QBE Insurance (Australia) Limited v Meredith & Ors [2017] NSWSC 466

Supreme Court New South Wales

Medium Neutral Citation: QBE Insurance (Australia) Limited v Meredith & Ors [2017] NSWSC 466 Hearing dates: 21 March 2017 Decision date: 26 April 2017 Jurisdiction: Common Law Before: N Adams J Decision: (1) Quash the decision of the third defendant made on 30 June 2016. (2) Remit the matter to the second defendant for allocation to a review panel for determination according to law. (3) Reserve the question of costs. Catchwords: ADMINISTRATIVE LAW – judicial review – motor accidents compensation scheme – assessment of WPI referred to Review Panel – where several new medical reports indicated that there was a non-organic element to the condition of the first defendant – failure by Review Panel to refer to reports – whether denial of procedural fairness – whether reasons inadequate Legislation Cited: Motor Accidents Compensation Act 1999 (NSW), ss 5, 43, 57A, 58, 60, 63, 131, 133 Supreme Court Act 1970 (NSW), s 69 Cases Cited: Kirk v Industrial Court of New South Wales (2010) 239 CLR 531; [2010] HCA 1 Minister for Immigration and Border Protection v SZSSJ [2016] HCA 29 Mahenthirarasa v State Rail Authority of New South Wales (No 2) (2008) 72 NSWLR 273; [2008] NSWCA 201 Moran v Motor Accidents Authority [2013] NSWSC 1135 QBE Insurance (Australia) Limited v Davies [2016] NSWSC 536 RACQ Insurance Limited v Motor Accidents Authority of New South Wales (No 2) [2014] NSWSC 1126 Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82; [2000] HCA 57 Seller v Jones [2014] NSWCA 19 Stead v State Government Insurance Commission (1986) 161 CLR 141; [1986] HCA 54 Wingfoot Australia Partners Proprietary Ltd v Kocak (2013) 252 CLR 480; [2013] HCA 43 Zahed v IAG Limited t/as NRMA Insurance [2016] NSWCA 55 Category: Principal judgment Parties: QBE Insurance (Australia) Limited (Plaintiff) Leza Pam Meredith (First Defendant) The State Insurance Regulatory Authority (Second Defendant) The Medical Assessors Review Panel (Third Defendant) Representation: Counsel: Mr K P Rewell SC (Plaintiff) Mr T Saunders (First Defendant)

Solicitors: Moray & Agnew (Plaintiff) RMB Lawyers (First Defendant) NSW Crown Solicitor (Second and Third Defendants) File Number(s): 2016/00291817 Publication restriction: Nil

JudgmenT 1. On 28 October 2010, the first defendant Leza Meredith was involved in a motor vehicle accident in which she sustained injuries to her neck and shoulder. She claimed damages for her injuries under the Motor Accidents Compensation Act 1999 (NSW) ("the Act"). 2. The plaintiff, QBE Insurance (Australia) Limited ("QBE"), is the compulsory third party insurer of the vehicle said to be at fault. QBE disputed that Ms Meredith suffered a Whole Person Impairment ("WPI") of greater than 10%. 3. On 26 March 2013, QBE made an application to the Motor Accidents Medical Assessment Service ("MAS") for determination of the dispute as to Ms Meredith's WPI. The MAS is a unit within the State Insurance Regulatory Authority ("SIRA"), which is the second defendant in these proceedings. Dr William Bye, a medical assessor at SIRA, assessed Ms Meredith's physical injuries and issued a certificate. Ms Meredith was dissatisfied with Dr Bye's assessment and subsequently applied to refer it to a review panel of medical assessors ("the Review Panel") pursuant to s 63 of the Act. The Review Panel determined the review on 30 June 2016. It is the third defendant in these proceedings. 4. By amended summons filed on 10 November 2016, QBE invokes this Court's supervisory jurisdiction, regulated by s 69 of the Supreme Court Act 1970 (NSW), in respect of the decision of the Review Panel on 30 June 2016. QBE claims, inter alia, relief in the nature of certiorari quashing that determination. 5. The alternative bases for the relief sought are either that there has been a denial of procedural fairness because relevant material upon which QBE relied was not provided to the Review Panel or, if that material was provided, the reasons of the Review Panel are inadequate in that they make no reference at all to that material. It is accepted that the asserted denial of procedural fairness ("the first error"), if made out, would amount to jurisdictional error and that inadequacy of reasons ("the alternative error"), if made out, would amount to an error of law on the face of the record. 6. SIRA and the Review Panel have both filed submitting appearances in this matter.

