Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Insurance Australia Ltd t/as NRMA Insurance v Scott [2016] NSWCA 138 Hearing dates: 9 May 2016 Decision date: 22 June 2016 Before: Basten JA at [1]; Ward JA at [17]; Gleeson JA at [125] Decision: (1) Appeal allowed with costs. (2) Set aside the judgment and orders made by Campbell J on 1 September 2015 and, in lieu thereof, dismiss with costs the plaintiff's summons seeking judicial review. (3) Grant the first respondent a certificate under the Suitors' Fund Act 1951 (NSW). Catchwords: ADMINISTRATIVE LAW – judicial review – motor vehicle accident – review of decision to refer claim for assessment and of certificates of medical assessors – whether existence of genuine dispute under Motor Accidents Compensation Act 1999 (NSW), s 60 a jurisdictional fact – whether "attendant care services" for which compensation available includes gratuitous domestic services Legislation Cited: Civil Liability Act 2002 (NSW), ss 3B(2)(a1), 15B(2) Civil Procedure Act 2005 (NSW), ss 56, 57, 58, 59, 60 Motor Accidents Compensation Act 1999 (NSW), Div 2, Pt 3.4, Pt 4.4, ss 3, s 5(1)(a), s 5(1)(b), 5(2)(a), 42, 44, 46, 52, 53, 56, 57, 57A, 58, 59, 60, 61, 62, 65, 81, 83, 85, 92, 98, 108, 122, 130, 131, 141B, Ch 3, Ch 4, Ch 5 Motor Accidents (Lifetime Care and Support) Act 2006 (NSW), s 6 State Insurance and Care Governance Act 2015 (NSW) Suitors' Fund Act 1951 (NSW) Supreme Court Act 1970 (NSW), ss 69, 75A Cases Cited: Allesch v Maunz [2000] HCA 40; (2000) 203 CLR 172 Australian Heritage Commission v Mt Isa Mines Ltd (1995) 60 FCR 456 Australian Telecommunications Commission v Colpitts (1986) 12 FCR 395 CDJ v VAJ [1998] HCA 67; (1998) 197 CLR 172 Chahwan v Euphoric Pty Ltd t/as Clay & Michel [2008] NSWCA 52; (2008) 227 FLR 43 City of Enfield v Development Assessment Commission [2000] HCA 5; (2000) 199 CLR 135 City of Subiaco v Local Government Advisory Board [2011] WASC 322 Cody v JH Nelson Pty Ltd [1947] HCA 17; (1947) 74 CLR 629 Commissioner of Taxes (Vic) v Lennon [1921] HCA 44; (1921) 29 CLR 579 Cooper Brookes (Wollongong) Pty Ltd v Commissioner of Taxation [1981] HCA 26; (1981) 147 CLR 297 Craig v South Australia [1995] HCA 58; (1995) 184 CLR 163 D'Amore v Independent Commission Against Corruption [2013] NSWCA 187; (2013) 303 ALR 242 Daly v Thiering [2013] HCA 45; (2013) 249 CLR 381 Gedeon v Commissioner of the New South Wales Crime Commission [2008] HCA 43; (2008) 236 CLR 120 Ghali v Chief Commissioner of State Revenue [2013] NSWCA 340; (2013) 85 NSWLR 378 Griffiths v Kerkemeyer [1977] HCA 45; (1977) 139 CLR 161 Kirk v Industrial Court of New South Wales [2010] HCA 1; (2010) 239 CLR 531 Kostas v HIA Insurance Services Pty Ltd [2010] HCA 32; (2010) 241 CLR 390 Lend Lease Real Estate Investments Ltd v GPT RE Ltd [2006] NSWCA 207 Murphy v Farmer [1988] HCA 31; (1988) 165 CLR 19 Nightingale v Blacktown City Council [2015] NSWCA 423 Parisienne Basket Shoes Pty Ltd v Whyte [1938] HCA 7; (1938) 59 CLR 369 Plaintiff M70/2011 v Minister for Immigration and Citizenship [2011] HCA 32; (2011) 244 CLR 144 QBE Insurance (Australia) Pty Ltd v Miller [2013] NSWCA 442 R v Young [1999] NSWCCA 166, (1999) 46 NSWLR 681 Rodger v De Gelder [2011] NSWCA 97; (2011) 80 NSWLR 594 Scott v Insurance Australia Limited [2015] NSWSC 1249; (2015) 72 MVR 300 Timbarra Protection Coalition Inc v Ross Mining NL [1999] NSWCA 8; (1999) 46 NSWLR 55 Trives v Hornsby Shire Council [2015] NSWCA 158 Western Australia v Ward [2002] HCA 28; (2002) 213 CLR 1 White v Benjamin [2015] NSWCA 75 Woolworths Ltd v Pallas Newco Pty Ltd [2004] NSWCA 422; (2004) 61 NSWLR 707 Yarri Mining Pty Ltd v Eaglefield Holdings Pty Ltd [2010] WASCA 132; (2010) 41 WAR 134 Texts Cited: M Leeming, Authority to Decide: The Law of Jurisdiction in Australia (1st ed, 2012, The Federation Press) Category: Principal judgment Parties: Insurance Australia Limited t/as NRMA Insurance (Appellant) Sonia Louise Scott (First Respondent) Motor Accidents Medical Assessment Service (Second Respondent) Representation: Counsel: MA Robinson SC with Ms J Gumbert (Appellant) M Daley (First Respondent) Solicitors: Curwoods Lawyers (Appellant) Brydens Law Office (First Respondent) Crown Solicitor's Office (Second Respondent) (Submitting appearance) File Number(s): 2015/00284773 Publication restriction: Nil Decision under appeal Court or tribunal: Supreme Court of New South Wales Jurisdiction: Common Law Citation: [2015] NSWSC 1249 Date of Decision: 01 September 2015 Before: Campbell J File Number(s): 2014/00342266 [Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.] HEADNOTE [This Headnote is not to be read as part of the judgment] This judgment relates to an appeal from a decision in the Common Law Division of the Supreme Court relating to a dispute as to a claim by Ms Scott for damages for injuries she suffered in a car accident. The insurer of the driver at fault admitted liability but disputed Ms Scott's claim for domestic care provided gratuitously to her and for care she had provided to her daughter. Following Ms Scott's claim for compensation, the insurer applied to the Motor Accidents Medical Assessment Service (MAS) for referral for assessment of what it contended was a "medical dispute" under s 57 of the Motor Accidents Compensation Act 1999 (NSW) as to whether gratuitous attendant care services provided to Ms Scott were reasonable and necessary and whether they related to injuries she sustained in the accident. Pursuant to s 58 of the Act, "medical assessment matters" include, relevantly, disagreement as to whether the "treatment" was or is reasonable and necessary and as to whether the "treatment" relates to the injury caused by the accident. MAS determined that the matter should be referred for assessment and appointed three medical assessors, who provided certificates unfavourable to Ms Scott. Ms Scott sought judicial review both of the decision of the MAS case officer to refer her claim for medical assessment and of the certificates. The primary judge found in Ms Scott's favour and set aside the certificates, concluding that voluntary care was not "treatment" for the purposes of s 58 and therefore could not be assessed under the scheme for assessment provided in Ch 3 of the Act. In coming to that conclusion, his Honour considered that the existence of a "genuine dispute" to be referred for assessment was a jurisdictional fact to be determined by the Court and found that there was no such dispute. The insurer challenged both findings on appeal. Ms Scott in turn argued, by way of notice of contention, that a determination of the hours of attendant care services required was not a "medical assessment matter" capable of referral under s 58. Held allowing the appeal, by Ward JA (Basten JA agreeing at [4]; Gleeson JA agreeing with both at [125]): (1) (at [86]) that the primary judge erred in construing the word "treatment" in s 58 as being confined to treatment that was to be professionally provided and paid for, having regard to the fact that the definition of "attendant care services" in s 3 is not so confined and that the itemisation of particular types of treatment in s 42 draws no distinction between paid/gratuitous or professional/voluntary services. (2) (at [94]-[95]) that the relevant certificates in effect certified that, from 1 November 2010 onwards, no domestic assistance was reasonable and necessary; understood in that way, determination as to the number of hours of attendant care services required was a medical assessment matter under s 58. (3) (at [119]; [121]) that s 60 of the Act is not in terms predicated on a "genuine dispute". The existence of a medical dispute is not a jurisdictional fact to be determined by the Court but rather is a matter to be determined by the proper officer. by Basten JA (Gleeson JA agreeing at [125]): (4) (at [7]-[8]) that if the subject matter of the disagreement falls within the defined terms of matters which may be assumed, the existence of a "disagreement or issue" is a factual matter to be determined by the Authority and, there being no suggestion that the opinion of the Authority was formed on some irrational or legally erroneous basis, the decision to refer the matter to assessment should not have been set aside. (5) (at [14]) that only "treatment" which is reasonable and necessary having regard to such injuries as are caused by the accident will result in compensation; "treatment" is not narrowly defined; and there is no justification for excluding attendant care services that are provided gratuitously from assessment as a form of treatment. by Gleeson JA (obiter): (6) (at [125]) that a medical assessment dispute as referred to in s 58 does not extend to a claim covered by s 15B(2) of the Civil Liability Act 2002 (NSW) for loss of the claimant's capacity to provide domestic services to the claimant's dependants. Judgment 1. BASTEN JA: In May 2010 the first respondent, Sonia Louise Scott, was injured in a motor vehicle accident. A claim was made against the driver of the other vehicle, seeking damages. The insurer disputed that Ms Scott was entitled to damages for the value of domestic care provided gratuitously and for care which she had formerly provided to her daughter. The first question raised in these proceedings was whether such damages fell within the scope of the scheme for assessment provided under Ch 3 of the Motor Accidents Compensation Act 1999 (NSW) ("MAC Act"). 2. The insurer contended that the claim could be assessed under the Act and that there was a dispute as to that assessment. There was, therefore, a "medical dispute" which it sought to have referred to medical assessment. The Authority referred the dispute to three assessors who provided certificates, the last being dated 21 November 2013. The certificates were unfavourable to the claimant who sought judicial review, both of the decision to refer her claim for assessment and of the certificates. 