Australia: MAS Proper Officer´s Decision To Reject Application In Error Is Subject To Judicial Review

Last Updated: 28 September 2009
Article by Cherilyn Ribbons

Judgment date: 11 September 2009

Transport Accident Commission of Victoria v Motor Accidents Authority of New South Wales & Ors

Supreme Court of NSW1

In Brief

  • The discretion of MAS proper officers to dismiss an application for Further Medical Assessment is conferred by s 62(1B) but the scope of the discretion is curtailed by the MAA Permanent Impairment Guidelines.


A decision of a MAA Medical Assessment Service's Proper Officer, dated 14 January 2009, was the subject of judicial review before Patten AJ.

The insurer sought an order pursuant to s 69 of the Supreme Court Act quashing the certificate and consequential relief.

The Supreme Court agreed the Proper Officer had erred in dismissing the insurer's Application for Further Assessment but the only consequential relief to be provided was the remitting of the Application for Further Assessment back to the Authority as the statutorily empowered decision maker.

Application to MAS

The claimant sustained injury in a motor vehicle accident on 21 December 2004.

On 22 November 2006 he sought an assessment of permanent impairment at MAS.

The medical reports accompanying the claimant's application divulged that the he had sustained a neck injury in 1994. He alleged that he had made a complete recovery.

The assessment was allocated to Assessor Margaret Gibson who issued an assessment certificate on 8 February 2008 certifying that the claimant's WPI exceeded the relevant 10% WPI threshold in relation to the cervical spine.

The claimant gave a history of pre-accident injury to the cervical spine, occurring 15 years prior to the subject assessment. The claimant had undergone cervical spine surgery and reported to Assessor Gibson as follows that:

"... by six months after the surgery he was totally asymptomatic and had returned to work and all normal activities."

In reaching the whole person impairment assessment, Assessor Gibson did not make any deductions for pre existing impairment, observing that:

"There was no evidence of there being any pre existing symptomatic impairment ... Mr Karanfilovski maintains his neck problem had been rendered asymptomatic by surgery and there is no medical documentation to contradict his assertion."

Insurer's Application for Review

The insurer lodged an Application for Review contending that the Assessor had erred in failing to conduct a thorough and proper investigation of the claimant's pre-accident medical history.

The MAS proper officer rejected the insurer's application for review. The reasons for the dismissal were not in evidence.

Insurer's First Application for Further Assessment

The Insurer lodged an Application for Further Assessment based on clinical notes from two GPs who treated the claimant for the cervical spine condition prior to the motor accident.

The Application was dismissed.

Insurer's Second Application for Further Assessment

The insurer sought a Further Medical Assessment in November 2008.

The application was accompanied by the material already placed before the MAA including additional reports, some of which pre dated the motor accident.

The reports indicated a pre-accident history of radiculopathy affecting the cervical spine up to and beyond the date of the subject motor accident.

The claimant's solicitors responded by asserting that the insurer's application contained nothing "new" and therefore did not satisfy the criteria for a Further Medical Assessment.

The Proper Officer issued a certificate on 14 January 2009 dismissing the insurer's application. She stated that her dismissal was based on the following reasons:

  • Even though Assessor Gibson had not made any deductions for pre existing impairment to the cervical spine, the insurer's assertion that the grounds to make such a deduction were obvious in the newly available pre-accident medical material, was not a convincing argument that an Assessor should now make the deduction.
  • The Application's supporting documents did not support exactly what deductions should be made and how the deduction would result in a material difference to the outcome.
  • Assessor Gibson was aware of the claimant's pre existing injuries and referred to it in the original assessment.


The Court ruled that the Proper Officer's dismissal constituted an error of law within s 69(3) of the Supreme Court Act, namely that the Proper Officer ignored relevant material or identified a wrong issue as per Craig v South Australia2, where the High Court held that an administrative tribunal (such as the MAA) committed an error of law where the tribunal identifies the wrong issue, asks itself a wrong question, ignores relevant material, or relies on irrelevant material or makes an erroneous finding.

The Court commented that a Proper Officer who dismisses an Application for Further Assessment after failing to acknowledge new relevant material of significant weight, erred by failing to consider relevant material. Specifically, the Court held:

"35 The discretion conferred on a Proper Officer by s 62 (18) is, in my opinion, limited by the terms of the section. In other words, the task of the Proper Officer considering an application by a party of the kind here under consideration is to determine whether there is relevant additional 'information and if so whether it is capable of having a material effect on the outcome of the previous assessment. In considering those matters, the Proper Officer is required to have regard to the MM Guidelines.

"36 In this case, in my view, the additional information was overwhelmingly one way. It was no answer to say, as the Proper Officer did, that Dr Gibson was aware of the previous injury. The material before Or Gibson, including the statement of Mr Karanfilovski, gave no hint of what the additional information contained as to the serious and continuing consequences of his previous injury. The decision not to refer the matter for a further medical assessment verged, in my opinion, on what Lord Greene in Wednesbury described as "unreasonable". However, it is unnecessary for me to make that finding. Suffice to say that, in my view, it was established that the Proper Officer ignored relevant material of significant weight which flawed the decision making process. Her decision, which became the decision of the Authority, should be quashed."

The Court was unable, by law, to order that MAS should accept the insurer's Application for Further Assessment, the only available relief to be had was to provide that the insurer could go through the same process of making an application, a residual right afforded to every applicant under the Motor Accidents Compensation Act.

Accordingly the orders made were that the proper officer's certificate should be quashed and that matter returned to the Authority so that the Further Medical Assessment might be dealt with according to law.


When assessing the qualities and arguments on which Applications for Further Assessments are based, a Proper Officer should have regard for the information before them and consider whether the information satisfies the criteria.

If the information is "new" and "relevant" it should be referred for Further Assessment.

In the present case, Patten AJ agreed that the Proper Officer had erred in rejecting the Application as her decision involved one of "unreasonableness" but was bound by law to remit the Application back to the Authority for a new decision to be made. The Court does not have the power to make the decision on behalf of the Authority where the challenge is one of an administrative law nature


1 Patten AJ

2 (1995) 184 CLR 163

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


From time to time Mondaq may send you emails promoting Mondaq services including new services. You may opt out of receiving such emails by clicking below.

*** If you do not wish to receive any future announcements of services offered by Mondaq you may opt out by clicking here .


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at and we will use commercially reasonable efforts to determine and correct the problem promptly.