Relevant legislation 1. The Act has as one of its objects to provide compensation for compensable injuries sustained in motor vehicle accidents: s 5(1)(b). Section 131 of the Act provides that no damages may be awarded for non-economic loss unless the degree of permanent impairment of the injured person as a result of an injury caused by a motor vehicle accident is greater than 10%. 2. The provisions of Chapter 3 of the Act apply to injuries caused by motor vehicle accidents: s 43(3). Part 3.4 of Chapter 3 governs the medical assessment of injuries caused by motor vehicle accidents in cases where there is a disagreement between a claimant and an insurer as to, among other things, whether the degree of permanent impairment of the injured person is greater than 10%: s 58(1)(d). Section 57A requires SIRA to establish a Motor Accidents Medical Assessment Service. 3. Section 60 of the Act provides that a "medical dispute" may be referred to SIRA for assessment under Part 3.4 by either party to the dispute. A "medical dispute" is defined as any disagreement or issue to which Part 3.4 applies: s 57. Section 63(1) provides that a party to a medical dispute may apply to refer a medical assessment by a single medical assessor to a review panel of medical assessors. Such an application may only be made on the grounds that the assessment was incorrect in a material respect: s 63(2).

Procedural history 1. In order to understand the nature of QBE's complaint it is necessary to set out the procedural history of the dispute. 2. As at 26 March 2013 there were in fact two disputes as between QBE and Ms Meredith: the "impairment dispute", concerning whether Ms Meredith suffered a WPI of greater than 10%, and the "treatment dispute", concerning whether she required medical treatment in the form of radiofrequency neurotomy ("RFN"), which is a procedure whereby heat waves are delivered to targeted areas by use of needles. 3. On 6 August 2013, Ms Meredith was assessed by Dr Parmegiani, psychiatrist. He subsequently issued a certificate on 27 August 2013 assessing Ms Meredith's WPI caused by psychological injuries as 8%. That assessment is not relevant to the dispute between the parties because, in assessing the degree of permanent impairment, regard may not be had to any psychiatric or psychological injury, impairment or symptoms unless the assessment of the degree of permanent impairment is made solely with respect to the result of a psychiatric or psychological injury: s 133(3) of the Act. 4. On 11 September 2013, Dr Bye assessed Ms Meredith's physical injuries. He issued a certificate assessing her WPI as 0% in respect of soft tissue injuries to the neck and right shoulder. He also determined that she did not suffer any assessable injury to her left shoulder caused by the accident. As for the treatment dispute, Dr Bye determined that the proposed RFN treatment was not reasonable and necessary nor related to any injury caused by the accident on 28 October 2010. 5. Dr Bye noted in his report that Ms Meredith held her head in "ramrod" position during the examination and would swivel her chair to speak to him directly, yet when she was dressing and undressing she had "freer movements of the neck". He noted "significant pain induced behaviour" in relation to the left shoulder, which made its movements difficult to assess. He later noted that, "There were significant inconsistencies in the presentation in that neck movements were very restricted on requested range of movement but more in evidence on observed movements." 6. Dr Bye referred to a surveillance video in which Ms Meredith was recorded walking "with no obvious pain experience". He noted that the video showed that, "…she had free arm swing and…demonstrated reasonable range of neck movements." He referred to further surveillance in which Ms Meredith was observed to be using a mobile phone. He noted a "very good range of neck rotation" in the footage. Dr Bye concluded that there was "…freer movement of the neck and shoulders as compared to the time of [his] assessment some 5 months later." 7. Ms Meredith subsequently applied to SIRA for review of Dr Bye's assessment pursuant to s 63 of the Act on the basis that it was incorrect in a material respect. She noted that Dr Bye had found asymmetry of the cervical spine, which was not then reflected in his assessment of her WPI. That application was accepted and the assessment referred to the Review Panel. 8. On 20 February 2014, the Review Panel assessed Ms Meredith. It comprised Assessors Burns, Kenna and Maloney. On 9 April 2014, it revoked Dr Bye's certificate and issued a further certificate in its place. In relation to the treatment dispute, the Review Panel determined that the RFN treatment was reasonable and necessary and related to the injury resulting from the accident. The treatment dispute was therefore resolved. As for the impairment dispute, the Review Panel concluded that the injuries to Ms Meredith's cervical spine and left shoulder had not yet stabilised. Despite so finding, the Review Panel indicated its "preliminary" view that Ms Meredith's physical injuries gave rise to 13% WPI, comprising 5% for the cervical spine and 8% for the left shoulder. It was made clear that this "preliminary" finding did not form part of the certificate, given that it was the view of the Review Panel that the injury had not as yet stabilised. The Review Panel considered that Ms Meredith's injuries would be capable of assessment 12 months after treatment with RFN. 9. On 7 June 2014, Ms Meredith underwent further treatment by way of RFN. 10. Nearly two years elapsed. On 6 April 2016, Ms Meredith's solicitor informed SIRA that her injuries had now stabilised and that the Review Panel could assess her WPI. On 8 April 2016, SIRA wrote to QBE's solicitor inviting QBE to submit "updated medical information" relating to the RFN treatment, "any other relevant medical information" and "any relevant documents the parties wish the Review Panel to consider". 