3. The primary judge, Campbell J, upheld the application and set aside the certificates. The primary basis for that judgment was that gratuitous domestic services did not fall within the scope of the scheme and therefore could not be assessed. The primary judge also held that whether there was a "genuine dispute" to be referred for assessment was a jurisdictional fact to be determined by the Court. 4. On appeal, the insurer challenged both findings. I agree with Ward JA that the appeal should be upheld in both respects. Existence of medical dispute 1. The second ground raised an independent issue which, chronologically, arose first and may conveniently be disposed of first. A "medical dispute" may be referred to the Authority for assessment by either party to the dispute. [1] The Authority, in turn, "is to arrange for" the dispute to be referred to one or more medical assessors. [2] 2. Medical assessment occurs under Pt 3.4 of Ch 3. The term "medical dispute" is defined in that Part to mean "a disagreement or issue to which this Part applies." [3] The first issue is, thus, whether the Authority can determine whether there is a relevant disagreement or issue, or whether on judicial review the factual basis of its opinion can be reassessed by the court. 3. If the subject matter of the disagreement falls within the defined terms of matters which may be assessed, the existence of a "disagreement or issue" is pre-eminently a factual matter to be determined by the Authority. It would verge on the bizarre to think that Parliament, in establishing the administrative scheme for assessment of medical disputes, did not intend that the Authority, when correctly construing its legislation and acting reasonably, should be able to determine whether or not there was a dispute. 4. Accordingly, I agree with the reasons given by Ward JA for upholding this ground of appeal. There being no suggestion that the opinion of the Authority was formed on some irrational or legally erroneous basis, the decision to refer the matter to the assessors should not have been set aside. Assessment of gratuitous domestic care 1. The scope of the matters which may be assessed are set out in s 58(1). [4] The matters include "whether the treatment provided or to be provided to the injured person was or is reasonable and necessary in the circumstance". [5] A second matter is whether "any such treatment relates to the injury caused by the motor accident". [6] 2. The term "treatment" is defined, for the purposes of Ch 3, to include "the provision of attendant care services". [7] The term "attendant care services" is defined, for the purposes of the Act, as meaning "services that aim to provide assistance to people with everyday tasks, and includes (for example) personal assistance, nursing, home maintenance and domestic services." [8] 3. With the possible exception of services rendered by the claimant to her dependant, this language is apt to cover the range of gratuitous services for which the claimant sought compensation. Although the claimant submitted that this last definition did not apply in relation to Ch 3, there is no reason to accept such a restrictive reading. The possibility that a definition provided by an Interpretation Act may not apply in all statutes, but may be displaced by context, is understandable. Amongst other reasons, the drafter of the specific statute in question may not have had the general definition in mind. However, where a specific phrase is defined in a particular statute and is used in a limited number of contexts, it would be a denial of the intention revealed by the language of the legislation to discard the definition and give the phrase in question some different meaning. 4. The Motor Accidents Compensation Act is precise in differentiating those definitions which apply "[i]n this Act" (s 3) or "[f]or the purposes of this Act" (s 4(1)), from those applying to a specific Division (s 7A) or Chapter (ss 42 and 66) or Part (ss 46 and 57). These aspects of the drafting should not be ignored and are inconsistent with an implication of inadvertent imprecision. 5. The claimant did not dispute that the phrase should have its defined meaning in provisions found in Ch 5 of the Act regulating awards of damages, such as s 141B. She accepted that those principles apply with respect to damages assessed by a claims assessor under Pt 4.4 of the Act and to damages awarded by a court. [9] However, with respect to the assessment of injuries caused by a motor accident, pursuant to Ch 3, the claimant contended that each element of "treatment" referred to in s 42 should be understood as referring to treatment provided by professionals and not gratuitous services provided, for example, by family members. 6. That submission ignores the fact that damages are awarded for an injury or incapacity caused by the accident. It is only "treatment" which is reasonable and necessary having regard to such injuries as are caused by the accident which will result in compensation. Nor is "treatment" narrowly defined. The assessment of treatment (pursuant to Ch 3) and the resolution of claims (pursuant to Ch 4) are not to be treated as independent and unrelated exercises; rather they are two steps in a single exercise. It would not serve the intended operation of the legislation to treat "attendant care services" as having its defined meaning in one part of the Act, but not another. Nor, attendant care services being compensable, is there any justification for excluding such services as are provided gratuitously from assessment as a form of treatment, but allowing such an assessment when the same services are provided professionally. In each case the need, reasonableness and causal connection must be established. 7. With the possible exception of services rendered by the claimant to her dependent daughter, the language of the definition is apt to cover the range of services for which she sought compensation. 8. For these reasons, and the further reasons given by Ward JA, the primary judge was in error in accepting the claimant's submissions. The orders proposed by Ward JA should be made. 9. WARD JA: The first respondent, Ms Scott, was injured in a car accident on 15 May 2010. She was driving in a semi-rural area and had turned left into her driveway when a car following behind the vehicle immediately behind hers swerved onto the shoulder of the road and crashed into the rear passenger side of her car. She suffered physical injury to her neck and lower back (resulting in an L5/S1 discectomy carried out in August 2010) and was later diagnosed with a psychiatric injury (chronic major depression). She claimed compensation from the appellant, Insurance Australia Ltd t/as NRMA Insurance (the insurer), a compulsory third party insurer pursuant to the Motor Accidents Compensation Act 1999 (NSW) (the Act). The insurer admitted liability for the claim pursuant to s 81 of the Act. 10. As liability had been admitted, the assessment of Ms Scott's claim for compensation under the scheme provided for by the Act was to be assessed in accordance with Div 2 of the Act (it not being suggested that her claim was exempt from assessment pursuant to s 92 of the Act). The objects of the Act include 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 (s 5(1)(a)); and to provide compensation for compensable injuries sustained in motor accidents, and to encourage the early resolution of compensation claims (s 5(1)(b)). 11. The State Insurance Regulatory Authority constituted under the State Insurance and Care Governance Act 2015 (NSW), formerly the Motor Accidents Authority (the Authority), is the statutory corporation which administers the compulsory third party insurance and compensation scheme under the Act. In association with the operations of the Authority there have been two units established by the Authority, as required by s 57A and s 98 of the Act, respectively. Those are the Motor Accidents Medical Assessment Service (MAS), consisting of medical members and such members of staff of the Authority as it determines (s 57A) and the Motor Accidents Claims Assessment and Resolution Service (CARS), consisting of claims assessors and such members of the Authority as it determines (s 98). Unless a claim is exempt, completion of the claims assessment process is a pre-condition to the commencement of court proceedings in respect of a claim for compensation (s 108). 12. Medical assessments under Pt 3.4 of the Act are, pursuant to s 65(1) of the Act, "subject to relevant provisions of Motor Accidents Medical Guidelines relating to the procedures for the referral of disputes for assessment or review of assessments and the procedure for assessment". Section 44 of the Act provides that the Authority may issue such guidelines in respect of the matters there set out, including (subs (1)(d)) the procedures referred to in s 65(1). 13. The dispute which arose between the parties in the present case was as to the validity of certain medical assessments made and certificates issued by medical assessors appointed by MAS (joined as the second respondent in these proceedings) after the insurer had made application to MAS for assessment of what it contended was a "medical dispute" under s 57 of the Act. 14. The medical dispute the subject of the insurer's application to MAS was framed in terms within s 58(1)(a) and (b) of the Act: as to whether attendant care services which had been or were to be provided voluntarily to Ms Scott were reasonable and necessary in the circumstances and as to whether the provision of those services related to the injury or injuries caused by the accident. 15. Ms Scott contended that the referral by MAS of the matter for assessment by the medical assessors was invalid for want of jurisdiction and that the decisions of the respective medical assessors were themselves invalid either because they were infected by the invalid decision to refer the matter for medical assessment (T 23.10) or by reference to various jurisdictional errors or errors of law on the face of the record (see summons seeking judicial review). 16. Ms Scott commenced proceedings in the Common Law Division of the Supreme Court seeking judicial review of the impugned decisions pursuant to s 69 of the Supreme Court Act 1970 (NSW). 