified as being on page 9 and 10) related to matters other than the olfactory nerve. Further, in the part of the application where the error or mistake was identified more than half of the page was devoted to the head injury and particular findings made by the Assessor together with submissions about those findings,. Finally, on the page where the applicant for review was to discuss materiality for the outcome of the assessment, more than half of the discussion related to the head injury and the finding of an "amotivational state" by the Assessor. 46The absence of any discussion in the Review Panel's Certificate concerning the head injury itself is confirmation of the view that the Panel misapprehended the full extent of the dispute that it needed to assess. Clearly it could not ignore the head injury in its final conclusion because of its obligations under s 63(4) either to confirm the certificate of assessment of the medical assessor or to revoke that certificate and issue a new one. The Review Panel felt that it was able to confirm the assessor's certificate by simply concluding that her impairment evaluation in relation to the head injury was correct, not by any analysis or consideration of the material relevant to the head injury. 47My conclusion is that the material related to the head injury was not considered by the Review Panel and that it was not considered because the Review Panel misapprehended its task. That amounts to a constructive failure to exercise jurisdiction because the Panel misconceived its duty (Ex Parte Hebburn Ltd; Re Kearsley Shire Council (1947) 47 SR (NSW) 416 at 420; Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323 at [41]). 48Secondly, the assessment of the head injury contained in the penultimate paragraph of s 3(c) of the certificate (the paragraph which I have highlighted in paragraph [22] above) was reached with virtually no reasons given for that conclusion. All that was said was that Dr Fitzsimons' evaluation was correct because the claimant had a significant brain injury and that there were residual impairments that caused "mild limitation of daily social and interpersonal functioning". That is not so much a reason as a statement of conclusion or as Heydon JA (as his Honour then was) would have described it (echoing Lord President Cooper in Davie v Lord Provost, Magistrates and Councillors of the City of Edinburgh [1953] SC 34 at 40), a bare 'ipse dixit' (Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305; 52 NSWLR 705 at [87]. 49Where the Review Panel does not even refer to the finding of an "amotivational state" nor to the change in assessment by Dr Fitzsimons of a 10%-11% WPI for the head injury (from the October 2010 to the April 2012 certificates) it cannot be said that any proper reasons have been provided for the conclusion in the penultimate paragraph. Section 61(9) (imported into the functions of the Review Panel by s 63(6)) mandated reasons for any finding by the Panel. 50I do not consider, in that regard, that the minimum legal standard referred to by Basten JA in Campbelltown Council v Vegan at [122] has been met. Of more significance is what his Honour said in the preceding paragraph, that [w]here more than one conclusion is open, it will be necessary for the Panel to give some explanation of its preference for one conclusion over another... 51In circumstances where Dr Fitzsimons had increased her evaluation of Whole Person Impairment for the brain injury from 10% to 11% between her two Certificates without articulating clearly or at all why she had done so, it was incumbent upon the Review Panel to do and say more than that they concluded her evaluation was correct. That is the more so when that was precisely one of the criticisms made of her assessment in the Application for Review. The absence of proper reasons gives rise to an entitlement to prerogative relief (Vegan at [105]), and one reason for that may be that it amounts to a denial of procedural fairness (Vegan at [105] and [118]). 52That leads to my third reason for determining that the Review Panel erred. Nothing in the Panel's Certificate suggested that they gave any attention at all to the matters advanced by the Plaintiff in its Application for Review concerning the brain injury. The failure to mention the somewhat unusual term "amotivational" is a clear indication of that. The overwhelming complaint made by the Plaintiff in the Application for Review concerning the brain injury was the conclusion regarding the description of the First Defendant as "amotivational". 12 statements made by Dr Fitzsimons were set out as challenging her conclusion in that regard. The Review Panel made no comment about the asserted inconsistency of those statements or findings with Dr Fitzsimons' conclusion to the opposite effect of them. 53If the Review Panel did not fail to address the correct issue they at least ignored relevant matters when making their assessment in a way that affected its exercise of power: Craig v South Australia (1995) 184 CLR 163; AAMI Ltd v Ali at [47]. There was, in that way, a failure to respond to a substantial clearly articulated argument based on what was identified in the Application for Review as being contained in Dr Fitzsimons' Certificate. Such a failure was a constructive failure to exercise jurisdiction or amounted to a failure to afford procedural fairness to the Plaintiff (Dranichnikov at [24] and [32]). The failure to take into account relevant matters points to such a constructive failure (Yusuf at [41]. Conclusion 54I make the following orders: (1)An order in the nature of certiorari removing the determination of the Review Panel of the Motor Accidents Authority dated 10 August 2012 in respect of the First Defendant into this court and quashing that determination. (2)An order in the nature of mandamus remitting the Plaintiff's Application for Review of Assessor Fitzsimons' assessment of 18 April 2012 to the Third defendant for reallocation of the Application for determination according to law. (3)An order that the First Defendant pay the Plaintiff's costs of the proceedings. (4)The First Defendant is to have a certificate under the Suitors' Fund Act if otherwise so entitled. (5)No order in relation to the costs of the Second and Third Defendants. ********** 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. Decision last updated: 13 June 2013