11. On 6 May 2016, QBE's solicitor forwarded to SIRA, inter alia, five medical reports created after Ms Meredith had undergone RFN in June 2014 and thus after the issue of the Review Panel's previous certificate. 12. The first report was of Dr Paul Spira, neurologist, dated 14 October 2015. He examined Ms Meredith on 13 October 2015 and observed the following: "Upper and lower limb muscle tone and bulk were normal but on power testing it was evident that Ms Meredith was giving way under minimal effort with her left upper limb and in both lower limbs indicating that any effort tended to be met with pain. Nonetheless, when I distracted her by drawing her focus to the right shoulder abductors she exerted good effort with the right shoulder abductors and demonstrated normal counter pressure with the left shoulder. When tested directly, however, the left shoulder collapsed under minimal effort in a functional fashion." 1. Ms Meredith reported to Dr Spira that the RFN had had no beneficial effect. It was his opinion that Ms Meredith's clinical picture remained "replete with non-organic features". He stated that: "I believe that her neck and back pains are primarily myalgic in form with a great deal of elaboration of disability evident during the examination. In objective terms there is nothing to support the cervical or lumbar nerve root involvement." 1. Dr Spira also stated that: "I believe that Ms Meredith is greatly overvaluing the significance of her injuries and there is clear evidence of embellishment of disability in the physical examination. I believe that at most she has a moderate tension myalgia which is greatly exaggerated by her." 1. The second report that SIRA provided to QBE was that of Dr Neil McGill dated 6 August 2015. Dr McGill is a rheumatologist who examined Ms Meredith on 6 August 2015. He had previously seen her on 31 July 2012 and 5 March 2014. He stated the following: "During the formal assessment of neck movement she performed extremely restricted movements in all directions (10% of normal). The range was symmetrical. In contrast, when reporting pain in the left upper limb during the assessment of left upper limb power, she rotated her neck to the left and right, in each direction on at least two occasions, to a least 50° of rotation, far in excess of her alleged capacity when asked to demonstrate neck movement." 1. Dr McGill further stated that, "In summary, the physical examination revealed a pattern of behaviour inconsistent with organic disease." He did not think that there was a physical relationship between Ms Meredith's current complaints and the motor vehicle accident. 2. The third report provided to SIRA by QBE was that of Dr Michael Ryan dated 20 July 2015. Dr Ryan is an orthopaedic surgeon who examined Ms Meredith on 20 July 2015. He noted that she exhibited: "…signs of pain behaviour, sighs and heavy breathing, whilst climbing on and off a couch and, when lying flat, lower limb examination. … She displayed irregularity of effort which did not allow accurate determination of strength on left hand dorsiflexion, palmar flexion, intrinsic and long finger flexion muscle assessment." 1. Although Dr Ryan was of the view that Ms Meredith did injure her neck in the motor vehicle accident and that her symptoms did relate to that injury, he observed that, "Ms Meredith seems set in an injury role." 2. The fourth report was that of Dr Seamus Dalton, dated 18 September 2015. He is a consultant in rehabilitation medicine who examined Ms Meredith on 30 June 2015. He had previously examined her and prepared a report dated 17 March 2014. He noted that: "As before, she was very guarded and avoidant with movements at her left shoulder and resisted passive elevation or abduction beyond 45 degrees. There was no periscapular or glenohumeral tenderness and rotator cuff function was normal with no weakness and only mild discomfort on manual muscle testing." 1. Dr Dalton stated that: "She was particularly symptomatic on the day of this assessment, reporting increased headache, neck pain and left upper limb symptoms. As I noted previously she remains very guarded and avoidant with left shoulder movement with obvious muscle contraction limiting active or passive movement of the shoulder. There was less guarding when she was lying supine and it was very evident from this assessment that when Ms Meredith was able to relax then her shoulder mobility improved accordingly. As I have commented previously I would refer to independent psychiatric and/or psychological opinion in determining whether Ms Meredith suffers from an Anxiety or Adjustment Disorder but it is clear to me that her chronic pain state and physical symptoms and related disabilities are to a significant extent being psychologically maintained. A number of inconsistencies and non-organic clinical signs were noted at this assessment as was the case a year ago. To some extent this can be related to her avoidant behaviour and limited pain-coping strategies but there are also features of abnormal illness behaviour as I have opined previously." 1. The fifth and final reports were from Dr Selwyn Smith dated 18 November 2014 and 18 April 2016. He is a psychiatrist who examined Ms Meredith on 14 November 2014 for the purposes of the first report. His psychiatric opinion in the first report was as follows: "….Ms Meredith is displaying significant pain focused behaviour that by her own account has been distressing and has resulted in significant disruption to her daily life. By her own account Ms Meredith reported significant pain symptoms. She described a disproportionate response in regard to the significance of her symptoms based upon the paucity of clinical findings. She also described a persistent high level of anxiety about health. She has been focused on her treatment needs which significantly, and despite being extensive to date, have not assisted her or resulted in amelioration of her symptoms to any degree. Indeed by her own account her symptoms have deteriorated with time."