17. The primary judge found in Ms Scott's favour, making orders quashing the legal effect of the respective assessment certificates and prohibiting MAS from taking any further steps in the matter (Scott v Insurance Australia Limited [2015] NSWSC 1249; (2015) 72 MVR 300). 18. The insurer now appeals from that decision pursuant to s 75A of the Supreme Court Act. Such an appeal is in the nature of a rehearing. The insurer must establish some legal, factual or discretionary error committed by the primary judge before the powers of this Court are exercisable (Allesch v Maunz [2000] HCA 40; (2000) 203 CLR 172 at [23] per Gaudron, McHugh, Gummow and Hayne JJ; CDJ v VAJ [1998] HCA 67; (1998) 197 CLR 172 at [111] per McHugh, Gummow and Callinan JJ; Western Australia v Ward [2002] HCA 28; (2002) 213 CLR 1 at [70]-[71] per Gleeson CJ, Gaudron, Gummow and Hayne JJ; Kostas v HIA Insurance Services Pty Ltd [2010] HCA 32; (2010) 241 CLR 390 at [27] per French CJ). Background 1. The circumstances of the accident were not in dispute and need not be further explored. Ms Scott lodged her claim for compensation on or about 28 June 2010. As noted above, liability was admitted by the insurer. That gave rise to certain statutory duties on the part of the insurer (see for example ss 83 and 85 of the Act) in relation to the making of payments to or on behalf of Ms Scott. 2. On 22 April 2013, Ms Scott's solicitors wrote to the insurer enclosing what were described as "the claimant's submissions being particulars of the claim pursuant to Section 85". In those submissions, which were forwarded under the name of senior counsel, it was contended that past domestic assistance had been very extensive and that it would be reasonable to allow $24,000 (40 hours per week at $25 per hour for 24 weeks) to the end of October 2010 and then $34,120 (10.5 hours per week for the following 2.5 years). It was further contended that there was a need for significant future domestic assistance at the rate of about 10 hours per week at $40 per hour for the balance of Ms Scott's life expectancy, namely $386,640. It was also submitted that allowance should be made for the past and future care of Ms Scott's daughter. Ms Scott signed a statement dated 16 April 2013 in which she outlined the care that had been provided by her family in the period after the accident and the impact of the accident on her physical and psychological health and her ability to work and care for her daughter. A statement from her sister was also provided. 3. The insurer responded by letter dated 30 April 2013, apparently treating the 22 April 2013 letter as a request for past and future domestic assistance and attendant care and seeking further particulars "of the type of care/list of duties" in respect of both past and future care. (Ms Scott cavils with the insurer's description of this as a "request" for the provision or payment of such services prior to any assessment of damages but ultimately nothing turns on this in my opinion. For completeness, I note that the primary judge was not persuaded that the provisions of ss 58 and 60 of the Act were limited to where a specific request for payment for treatment had been made ([84]).) 4. There was no immediate response to the insurer's request for further particulars. By letter of 15 May 2013 the insurer wrote again, referring to the 22 April 2013 letter and to reports that had apparently by then been served (one dated 1 February 2012 from Dr Conrad and one dated 14 July 2010 from Dr Roberts) outlining a recommendation for past and future domestic assistance and attendant care. The letter set out the insurer's understanding of the "request" that had been made and sought advice if this was "an inaccurate summation of the claim made" by Ms Scott. 5. Relevantly, the insurer's letter stated, among other things, that an agreement as to Ms Scott's entitlement to domestic assistance and attendant care had "still not been reached"; that her "request" for domestic assistance and attendant care "continues to be disputed" by the insurer; that the insurer declined to make any payment as to those matters; and that the insurer relied on an assessment of Ms Scott undertaken by Dr Michael Prior on 15 January 2013 which indicated that Ms Scott did not require personal or domestic assistance as a result of the accident "from the psychiatric perspective". 6. The letter set out the insurer's view as to the issue of domestic assistance and attendant care and then, under the heading "Scope of the Disagreement", stated that "the scope of the disagreement between the parties ranges from the amount claimed by your client, to the amount assessed by Dr Michael Prior for NRMA and every hour in between". The scope of the hours in dispute was set out in a table by reference to three periods: first, the period between the accident and 31 October 2010; second, the period from 1 November 2011 to the "date of assessment"; and, third, the period from the date of assessment through to the balance of Ms Scott's life expectancy. 7. The insurer advised its intention, if the disagreement was unable to be resolved, to lodge an "Application for an Assessment of a Treatment Dispute" with MAS, on the basis that "treatment" was defined under s 42 of the Act as including "the provision of attendant care services" and Pt 3.4 of the Act permitted a treatment disagreement between the insurer and the claimant to be referred to MAS for determination. 8. There does not appear to have been a response to that letter. The insurer then proceeded, by letter of 7 June 2013, to lodge with MAS the foreshadowed application for assessment of the said treatment dispute, stating that the matter was currently being heard before CARS and requesting expedition of the application. 9. The insurer's submissions in support of that application, dated 12 June 2013, were in summary that: the claim for past and future attendant care/domestic assistance was not reasonable and necessary nor related to the effects of the motor vehicle accident; and the attendant care services claimed were excessive given the nature of the motor accident injuries. The insurer's submissions referred to an attempt by the insurer on 30 April 2013 to resolve the claim (presumably this was a reference to its letter of that date – see [29] above , though it is difficult to see where in that letter the insurer had attempted any resolution of the claim – it simply noted its understanding of the "request" and sought further particulars). The submissions also stated that Ms Scott and the insurer had been "unsuccessful in negotiating an entitlement to domestic care/attendant care". Again, there was nothing in the evidence before this Court to suggest that any negotiation had taken place (let alone been attempted) at that stage. 10. Ms Scott's solicitors then lodged with MAS, by letter dated 18 June 2013, a formal reply to the insurer's application for referral of the matter for assessment of a treatment dispute, in which they opposed the insurer's application and submitted that the application should be dismissed. Among other things, the submissions asserted that: on the proper construction of the treatment dispute provisions, the procedure for referral did not apply to non-commercial disputes for non-specific forms of treatment and could not apply to a "general claim for damages for gratuitously provided services or commercially provided services where the claim is part of a general claim for damages"; and that the "procedural hurdles" for such a referral had not been satisfied by the insurer; that the application was an abuse of process. It is relevant to note that the submissions also included the statement that, if the matter were to be referred, Ms Scott would require a lengthy adjournment to enable "him" [sic] to collect and put before the MAS Assessor all the material that "he" [sic] would propose to put before a CARS Assessor addressing the need for care, apparently (having regard to the submissions in this Court) on the basis that an assessment of this material would be relevant to whether there was a genuine dispute as to the need for attendant care services and/or as to the "procedural hurdles" (including that the parties had first made some attempt to resolve the specific treatment dispute in question – as required by cl 8.3 of the MAS Medical Assessment Guidelines). 11. On 2 July 2013, a case manager within MAS notified the insurer's solicitors of its determination that the matter was ready to proceed to assessment. The letter stated that MAS was "satisfied" that a dispute in relation to past and future treatment existed in this claim and, pursuant to s 58(1) of the Act, accepted the application. The letter stated that MAS was also satisfied that the requirements of Ch 8 of the MAS Medical Assessment Guidelines had been met. 12. The letter identified the "treatment disputes" to be assessed as those contained in a series of 12 questions, those going first to the questions whether the physical and/or psychiatric injuries gave rise to a need for the domestic assistance in question in the three periods in question and as to whether that assistance was causally related to the injury sustained in the accident and, second, to whether the range of hours per week of domestic assistance specified for each of the respective periods was reasonable and necessary in relation to the injury (physical and/or psychiatric) sustained in the accident. 13. By letter dated 12 July 2013, MAS notified the insurer's solicitors of arrangements made for the following medical assessors to assess the dispute: Dr Harvey-Sutton and Dr Friend. In September 2013, a further assessor (Ms Wise, an occupational therapist) was appointed by MAS as a medical assessor in respect of the treatment dispute. 14. Each of those assessors in due course issued a certificate under Pt 3.4 of the Act. Pursuant to s 61(2) of the Act, a certificate as to a medical assessment matter is conclusive evidence as to the matters certified in any court proceedings or in any assessment by a claims assessor in respect of the claim concerned. 