The reasons of the Review Panel 1. On 23 June 2016, the three experts who constituted the Review Panel that determined the treatment dispute in April 2014 reconvened for the purposes of determining the impairment dispute. They assessed Ms Meredith on that date. 2. On 30 June 2016, the Review Panel issued a certificate and published its reasons. It considered that Ms Meredith's condition had stabilised. The Review Panel assessed Ms Meredith's WPI as being 13%, comprising 5% for the cervical spine and 8% for the left shoulder. It is to be noted that this was identical to the "preliminary" assessment of impairment made by the Review Panel in its certificate of 9 April 2014. 3. The reasons commence by noting that Dr Bye's assessment of Ms Meredith's WPI was referred to the Review Panel under s 63(3) of the Act. It is noted that: "The Panel members confirmed that they had received and considered the following documentation: 1. The certificate including the reasons issued by Assessor Bye on 11 September 2013. 2. Application form seeking a review and attached documents. 3. Reply form and attached documents. 4. The determination issued by the Proper Officer on 20 April 2016 [sic, 20 April 2014] referring this matter to a Review Panel. 5. All the documents which were provided to us Assessor Bye prior to the assessment under review." 1. The Review Panel sets out the findings of Dr Bye in 2013 under the heading "Evidence Considered", but does not describe any of the material upon which he based those findings. There is no reference made to Dr Bye's observation that Ms Meredith might be exaggerating her symptoms. The reasons then describe the views that the Review Panel had taken in 2014. The Review Panel considered then that RFN could alter the outcome for the range of movement of Ms Meredith's left shoulder. It was of the view that the accident was a cause of the claimed injuries to the cervical spine and left shoulder, but that the impairment was not yet permanent. It noted that it had declined to make an assessment of the degree of permanent impairment resulting from the injuries, considering that such an assessment would be possible 12 months after the RFN. 2. The reasons then describe the Review Panel's subsequent reassessment of Ms Meredith on 23 June 2016. Ms Meredith's complaint that the RFN procedure was very painful is noted, as is her view that she had derived no real benefit from it. She was not prepared to have the treatment repeated. 3. Under the heading "Additional Evidence", the Review Panel sets out its conclusions as to its examination of Ms Meredith in 2016 when compared with its findings in 2014. It makes references in table form to comparisons in the assessment of flexion, extension, abduction, adduction, internal rotation and external rotation. Under the heading "Panel Deliberations", the following is then recorded: "On this particular occasion, it was noted that there was consistency of finding and on repetition. A maximal effort was considered to have occurred. Nevertheless, it needed to be noted that there was a symmetric range of movement pertaining to the cervical spine but no clear neurological deficit distally in either upper extremity. The right shoulder demonstrated full range of movement but on repetition of range of movement pertaining to the left, it was considered once again there was consistency on presentation and indeed the overall level of impairment was surprisingly similar to previously." 1. Under a heading "Panel Decision", the Review Panel noted that there had been no change and concluded that Ms Meredith's condition had stabilised. The reasons go on to note under the heading "Permanent Impairment": "The Review Panel's findings in relation to the degree of permanent impairment of the injuries caused by the accident are different to the findings as stated in the Permanent Impairment certificate issued by Assessor Bye and consider that the condition has stabilised and was greater than 10% (i.e. 13% whole person impairment). Accordingly, the Review Panel has determined at the second teleconference of 24 June 2016 that this certificate is to be revoked and a new Permanent Impairment certificate be issued by the Review Panel confirming that the conditions were permanent."

The grounds of review 1. QBE relied upon five errors identified in its amended summons as follows: "1. The Review Panel failed to take into account relevant considerations, namely the opinions of Dr Spira, Dr McGill, Dr Ryan and Dr Dalton; 2. The Review Panel failed to give proper genuine and realistic consideration to the evidence before it, or (if the Second Defendant failed to forward the reports to the Review Panel) to evidence that it was required to consider but did not consider; 3. The Review Panel failed to engage with or to consider the issues raised in the reports of Dr Spira, Dr McGill, Dr Ryan, Dr Dalton; namely that the First Defendant's physical symptoms were deliberately exaggerated or embellished, and/or were non-organic in origin and/or a product of "pain behaviour"; that the First Defendant does have any assessable injury to the shoulder; 4. The Review Panel denied procedural fairness to the Plaintiff; 5. The Review Panel's failure to consider the medical reports and clinical records forwarded by the Plaintiff to the Second Defendant on 6 May 2016 amounts to a constructive failure to perform its statutory task." 1. As stated above at [5], the errors alleged in the five grounds pleaded in the amended summons can be grouped together in two categories; namely, the first error and the alternative error.

The hearing 1. Mr Rewell of senior counsel appeared at the hearing on behalf of QBE and Mr Saunders of counsel appeared on behalf of Ms Meredith. 2. An affidavit of Scott Graham affirmed 28 November 2016 was read and the documents exhibited to his affidavit tendered. A second affidavit of Scott Graham affirmed 15 February 2017 was also read. It annexed correspondence between QBE's solicitor and the Crown Solicitor's Office, which acts for SIRA. 3. In a letter sent by QBE's solicitor to the Crown Solicitor's Office on 21 December 2016, confirmation was sought that SIRA had forwarded the five medical reports referred to above at [20] – [30] to the Review Panel for consideration. By letter dated 1 February 2017, a solicitor at the Crown Solicitor's Office responded that, "I have now received instructions from the State Insurance Regulatory Authority confirming that these reports were provided to the Review Panel on 10 May 2016."

Submissions on behalf of QBE 1. The primary submission advanced on behalf of QBE by Mr Rewell was that there had been a denial of procedural fairness. He submitted that the evidence suggests that the additional material did not make its way to the three assessors who comprised the Review Panel. This is apparent from the face of the reasons, which lists the material that was before the Review Panel but makes no mention of any of the new reports. 2. In the alternative, if the Court were not satisfied that the material was not available to the Review Panel, the reasons are inadequate because the Review Panel makes no reference whatsoever to any of the reports of QBE's medical experts. There is thus error of law on the face of the record. 3. Mr Rewell accepted that a decision-maker is not required to comment specifically on each and every piece of evidence relevant to a decision, but that it must be demonstrated that relevant information was given "real and genuine consideration": Moran v Motor Accidents Authority [2013] NSWSC 1135 at [55]. He submitted that it may reasonably be concluded that the Review Panel either overlooked the reports, ignored their contents and the opinions expressed in them, or put them to one side for some other reason. 4. Mr Rewell referred the Court to the contents of each of the reports and noted that the Review Panel failed to engage with or consider any of the issues that the reports raise; namely, that Ms Meredith has deliberately exaggerated or embellished her condition and/or that her impairment is non-organic in origin or a product of "pain behaviour". 5. The position advanced on behalf of QBE was that, in the event that I grant the relief sought in its summons, I should make an order that a differently constituted review panel consider the matter.

Submissions on behalf of Ms Meredith 1. Mr Saunders submitted that the Review Panel had clearly assessed and rejected the opinion of Dr Bye, which is the same opinion as stated in the reports of Dr Spira, Dr McGill, Dr Ryan, and Dr Dalton. 2. It was submitted that the additional reports were consistent with the observations of Dr Bye. In that way, the express rejection of Dr Bye meant that there was no need to refer expressly to the additional reports. 3. Mr Saunders submitted that whether Ms Meredith performed a range of movements of her left shoulder was not a contentious area of medical expertise and did not require the Review Panel to furnish further detailed reasons. 4. It was conceded during submissions that, if I were satisfied that the material had not made its way to the Review Panel, that would constitute a denial of procedural fairness. Despite this, Mr Saunders submitted that I could not be satisfied that the material was not before the Review Panel, given the correspondence from the Crown Solicitor's Office confirming that it had been forwarded. It was also conceded that the reasons make no reference to the additional medical reports. 5. Mr Saunders relied upon a number of decisions that deal with the requirement for reasons, including RACQ Insurance Limited v Motor Accidents Authority of New South Wales (No 2) [2014] NSWSC 1126; QBE Insurance (Australia) Limited v Davies [2016] NSWSC 536; Wingfoot Australia Partners Proprietary Ltd v Kocak (2013) 252 CLR 480; [2013] HCA 43; and Campbelltown City Council v Vegan (2006) 67 NSWLR 372; [2006] NSWCA 284. 6. Mr Saunders opposed the application that this matter be remitted to a differently constituted review panel. He relied upon the significant delay since the accident and the fact that, if a new review panel had to start afresh, there would be further unnecessary delay. Ms Meredith would effectively be required to start anew. He submitted that QBE would need to establish apprehended bias before an order could be made in those terms.