15. Dr Harvey-Sutton issued her certificate on 27 August 2013 in relation to the cervical, thoracic and lumbar spine injuries sustained by Ms Scott. 16. As to the question whether the treatment provided or to be provided related to the injury caused by the motor accident, Dr Harvey-Sutton certified that Ms Scott's injuries gave rise to a need for domestic assistance (for tasks including housework, home and garden maintenance, hanging washing, vacuuming, sweeping and making beds) from 15 May 2010 to 31 October 2010, being the first period that had been identified by the insurer, in its 15 May letter, as being in dispute (see [30] above), and that that need related to the injuries caused by the motor accident; but also that, for the subsequent two periods, the said need did not relate to the injuries caused by the motor accident. 17. As to whether the treatment provided or to be provided was reasonable and necessary in the circumstances, Dr Harvey-Sutton concluded in respect of the two later periods that the hours per week of domestic assistance arising from the said injuries caused by the motor vehicle accident (0-40 hours per week from 1 November 2010 to the date of the assessment and 0-10.5 hours per week from the date of that assessment and ongoing) were not reasonable and necessary in the circumstances. 18. Dr Friend issued his certificate on 2 September 2013 in relation to the chronic major depression (i.e., the psychiatric injury) suffered by Ms Scott. 19. As to the question whether the treatment provided or to be provided related to the injury caused by the motor accident, Dr Friend certified that Ms Scott's chronic major depression gave rise to a need for domestic assistance (for tasks including housework, home and garden maintenance, hanging washing, vacuuming, sweeping and making beds) from 15 May 2010 to 31 October 2010 and that need related to the injuries caused by the motor accident but, similarly, certified that for the subsequent periods the said need did not relate to the injuries caused by the motor accident. 20. As to whether the treatment provided or to be provided was reasonable and necessary in the circumstances, Dr Friend similarly concluded that the hours per week of domestic assistance arising from the psychological injury caused by the motor vehicle accident for the two later periods (0-10.5 hours per week from 1 November 2010 to the date of the assessment and 0-10 hours per week from the date of that assessment and ongoing) were not reasonable and necessary in the circumstances. 21. Ms Wise certified on 21 November 2013 that 0 hours per week of domestic assistance from 15 May 2010 to 31 October 2010 was reasonable and necessary and (correspondingly) that 1-40 hours of domestic assistance from 15 May 2010 to 31 October 2010 was not reasonable and necessary. 22. By her summons filed 20 November 2014, Ms Scott sought judicial review of those decisions (as well as the decision of the second respondent to refer the matter for assessment to the medical assessors in the first instance). Relevant legislative provisions 1. Section 60 of the Act provides that: 60 Medical assessment procedures (1) A medical dispute may be referred to the Authority for assessment under this Part by either party to the dispute or by a court or claims assessor. (2) The Authority is to arrange for the dispute to be referred to one or more medical assessors. (my emphasis) 1. Section 57 of the Act defines "medical dispute" as a disagreement or issue to which Pt 3.4 of the Act applies. 2. Section 58 of the Act, contained in that part of the Act, provides that: 58 Application (1) This Part applies to a disagreement between a claimant and an insurer about any of the following matters (referred to in this Part as medical assessment matters): (a) whether the treatment provided or to be provided to the injured person was or is reasonable and necessary in the circumstances, (b) whether any such treatment relates to the injury caused by the motor accident, (c) (Repealed) (d) whether the degree of permanent impairment of the injured person as a result of the injury caused by the motor accident is greater than 10%. (e) (Repealed) (2) This Part also applies to any issue arising about such a matter in proceedings before a court or in connection with the assessment of a claim by a claims assessor. 1. Section 42 provides that, in Ch 3 of the Act, "treatment" means: (a) medical treatment, or (b) dental treatment, or (c) the provision of rehabilitation services, or (d) the provision of attendant care services, or (e) the provision, replacement or repair of artificial members, eyes or teeth, crutches or other aids or spectacle glasses, whether or not at a hospital. 1. The term "attendant care services" is defined in s 3 of the Act as meaning: ... services that aim to provide assistance to people with everyday tasks, and includes (for example) personal assistance, nursing, home maintenance and domestic services. 1. Also relevant to note in this context is s 141B of the Act, which provides that: 141B Maximum amount of damages for provision of certain attendant care services (cf s 72 MAA) (1) Compensation, included in an award of damages, for the value of attendant care services: (a) which have been or are to be provided by another person to the person in whose favour the award is made, and (b) for which the person in whose favour the award is made has not paid and is not liable to pay, must not exceed the amount determined in accordance with this section. (2) No compensation is to be awarded if the services would have been provided to the person even if the person had not been injured by the motor accident. … Primary judgment 1. Having summarised (at [32]-[34]) the arguments put by the respective parties as to the construction of s 58 of the Act, the primary judge characterised the relevant question ([40]) as being whether a dispute about Griffiths v Kerkemeyer [1977] HCA 45; (1977) 139 CLR 161 damages (i.e., damages to compensate for the "need" for voluntary domestic assistance) was a disagreement about treatment of the types referred to in subss 58(1)(a) and (b) of the Act. 2. The primary judge accepted the broad basis on which Ms Scott had contended that a claim for an allowance for Griffiths v Kerkemeyer damages was not "treatment" within the meaning of s 58 of the Act, namely that in s 58 the word "treatment", understood in its statutory context, was restricted to professional services for which the claimant will or may incur a fee (or financial loss); i.e., services that would traditionally have been the subject of special rather than general damages at common law ([55]). His Honour did not regard the loss of Ms Scott's capacity to render to herself the services she would have otherwise performed for herself in her uninjured state as falling within the ordinary or natural meaning of the word "treatment" ([48]). 3. The primary judge considered that an important part of the historical context of the Act was the continued operation of the enacted law and the common law relating to the assessment of damages, referring to s 5(2)(a) in that regard ([40]). His Honour emphasised that s 141B provides the measure of damages payable for a loss which is not financial in nature but rather is represented by the accident-created need ([48]). 4. His Honour considered that the emphasis in s 58(1)(a) was upon the assessment of the appropriateness of the provision of the particular services, not on any medical assessment of Ms Scott's loss; and, similarly, that the question under s 58(1)(b), when amplified by reference to the statutory definition of "treatment", was upon whether the services related to the injury, not whether the loss of capacity related to the injury ([50]-[51]). 5. His Honour considered it significant that s 141B(2) prescribed a different nexus between injury and compensation from that in either s 58(1)(a) or (b); i.e., that the test in s 141B(2) is not one dependent on the treatment being reasonable and necessary in the circumstances and not one dependent on a causal relationship between the treatment and the injury caused by the motor accident ([53]). 6. The primary judge also considered that, although the definition of attendant care services in s 3 was capable of applying to any service falling within that broad definition whether paid or unpaid, the definition of treatment in s 42 provided a more focussed context for the term "attendant care services", it there appearing in a list of matters (medical treatment, dental treatment, rehabilitation services, and the provision, replacement or repair of certain items) each of which would be provided by a qualified professional "whether or not at a hospital" ([55]). 7. The primary judge concluded that voluntary care was not "treatment" for the purpose of s 58 ([55]) and that (at [56]) MAS had fallen into jurisdictional error by entertaining and deciding the matters the subject of the insurer's application (by providing the various certificates) because those matters lay wholly outside the limits of its function and powers (referring to Craig v South Australia [1995] HCA 58; (1995) 184 CLR 163 at 177; Kirk v Industrial Court of New South Wales [2010] HCA 1; (2010) 239 CLR 531 at [71]-[72]). His Honour considered that MAS had done so because it had misconstrued the Act and the nature of the function it was empowered to perform under the Act. 8. Lest he be wrong in the above conclusion, the primary judge also considered Ms Scott's argument that the insurer had not satisfied the "procedural hurdles" necessary for there to be a referral of the matter for assessment by MAS; i.e., her argument that the "procedural hurdles" had not been established – which I understand principally to refer to her contention that the existence of a medical dispute had not been established. 