Consideration 1. A failure to afford procedural fairness to a party constitutes both jurisdictional error and error of law within jurisdiction: Kirk v Industrial Court of New South Wales (2010) 239 CLR 531; [2010] HCA 1 at 569 [60], citing Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82; [2000] HCA 57 at 89 [5], 91-101 [17]-[42], 143 [170]. 2. At common law, procedural fairness is implied as a condition of the exercise of a statutory power. That is, as a matter of statutory construction, any statute conferring a power that can affect the interests of an individual is to be construed as conferring the power conditionally in that it must be exercised in a manner that affords procedural fairness to that individual. This presumption operates unless a contrary intention is clearly indicated: Minister for Immigration and Border Protection v SZSSJ [2016] HCA 29 at [75]. 3. In this matter, QBE claims that it has been denied the opportunity to be heard because the Review Panel made its decision without having before it important documents upon which QBE relied, in circumstances where QBE was not aware of this at the time of the decision. I am satisfied that there is nothing in the Act that would oust the operation of the principles of procedural fairness by plain words of necessary intendment. 4. It was conceded on behalf of Ms Meredith that if I am satisfied that the additional material did not actually make its way to the Review Panel, then there has been a denial of procedural fairness. Mr Saunders' position was that I could not be so satisfied, given the evidence before the Court on this issue. 5. The state of that evidence was somewhat unsatisfactory. On the one hand, the letter from the Crown Solicitor's Office to QBE's solicitor dated 1 February 2017 states that the material was provided to the Review Panel. Despite this, the reasons contain a list of all of the documents that the Review Panel had before it when it made its decision. There is no reference to any of the new reports in that list. Indeed, the reasons omit any reference at all to the new reports. 6. Both SIRA and the Review Panel are parties to these proceedings. They both filed submitting appearances and thus played no active role at the hearing. Although it is to be accepted that the practice of decision-makers and the statutory bodies of which they are a part is to file submitting appearances, the Court would have been assisted in this matter by some indication by the members of the Review Panel as to what had happened to the additional reports. It would have been open to the Review Panel, which as a party is presumably aware of these proceedings, simply to put on some evidence explaining what occurred without being required to play any further role as a contradictor in the proceedings. 7. I have given consideration as to whether the list of those documents that were before the Review Panel (extracted above at [33]) could be read as including the new reports by way of implication. I am not satisfied that it can be. All of the documents to which the reasons refer in general terms predate the creation of the missing additional reports. 8. Overall, I am not satisfied that the three members of the Review Panel had the additional reports before them when they came to consider this matter. Whether this was because of oversight or otherwise remains, unfortunately, unknown. I am satisfied that if the material were before them it would have been listed at the beginning of the reasons where the other documents to which the Review Panel had regard are listed. 9. I am thus satisfied that the Review Panel failed to afford QBE a fair opportunity to be heard. Had the proceedings before the Review Panel been by way of hearing, the oversight would no doubt have been obvious. The Review Panel does not, however, conduct open hearings, thus there was no opportunity for QBE to correct the oversight. A practical injustice has occurred because QBE has been denied the opportunity that fairness dictated ought to have been afforded to it. 10. Not every failure to afford procedural fairness will be a jurisdictional error vitiating an administrative decision. The granting of relief is justified unless it can be shown that the failure did not deprive the person of the possibility of a successful outcome: Stead v State Government Insurance Commission (1986) 161 CLR 141; [1986] HCA 54 at [16]. If it can be shown that the denial of procedural fairness could have no bearing on the outcome, relief might be declined as being futile: Re Refugee Review Tribunal; Ex parte Aala at [4], [80], [104], [131]–[132], [211]–[212]. 11. In this matter, QBE relied upon five reports that all included expert opinions contrary to the conclusion of the Review Panel. It could not be said that the failure of these documents to be before the Review Panel could not have had any bearing upon the outcome. On the contrary, the evidence was of some significance to the issues to be resolved. The Review Panel was reviewing the findings of Dr Bye, which were consistent with the additional reports. The extent to which Ms Meredith's injuries had a "non-organic" or functional element was a central factual issue in dispute. 12. Given that I am satisfied that QBE was denied procedural fairness in this matter and there has been a jurisdictional error, there is no need for me to go on to consider the alternative error for which QBE contends. That alternative error is that, even if the documents were before the Review Panel, the reasons are inadequate in that they made no reference to the documents. Nonetheless, I propose to consider that alternative argument as well. 13. Failure to provide adequate reasons when there is a statutory requirement to do so may amount to error of law on the face of the record. As the High Court observed in Wingfoot Australia Partners Pty Ltd v Kocak, when considering a decision on a Victorian statute that required a medical panel to give reasons (at [55]): "The statement of reasons must explain the actual path of reasoning by which the medical panel in fact arrived at the opinion the Medical Panel in fact formed on the medical question referred to it. The statement of reasons must explain that actual path of reasoning in sufficient detail to enable a court to see whether the opinion does or does not involve any error of law. If a statement of reasons meeting that standard discloses an error of law in the way the Medical Panel formed its opinion, the legal effect of the opinion can be removed by an order in the nature of certiorari for that error of law on the face of the record of the opinion. If a statement of reasons fails to meet that standard, the failure is itself an error of law on the face of the record of the opinion, on the basis of which an order in the nature of certiorari can be made removing the legal effect of the opinion." 1. The duty imposed on medical assessors to give reasons was considered in Campbelltown City Council v Vegan, where the Court (Basten JA, with whom McColl J agreed) stated at [121] – [122]: "Where it is necessary for the Panel to make findings of primary fact, in order to reach a particular conclusion as to the existence, nature and extent of any physical impairment, it may be expected that the findings of material facts will be set out in its reasons. Where facts are in dispute, it may be necessary to refer to evidence or other material on which findings are based, but the extent to which this is necessary will vary from case to case. More importantly, where 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. That aspect may have particular significance in circumstances where the medical members of a Panel have made their own assessment of the applicant's condition and have come to a different conclusion from that reached by other medical practitioners, as set out in reports provided to the Panel. On the other hand, to fulfil a minimum legal standard, the reasons need not be extensive or provide detailed explanation of the criteria applied by medical specialists in reaching a professional judgment: see Soulemezis at 273-274 (Mahoney JA) and 281-282 (McHugh JA). At least, that will be so where the medical science is not controversial: if it is, a more expansive explanation may be required." [emphasis added] 1. The question of adequacy of reasons was more recently considered by the Court of Appeal in Zahed v IAG Limited t/as NRMA Insurance [2016] NSWCA 55 ("Zahed"). That decision concerned the adequacy of reasons given by an assessor under the Act. The Court was satisfied that inadequate reasons had been provided. As to the contents of reasons, Leeming JA observed at [9]: "The reasons need not be long. Indeed, there will be many cases, of which I suspect this is one, where a single sentence would suffice. But to say merely that all of the conflicting evidence was taken into account is, in the facts of this case, insufficient. The matter may be tested against the parties' rights of review: how are the parties to know whether the reasoning is affected by judicially reviewable error of law?" 1. Emmett AJA observed at [34]: "The statement of reasons must explain the actual path of reasoning in sufficient detail to enable a court to see whether the opinion does or does not involve any error of law: see Wingfoot Australia Partners Pty Limited v Kocak [2013] HCA 43; 252 CLR 480 at [55]." 1. In the present case, there was clearly a factual dispute as to whether the injuries were attributable to the accident, whether Ms Meredith was exaggerating her symptoms, or whether her chronic pain state was being psychologically maintained. Dr Bye had raised this issue in his certificate. Although the Review Panel made some preliminary findings when they first considered the matter in 2014, nowhere in the 2016 reasons is any reference made to this issue at all. The only reference to Dr Bye is to his findings, not his reasons. 2. It is of some interest that the reasons include an observation (extracted at [36] above) that the overall level of permanent impairment was "surprisingly similar to previously". That is, there was no improvement even after treatment with RFN and the effluxion of a further two years. One of the explanations for that could have been, as the reports relied upon by QBE opine, that there was some exaggeration of symptoms by Ms Meredith or an underlying psychological component. Yet despite this observation by the Review Panel, it makes no reference at all to the five reports that may have been able to throw some light on the issue. 3. I have had regard to the argument put on behalf of Ms Meredith that there was no need for the Review Panel to have regard to any of those reports because, when it rejected Dr Bye's assessment in 2014 in the preliminary report, that involved a rejection of an argument that there was any exaggeration of symptoms and thus there was no need to revisit that matter by having regard to QBE's additional reports. I do not accept this submission. On the contrary, it is the fact that five medical experts agreed with the observations made by Dr Bye, which observations were implicitly rejected by the Panel, that meant that it was important for QBE to know why the Panel also rejected the material contained in the four new reports. 4. I am satisfied that, even if the additional reports were before the Review Panel and considered by it, error of law on the face of the record is disclosed in that the reasons are inadequate. The inadequacy is obvious from the fact that there is no reference at all made to the factual dispute between the parties and, in particular, no explanation at all as to how the factual dispute was resolved and why none of the findings of QBE's experts were accepted by the Review Panel.