9. At [74], the primary judge recorded the insurer's acceptance that the existence of a genuine dispute was a jurisdictional fact which the Court could decide for itself and that the existence of a dispute within the meaning of s 60 was a condition precedent to the exercise of the power of medical assessment. (The insurer in supplementary submissions provided after the hearing of this appeal now disputes that the existence of a dispute, or of a genuine dispute, is a jurisdictional fact.) 10. At [76], the primary judge then firmly expressed the opinion that the existence of a medical dispute was a "condition" of the valid exercise of MAS's power of assessment. 11. The primary judge considered that it was difficult to see, on the medical evidence available at the time, where there was a dispute about "some" need for domestic assistance being reasonable and necessary and related to the accident ([80]). (His Honour noted that the question of assessment of any allowance in that regard under s 141B, forming part of the motor accident damages to be awarded, was another matter and not one within MAS's jurisdiction.) 12. The primary judge considered that a practical and realistic approach should be taken to the determination of whether a dispute exists ([83]). His Honour considered that the insurer's correspondence paid no more than "lip service" to the procedural requirements in the relevant guidelines as to the need for the parties first to have made some attempt to resolve the specific treatment dispute in question before the dispute will be assessed by MAS (cl 8.3). To that effect, the primary judge said at [82] that "[t]he letters are written with a view to engendering an impression in the mind of the reader that the guidelines had been complied with and a genuine dispute existed". His Honour was satisfied that the insurer had simply "go[ne] through the motions" of setting up the appearance of a dispute ([85]). 13. Accordingly, on the assumption (contrary to his Honour's principal conclusion) that assessment "of a s 141B dispute" was available, his Honour was not satisfied on the balance of probabilities that a genuine dispute existed in the present case at the time the insurer had purported to refer the matter to MAS ([87]). 14. The primary judge thus granted the relief in favour of Ms Scott to which I have already referred. Appeal 1. By notice of appeal filed 29 September 2015, the insurer raises the following four grounds of appeal: 1. In Scott v Insurance Australia Limited [2015] NSWSC 1249, his Honour dealt with the interpretation of section 58 of the Motor Accidents Compensation Act 1999 (NSW) ("the Act"). His Honour erred (reasons at [49], [52] and [55]) in wrongly holding that the definition of the expression "attendant care services" in section 3 of the Act meant something different where it also appears in section 42 of the Act. 2. His Honour erred in finding (at [55]) that section 58(1)(a) of the Act, particularly the words "whether the treatment provided or to be provided", only applied to treatment that was paid for or to be paid for (or "professionally provided") when in fact the words in that section should have been given their ordinary and natural meaning, in that services can be provided without paying for them. 3. His Honour erred in finding (reasons at [65]) that the applicant's construction of the expression "attendant care services" in the Act was unreasonable and lead to the legislative purpose of the Act being defeated. 4. His Honour erred in finding (reasons at [87]) that there was no genuine dispute between the parties concerning section 141B of the Act (gratuitous care) that could found an application for a medical assessment pursuant to section 58 of the Act. 1. In her submissions in this Court, Ms Scott sought leave to rely upon a notice of contention, seeking to uphold the primary judge's decision on the following ground not relied upon by the primary judge: that the number of hours of attendant care services is not a "medical assessment" matter and not a legally permissible subject for referral for assessment under s 58 of the Act. Grounds 1-3 1. The first three grounds of appeal relate in essence to the construction of s 58 of the Act and may be dealt with together. Submissions 1. The insurer contends that the definition of the term "attendant care services" in s 3 must be applied wherever that term appears in the Act and hence argues that the word "treatment" in s 58, having regard to the definition of "treatment" in s 42 as including the provision of attendant care services, must be construed as including the provision of attendant care services. 2. The insurer emphasises that the definition of "attendant care services" in s 3 is not in terms limited to services that are gratuitous or otherwise, nor is the word "treatment" limited to treatment that is professionally provided. The insurer notes that the term "attendant care services" is used in s 141B in the sense of the provision of gratuitous care whereas elsewhere (s 83) the same term is used in relation to an obligation of the insurer to pay in certain circumstances. It argues that the ordinary and natural meaning of "attendant care services" is not one confined to the provision of professional services or services for which payment is required. 3. It is submitted by the insurer that the primary judge's approach to the construction of s 58 in this regard is inconsistent with Daly v Thiering [2013] HCA 45; (2013) 249 CLR 381. There, what was in issue was the construction of s 130 of the Act and s 6 of the Motor Accidents (Lifetime Care and Support) Act 2006 (NSW) (the Lifetime Care and Support Act), as then appearing in the relevant legislation. 4. Section 130 of the Act, as it then was, referred in terms to "treatment and care needs [within the meaning of the Lifetime Care and Support Act] … that are provided for or are to be provided for …". Section 6 of the Lifetime Care and Support Act included, in the definition of "treatment and care needs", among other things, attendant care services. The High Court in Daly rejected an argument that the words "are provided for or are to be provided for" in s 130 were to be read as meaning "are paid for or are to be paid for" and concluded (at [36]) that the words "provided for" should be given their ordinary and natural meaning. The High Court considered it readily apparent that one might provide for services without paying for them. 5. In the present case, the insurer argues that the words "provided for or to be provided" in s 58, though under a different scheme from that considered in Daly, are relevantly indistinguishable from the same words considered in Daly and hence that the primary judge erred in finding (at [65]) that the construction for which the insurer contended was unreasonable and led to the legislative purpose of the Act being defeated. 6. Ms Scott accepts that the definition of "attendant care services" in s 3 is a general definition and that it does not in its terms distinguish between Griffiths v Kerkemeyer services and professionally provided services (see T 2.25 - 4.2). However, she argues that the relevant question is how the word "treatment" (i.e., including "attendant care services") is to be construed when appearing in s 58 and she submits (as she did before the primary judge) that the list of items in s 42 indicates that "treatment" is limited to professionally provided services. In other words, the argument is that the statutory definition of "attendant care services" is displaced when one is considering the operation of ss 42 and 58 of the Act (T 1.48). 7. Ms Scott adopted the reasoning articulated by the primary judge in that regard, emphasising the first of the objects of the Act set out in s 5(1)(a). It is said that if treatment is being provided gratuitously by them there is no need for an application for medical assessment under the Act in respect of such case because it has already been or is being provided (T 3.3 – 9) and hence the object of the Act set out in s 5(1)(a) is not served by a dispute as to Griffiths v Kerkemeyer or damage being referred for medical assessment. In other words, it seems to be said that there is no need for an early determination of the reasonableness etc of a need that is already being (voluntarily and without charge) met and the claim for correspondence for that need can be determined in due course. That, however, does not address the manner in which resolution of a medical assessment dispute might facilitate the object in s 5(1)(b) (T 4.6). In oral submissions, Ms Scott's counsel accepted that to the extent the opinion of a medical assessor as to, say, whether the relevant need was less than the threshold for compensation under s 141B then the object under s 5(1)(b) might be facilitated. 8. Ms Scott points to the exclusion of "attendant care expenses" from the definition of "treatment expenses" in s 46 and submits that other sections of the Act (ss 52, 53 and 56) speak of "treatment expenses" in a context which assumes that they are expenses for which payment is to be made. Ms Scott submits that the structure of the Act (in particular referring to ss 53 and 83), and the language used in s 141B when dealing with gratuitous assistance, supports the conclusion that s 42 does not deal with gratuitous assistance under the Griffiths v Kerkemeyer principles. 9. Ms Scott argues that not all attendant care services can plausibly have been intended by the Parliament to be within the definition in s 42 (and therefore able to be the subject of a medical assessment under s 58); raising by way of example some services that could be considered attendant care services (in particular, house painting). Ms Scott argues that it is implausible that Parliament intended, within provisions otherwise dealing with treatment and requiring the referral for determination to medical assessors (s 59) and providing for the payment of that treatment prior to trial and in the context of the objects specified in s 5 of the Act and in the medical assessment guidelines (for the early treatment of the injured to assist with their rehabilitation), that a dispute about whether an injured person required his or her house to be painted prior to trial or assessment would be the subject of a "medical assessment matter" under s 58. 