Appropriate orders 1. QBE has established jurisdictional error (the first error) and error of law on the face of the record (the alternative error). The granting of relief in proceedings for judicial review is discretionary. No reasons were advanced as to why the relief should not be granted. Although the proceedings have been delayed since the matter was first referred to the MAS in October 2013, there has been no undue delay on the part of QBE in bringing these proceedings for judicial review. 2. I propose to quash the decision of the Review Panel made on 30 June 2016 and remit the matter to SIRA for referral to a review panel to be determined according to law. The question is whether that order should include a direction that SIRA allocate the matter to a differently constituted review panel. 3. It was the position of QBE that any person reading the reasons might reasonably take the view that the Review Panel had committed itself to a particular outcome. It made a preliminary decision in 2014 and did not alter that position, notwithstanding the provision of further material (which may or may not have been before it) and the passage of time. Mr Rewell informed the Court that, if I do not make an order directing that the matter be considered by a differently constituted review panel, application will be made once the matter is remitted to SIRA for that to occur. This will cause more delay. It was submitted that such delay could be avoided if I were to make the order for remittal subject to that stipulation. 4. It was the position of Ms Meredith, on the other hand, that she has already experienced a delay of nearly seven years since the accident and if the matter were to be remitted to a differently constituted review panel she would effectively join the "bottom of the queue" and significant further delay would be occasioned. 5. I have considered the competing arguments. One of the difficulties is the absence of any material as to why the Review Panel did not refer to the new reports at all in its reasons. I have concluded that QBE has established that the reports were not considered, but I have done so in the absence of any indication from the Review Panel as to the actual situation. It seems to me that, if it were established that the reports were in fact before the Review Panel and that they were intentionally disregarded, there would be some force to Mr Rewell's submission. I have found, however, that the material before me establishes that the more likely situation is that the documents did not physically make their way to the three members of the Review Panel. 6. In the circumstances, I am not satisfied that any apprehended bias or pre-judging of the matter has been demonstrated such that it would be appropriate to remit the matter to SIRA for allocation to a differently constituted review panel. Moreover, I accept the submission made on behalf of Ms Meredith that there has been considerable delay so far, none of which is attributable to her. 7. Accordingly, I do not propose to order that SIRA refer the matter to a differently constituted review panel. Despite this, it would nonetheless be open to SIRA, should it subsequently be satisfied that the documents were in fact before the Review Panel and disregarded by it without explanation, to refer the matter to a differently constituted review panel of its own accord. 8. During the hearing of the summons, Mr Saunders raised the issue of the appropriate costs order. He submitted that, if QBE were successful in its summons, it would have been through no fault of Ms Meredith. Rather, the fault would lie with SIRA and/or the Review Panel, both of which have filed submitting appearances. He indicated that he had put them on notice that Ms Meredith would seek that they pay costs in the event that QBE is successful. I indicated at that time that I would reserve the question of costs and I propose to do so. 9. It is not the case that costs will never be ordered against a submitting party; it is necessary to have regard to the relevant contextual considerations, including the conduct of the parties to the litigation: Seller v Jones [2014] NSWCA 19 at [59]; Mahenthirarasa v State Rail Authority of New South Wales (No 2) (2008) 72 NSWLR 273; [2008] NSWCA 201 at [7]. Despite this, I am unaware of any precedent in this Court for a decision-maker to be ordered to pay costs in proceedings for judicial review. 10. QBE has been successful. The appropriate order is that its costs be paid. The only outstanding issue is who of the three defendants should pay those costs in circumstances where two of those defendants filed submitting appearances and played no part in these proceedings.

Orders 1. I make the following orders: 1. Quash the decision of the third defendant made on 30 June 2016. 2. Remit the matter to the second defendant for allocation to a review panel for determination according to law. 3. Reserve the question of costs.

********** 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: 08 May 2017