10. Noting the distinction in the Act between medical assessment matters (dealt with in Ch 3) and motor accident claims assessments (dealt with in Ch 4 and Ch 5), and that the Act expressly preserves the functions of judges and CARS assessors to determine matters of assessment of damages, Ms Scott submits that if Parliament had intended to make the determination of attendant care claims something within the sole and binding province of medical assessors, it could easily have done so (as it did in respect of claims for non-economic loss – there referring to ss 58(1)(d) and 131, though noting the exception in s 61(6)). Ms Scott also argues that there is a dichotomy between the pre-assessment and trial assessment of damages phases, which supports her construction of "treatment" in s 58. 11. Ms Scott argues that support for primary judge's construction is gained from the fact that compensation for gratuitous assistance under Griffiths v Kerkemeyer (as modified by s 141B) requires a determination on the basis of different tests to those of reasonableness and necessity; and is recoverable for the need created by the injury even though it is not and will never be productive of financial loss. Ms Scott argues that none of the limitations in s 141B is a medical assessment matter within the meaning of ss 42 and 58 and argues that a medical assessor would not be in a position to make these determinations (such as what services would have been provided to the person even if the person had not been injured; or how long those services took to be provided to the person prior to their injuries). It is submitted that it is unlikely that the legislature would have intended that a certificate as to those matters (in respect of which Ms Scott submits a medical assessor would not have, or necessarily have, any expertise) should be binding. 12. Ms Scott thus submits that the "literal" interpretation of the relevant statutory provisions in this case must give way to the appropriate construction determined by reference to the context, purpose and objects of the legislation (referring to Cooper Brookes (Wollongong) Pty Ltd v Commissioner of Taxation [1981] HCA 26; (1981) 147 CLR 297 at 305, 311, 321; R v Young [1999] NSWCCA 166, (1999) 46 NSWLR 681 at 17-22; Chahwan v Euphoric Pty Ltd t/as Clay & Michel [2008] NSWCA 52; (2008) 227 FLR 43; Commissioner of Taxes (Vic) v Lennon [1921] HCA 44; (1921) 29 CLR 579 at 590; Australian Telecommunications Commission v Colpitts (1986) 12 FCR 395; Murphy v Farmer [1988] HCA 31; (1988) 165 CLR 19 at 26-28; Ghali v Chief Commissioner of State Revenue [2013] NSWCA 340; (2013) 85 NSWLR 378 at 21; Lend Lease Real Estate Investments Ltd v GPT RE Ltd [2006] NSWCA 207 at 30; Cody v JH Nelson Pty Ltd [1947] HCA 17; (1947) 74 CLR 629; and Nightingale v Blacktown City Council [2015] NSWCA 423 per Basten JA at [51]; Meagher JA at [85]; c.f. Macfarlan JA at [82]-[83]). 13. As to the reliance now placed by the insurer on Daly, complaint is also made that the submission referable to that case was not put below, but in any event Ms Scott argues that the decision is distinguishable – the legislation there referring to "treatment and care needs" (my emphasis). Ms Scott argues that, as care needs and treatment were generally to be provided for within the legislative scheme considered in Daly, there was no room for additional compensation in respect of gratuitously provided assistance. 14. In summary, Ms Scott's principal argument is that the qualifier in s 58 is the word "treatment" and that "treatment", for the purposes of s 42 and Pt 3 of the Act, is, on its proper construction, restricted to professionally provided (not gratuitous) assistance. Determination 1. Essentially, for the reasons advanced by the insurer, I consider that the primary judge erred in construing the word "treatment" in s 58 of the Act as confined to treatment that was to be professionally provided (and paid for). The definition of "attendant care services" in s 3 of the Act is not so confined and I do not read the itemisation of the particular types of treatment included in the definition of "treatment" in s 42 as drawing any distinction between paid/gratuitous or professional/voluntary services. 2. The reasoning in Daly points to the contrary conclusion namely that a disagreement (of the kind falling within s 58(1)(a) or (b) of the Act) in relation to the provision of voluntary services of the kind compensable at common law in accordance with Griffiths v Kerkemeyer is within the definition of "medical dispute" and capable of referral for assessment under the procedure established by Ch 3 of the Act. 3. I do not find the house painting example to be of any great assistance. An appropriately qualified medical assessor would surely be in a position to assess whether the nature of injuries suffered as a result of a car accident would disable the injured person from attending to tasks of that kind and the extent of that disability. Hence such an assessor would be qualified to express an opinion as to whether claimed attendant care services were reasonable and necessary in the circumstances and whether they were causally related to the injury. The fact, if it be the case, that the need for some attendant care services (such as house painting) might not be as immediate as those for which, in accordance with the objects of the Act, it is expected there will be an early assessment does not mean that the legislative purpose of the scheme will be defeated if such matters may be referred to MAS for assessment prior to any trial. 4. I consider therefore that grounds 1-3 are made good. Notice of Contention 1. Before addressing ground 4, it is convenient to deal with the sole issue now sought to be raised by Ms Scott's notice of contention, namely that a "medical assessment matter" within the meaning of s 58 of the Act does not include a determination of the number of hours required for the provision of attendant care services within the meaning of ss 3 and 42 of the Act, as distinct from the causal relationship between the attendant care services to the injury and the reasonable necessity for such attendant care services (see notice of contention ground 2). 2. The argument raised by Ms Scott is that ss 3, 42 and 58 only make "medical assessment matters" capable of referral (i.e., whether treatment provided or to be provided was reasonable or necessary and whether it relates to the injury). Ms Scott argues that the "value" of the need for the attendant care services, for the purposes of the assessment of damages, is something to be determined in accordance with the CARS assessment process. 3. In particular Ms Scott points out that, pursuant to s 141B of the Act, compensation for attendant care services cannot be awarded if the service would have been provided to the injured person in any event and that the services need to be provided for at least 6 hours per week and for at least 6 months. It is submitted that a medical assessor would not be in a position to know that services would have been provided to a person even if that person had not been injured and would not know how long those services took to be provided before the person was injured. 4. The insurer contends that there is no basis for Ms Scott's contention that a dispute as to the number of hours of attendant care services required was not a medical assessment matter under the Act. It is submitted that a determination by the medical assessor of the numbers of hours required for attendant care services will often, though not necessarily always, be a necessary part of the determination of a dispute between the parties as to those services for the purposes of ss 58(1)(a) and (b) of the Act. The insurer further submits that medical assessors are independent expert medical practitioners and are well placed to determine the number of hours required for attendant care services in a dispute between the parties on such an issue. Determination 1. At a practical level, the certification by the respective medical assessors as to the number of hours of attendant care services that were, or would be, reasonable and necessary as a result of the injuries caused by Ms Scott's accident seems to have been a function of the way in which the medical dispute was identified by MAS. What the assessors were asked to determine was whether the range of hours that had been included in the particulars to Ms Scott's claim for the respective periods was reasonable and necessary. However, and without intending any criticism of the medical assessors, the somewhat formulaic determination of the identified disputes in this regard masks the fact that what each was in effect certifying was that, from 1 November 2010 onwards, no domestic assistance was reasonable and necessary in the circumstances. 2. Understood in that way, I do not accept ground 2 of Ms Scott's proposed notice of contention. The certification was in substance as to whether for particular periods, the claimed attendant care services were both reasonable and necessary, and causally related to the injuries caused by the accident. It is not necessary, therefore, to consider whether, had the disagreement between the parties been as to whether, say, 5 hours per week (as opposed to 10.5 hours per week) of domestic assistance was reasonable and necessary having regard to the injuries caused by the car accident, this would be a medical dispute capable of referral to MAS for determination. Ground 4 1. This ground of appeal challenges the primary judge's finding (at [87]) that there was no genuine dispute between the parties concerning s 141B of the Act. 2. The insurer submits that it had plainly put in issue both the claimed entitlement to damages for gratuitous care and the amount of that entitlement; and hence that there was a disagreement within the meaning of s 58(1) of the Act. 3. For Ms Scott it is argued that not only was there no "dispute" for the purposes of establishing the jurisdictional fact she argues was necessary for the proper officer to refer the matter for assessment, but also there was no genuine dispute at all. She emphasises that all that had occurred in this matter at the relevant time was the service of "particulars" of her claim and that there was no request for "treatment"; only a request for compensation. 4. At one level, the debate as to whether there was in fact a dispute as to the claim for attendant care services bordered on the farcical. 5. Ms Scott argues that there has never been a "request" that the insurer provide (attendant) care hence no treatment dispute (T 5.35). The fact that a "request" for payment had not been made was not to the point. Ms Scott claimed compensation for such services. The insurer did not accept (or agree with) the claim for attendant care services as particularised. If there were not a dispute as to the claimed attendant care services (be it some or any part of that claim) it would be difficult to see how this matter could properly have ended up in this Court, having regard to the mandatory provisions in ss 56-60 of the Civil Procedure Act 2005 (NSW). 6. The distinction sought to be drawn by Ms Scott is between a claim for Griffiths v Kerkemeyer damages and a claim that the services be provided (T 7.46). In essence, she says the medical dispute provisions were not intended to cover the quantification of damages rather than the provision of the medical treatment prior to the assessment (T 7.50 – 8.2). 7. Ms Scott, however, submits that the insurer's own medical practitioners did not support the asserted s 58 matters, that there was no evidence to support a conclusion that there was no such need (see T 17.3) and that, at best, there was an argument that on psychiatric grounds there was not a need for attendant care services (but no dispute that on physical grounds there was such a need). It is thus submitted that there was no disagreement about whether treatment to be provided was reasonable and necessary or related to the motor vehicle accident and hence there was nothing to refer for assessment. (Ms Scott accepts that there may have been a disagreement about the number of hours for which attendant care services were required; but says that was not a medical assessment matter, and thus was not a matter about which any dispute could be referred for assessment under s 58.) 8. The debate on this ground of appeal during the course of the oral submissions in this Court largely focussed on the question whether the existence of a medical dispute was a jurisdictional fact, such that in the absence of a dispute (objectively ascertained) (or a genuine medical dispute) the power of MAS to refer the matter for medical assessment was not enlivened. Ms Scott argues that the dispute must be objectively determined to be genuine (T 19.41). She accepted that, to a degree, the existence of a dispute would depend on assessment of the evidence at the particular time (T 9.8). She submitted that the Medical Assessment Guidelines were in the nature of delegated legislation (referring to ss 44 and 65(1) of the Act) and that breach of the Guidelines would "potentially" be an error of law (T 10.35). In this case, the breach (or at least one breach) was said to be as to the requirement that the parties have first made some attempt to resolve the specific treatment dispute before the dispute would be referred by the MAS (T 11.25). Given the perhaps unanticipated focus of that debate, leave was given to Ms Scott to file supplementary submissions dealing with this issue and for submissions in response by the insurer. Those were provided in accordance with the presiding judge's directions after the judgment was reserved. 9. For Ms Scott it is submitted that the primary judge's finding was correct and was consistent with the manner in which the insurer had presented its case, namely that the role of MAS under s 60 of the Act was facilitative and machinery only; and that no decision was to be made by the Authority. Ms Scott submits that no ground of appeal sought to challenge the finding that the existence of a medical dispute was a jurisdictional fact and that the insurer's submissions proceeded on the basis that the correct approach was for the Court to determine whether or not a genuine dispute existed between the parties. 10. Ms Scott submits that the dispute precondition in s 60 is a matter requiring a determination of objective fact and a jurisdictional fact in the strict sense, for the following reasons a number of which focus on the contrast between s 60 and s 62 of that Act. First, because, unlike s 62, no officer is designated to make the decision. Second, because, again unlike s 62, no words or qualification are prescribed by s 60 and there is no requirement that the Authority be "satisfied"; rather, the criterion is stated in objective terms. Third, because whether there is a dispute can be determined by reference to the parties' respective positions, rather than requiring (as s 62 does) an evaluation and acceptance of one party's position over another. Fourth, because determination of the objective fact of dispute is a "simple matter" unlikely to involve the court in lengthy proceedings or inconvenience. Fifth, because, unlike applications under s 62, there is no requirement under the guidelines for reasons. Sixth, by reference to the distinction drawn by this Court in Rodger v De Gelder [2011] NSWCA 97; (2011) 80 NSWLR 594 between the functions of the proper officer under s 62 compared to the functions of the Authority under s 60(2). Seventh, on the basis that the fact that s 60 was not amended at the time s 62 was amended (in October 2008) suggests a different operation was intended as between the two procedures. Finally, on the basis that the decision is that of an administrator not a court. 11. Ms Scott thus submits that the precondition in s 60 is of a different nature to that in s 62 and comprises a jurisdictional fact to be objectively determined; and that his Honour's finding in this regard should not be disturbed. 12. The insurer, somewhat inconsistently it would seem with the position it adopted below (at least as recorded by the primary judge) argues that the requirement that there be a medical dispute (or genuine medical dispute) as a precondition to the exercise of the power to refer a matter to a medical assessor in s 60 is not a jurisdictional fact. (The explanation proffered during argument on the appeal to the effect that anything could be treated as a jurisdictional fact did not assist in explaining the apparent change of position by the insurer (T 25.38-45).) 13. The insurer submits that the definition of medical dispute in s 57 (i.e., a disagreement or issue to which Pt 3.4 applies) is too wide and too uncertain in its limits meaningfully to act as a factor that must expressly condition the decision-making power of medical assessors in treatment disputes in s 61(1) of the Act. By way of example, it is contended that a medical dispute could simply be identified as an "issue" which relates or applies to Pt 3.4 of the Act. The insurer maintains that the primary judge erred in this regard. Determination 1. As articulated by the High Court in Gedeon v Commissioner of the New South Wales Crime Commission [2008] HCA 43; (2008) 236 CLR 120 at [43], the expression "jurisdictional fact" is used to identify a criterion the satisfaction of which enlivens the exercise of the statutory power or discretion in question, such that if the criterion be not satisfied then the decision purportedly made in exercise of the power or discretion will have been made without the necessary statutory authority required of the decision maker. 2. In QBE Insurance (Australia) Pty Ltd v Miller [2013] NSWCA 442 at [17], Basten JA identified two species of jurisdictional fact. It is the first of those species that Ms Scott argues is here to be found on the proper construction of s 60 of the Act: namely, the determination of the existence of an objective fact in the strict sense. If Ms Scott's contention is right, then it is for this Court to determine for itself, on the evidence before it, whether the precondition is satisfied (City of Enfield v Development Assessment Commission [2000] HCA 5; (2000) 199 CLR 135 at [48] per Gleeson CJ, Gummow, Kirby and Hayne JJ); i.e., that the fact existed at the relevant time (QBE at [17]; Timbarra Protection Coalition Inc v Ross Mining NL [1999] NSWCA 8; (1999) 46 NSWLR 55 at 64 per Spigelman CJ; D'Amore v Independent Commission Against Corruption [2013] NSWCA 187; (2013) 303 ALR 242 at [241] per Basten JA). Therefore, it would not be sufficient to determine that, on the material before the proper officer, the conclusion that there was a medical dispute was reasonably open. 3. It has been said that the principles applicable to the determination of whether something amounts to a jurisdictional fact are "settled, but necessarily imprecise" (Leeming JA writing extra-judicially, Authority to Decide: The Law of Jurisdiction in Australia, 1st ed, 2012, The Federation Press, at 65). Whether a fact is jurisdictional is purely a question of statutory interpretation (Timbarra at [37]) involving the weighing up of the text, structure and purpose of the legislation (Woolworths Ltd v Pallas Newco Pty Ltd [2004] NSWCA 422; (2004) 61 NSWLR 707 at [61]; Australian Heritage Commission v Mt Isa Mines Ltd (1995) 60 FCR 456 at 466B-468B). What is required (as explained by Spigelman CJ in Pallas Newco at [6]) is a careful analysis of the statute conferring the jurisdiction. Dixon J (as his Honour then was) said in Parisienne Basket Shoes Pty Ltd v Whyte [1938] HCA 7; (1938) 59 CLR 369 at 391, with respect to a matter going to the jurisdiction of a magistrate (referred to with approval in this Court in Trives v Hornsby Shire Council [2015] NSWCA 158 at [12] per Basten JA): It cannot be denied that, if the legislature see fit to do it, any event or fact or circumstance whatever may be made a condition upon the occurrence or existence of which the jurisdiction of a court shall depend. But, if the legislature does make the jurisdiction of a court contingent upon the actual existence of a state of facts, as distinguished from the court's opinion or determination that the facts do exist, then the validity of the proceedings and orders must always remain an outstanding question until some other court or tribunal, possessing power to determine that question, decides that the requisite state of facts in truth existed and the proceedings of the court were valid. Conceding the abstract possibility of the legislature adopting such a course, nevertheless it produces so inconvenient a result that no enactment dealing with proceedings in any of the ordinary courts of justice should receive such an interpretation unless the intention is clearly expressed. 1. In Trives, Basten JA qualified this principle to some extent, noting (at [13]) that it does not apply with the same force where the relevant decision maker is a non-judicial officer. His Honour noted (at [27]) that, where Parliament has conferred power on an administrator, the court will only intervene in limited circumstances and will not seek itself to answer the question. 2. The statutory scheme under which MAS is empowered to refer a medical dispute for assessment is clearly predicated on the existence of such a dispute. I have set out above the relevant provisions. 3. In both QBE and Rodger v De Gelder, this Court considered whether s 62 of the Act (which provides that a party to a medical dispute is entitled to seek a further assessment "but only on the grounds of the deterioration of the injury or additional relevant information about the injury") gave rise to a question of jurisdictional fact in the strict sense of existence as a matter of objective fact and held that it did not. The authority to refer an application for further assessment to a medical assessor under s 62 is impliedly conferred on the proper officer. In QBE, Basten JA at [31], referring to Plaintiff M70/2011 v Minister for Immigration and Citizenship [2011] HCA 32; (2011) 244 CLR 144 at [116] (Gummow, Hayne, Crennan and Bell JJ), considered that the statutory precondition to which s 62 gave rise involved a question of fact rather than of law and therefore was subject to the presumption that Parliament intended for it to be determined by the proper officer rather than by the Court. Similarly in Rodger v De Gelder this Court unanimously held that it was the proper officer, not the Court, to characterise the medical report in issue as "additional information" for the purposes of s 62 (Beazley JA, as her Honour then was, at [99]; Macfarlan JA at [113]; McColl JA agreeing with both). The capacity of the additional information to affect a further medical assessment was thus a matter for the subjective satisfaction of the proper officer. 4. Referral for medical assessment under s 60 is not expressed to be dependent on the state of satisfaction of the responsible officer; the Act instead providing a clear statement as to what is a "medical dispute" on receipt of which the Authority is to refer the matter for medical assessment. It cannot be assumed that the assessment whether there is, objectively ascertained, a dispute and the nature of that dispute will not require (at least in some cases) a complex factual enquiry; particularly if, added to that precondition is the requirement that it be genuine. The precondition that a person had applied for an exploration licence (Yarri Mining Pty Ltd v Eaglefield Holdings Pty Ltd [2010] WASCA 132; (2010) 41 WAR 134 at [41]-[61]) or had claimed that there has been an irregularity with an election (City of Subiaco v Local Government Advisory Board [2011] WASC 322 at [104]), was seen as a jurisdictional fact of a trivial nature, the existence of which triggered the valid exercise of the relevant statutory power. The determination as to whether a dispute was "genuine" (or supported by evidence) – which seems to be implicit in the complaint made in the submissions made by Ms Scott to MAS, i.e., the submission that if MAS did not accept the construction argument then an adjournment would be sought to adduce additional evidence can hardly be seen as necessarily a trivial exercise. 5. The construction of s 60 for which Ms Scott contends (that is, the existence of a (genuine) dispute is a jurisdictional fact which must be determined finally by the Court rather than by the proper officer) would have the extraordinarily impractical result that every claim of this kind would potentially commence with a dispute (in the nature of a rehearing as per s 75A of the Supreme Court Act 1970 (NSW)) as to whether the dispute was genuine or not. 6. Furthermore, the finding by the primary judge at [71] that the decision of an officer to refer a dispute for assessment is not amenable to certiorari is, if not contradictory to, at least incongruous with, his Honour's finding that the existence or otherwise of a dispute is a jurisdictional fact that can finally be determined by the Court. 7. In further support of the existence of a dispute being a matter to be determined by the proper officer rather than the Court, the insurer pointed in oral submissions (T 27.15) to the "self-contained regime" provided for under the Medical Assessment Guidelines: namely that the Authority has given its proper officer, through cl 8 of the guidelines, first, the power to determine whether the matter qualifies as a dispute; second, to call for evidence from the parties: and then to refer the matter or dismiss the application. On this view the only question on review of such a decision would be whether there was material available on which it was reasonably open to the proper officer be satisfied that there was a dispute. 8. On the material before this Court, as at the time that the application to refer the matter for medical assessment was made, the insurer's position was that it did not accept that there was a need for attendant care services as a result of the injury at least as that claim had been particularised. In simple terms, that can surely only be understood as the insurer disputing or disagreeing with the particularised claim. It may readily be accepted for present purposes that the insurer does not appear to have taken any steps to negotiate or resolve that dispute. However, s 60 in terms is not predicated on a "genuine dispute". If the fact is that the insurer did not accept the claimed need for domestic assistance as particularised, then it was on its face a medical dispute. A complaint as to whether the guidelines were complied with is not readily seen as a complaint as to the existence of a jurisdictional fact and, in submissions, Ms Scott did not suggest that the jurisdictional fact depended on or was created by the guidelines (as opposed to that statement) (see T 15.10). 9. The case was not framed by either party at first instance as a jurisdictional fact dispute. It appears that the issue was raised by his Honour, almost as an aside. Unhelpfully in light of the stance now taken by her, Ms Scott's counsel agreed that the existence of a dispute was a jurisdictional fact that the Court could decide for itself. Nevertheless, the issue was not fully ventilated at the hearing. 10. In my opinion, the existence of a medical dispute was not a jurisdictional fact in the strict sense for which Ms Scott contends. 11. Ground 4 of the grounds of appeal is therefore made out. Conclusion 1. For the reasons above, I am of the view that the appeal should be allowed and the relief sought by the insurer should be granted. In passing, I note that the basis for the order made by the primary judge prohibiting MAS from taking any further steps in the matter was not clear. In particular, it would appear to have precluded MAS from dealing with any further application that might have been made in the matter. I would have been inclined to set that order aside even had the appeal not been allowed. 2. As it is, I propose the following orders: 1. Appeal allowed with costs. 2. Set aside the judgment and orders made by Campbell J on 1 September 2015 and, in lieu thereof, dismiss with costs the plaintiff's summons seeking judicial review. 3. Grant the first respondent a certificate under the Suitors' Fund Act 1951 (NSW). 1. GLEESON JA: I agree with Ward JA. I also agree with the additional observations of Basten JA with one additional point of emphasis in relation to the matter referred to by his Honour at [15]. In my view, a medical assessment dispute as referred to in s 58 of the Motor Accidents Compensation Act 1999 (NSW) does not extend to a claim covered by s 15B(2) of the Civil Liability Act 2002 (NSW) for loss of the claimant's capacity "to provide gratuitous domestic services to the claimant's dependants". Section 15B applies to motor accidents: s 3B(2)(a1) and White v Benjamin [2015] NSWCA 75 at [3], [6] (Beazley ACJ) and [69] (Basten JA, Meagher JA agreeing). So much is made clear by the description of medical assessment matters in s 58(1)(a) as involving "the treatment provided or to be provided to the injured person …" [emphasis added], where "treatment" is relevantly defined to include "the provision of attendant care services": s 42. ********** Endnotes 1. MAC Act, s 60(1). 2. MAC Act, s 60(2). 3. MAC Act, s 57, medical dispute. 4. The terms of the section are set out below at [51]. 5. MAC Act, s 58(1)(a). 6. MAC Act, s 58(1)(b). 7. MAC Act, s 42, treatment. 8. MAC Act, s 3, attendant care services. 9. MAC Act, s 122(3). Amendments 11 April 2017 - Coverhseet and par 26 - CDJ v VAJ - deleted (No 2) and amended '[1998] HCA 76' to '[1998] HCA 67' Par 36 - deletion of the word 'whether' in the 18th line. 21 April 2017 - Par 2 - the word 'their' deleted and replaced with 'that' in the 2nd line. Par 5 - the word 'more' added between the words 'or' and 'medical' Par 7 - the word 'not' deleted in the 6th line Par 9 - footnote 4 - [49] amended to [51] 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: 21 April 2017