Australia: Procedural fairness a relevant consideration for a claims assessor when making a determination to refer a matter back to MAS.

Chami v Motor Accidents Authority of New South Wales [2009] NSWSC 1358
Last Updated: 16 December 2009
Article by Jennifer Casperson

Supreme Court of New South Wales1

In Brief

  • The Supreme Court held that the claims assessor fell into jurisdictional error by not considering the issue of procedural fairness when exercising his discretion to refuse to send the matter back to MAS for further assessment pursuant to s 62(1)(b) of the Motor Accidents Compensation Act 1999 (Act).
  • The Supreme Court upheld the previous decision of Jovica Trazivuk v Motor Accidents Authority of New South Wales and Ors2, where it was held that a claims assessor correctly identified procedural fairness as one of the grounds which should be considered when referring a matter back for further assessment.
  • The Supreme Court confirmed that s 61(4) of the Act confers an express power on the court to "reject" a certificate, a power which is distinct to the unfettered discretion of a claims assessor or a court to refer a matter back to MAS pursuant to s 62(1)(b).


The plaintiff sought a review of the assessment of Assessor Marsh. One of the grounds in support of the review was an allegation of procedural unfairness in a manner in which the assessment was carried out. On 28 May 2008, the Acting Proper Officer rejected the plaintiff's review application and suggested that the appropriate forum for determination given the allegation of procedural unfairness was the court in accordance with s61(4) of the Act. Section 61(4) of the Act states the following:

In any court proceedings, the court may (despite anything to the contrary in this section) reject the certificate as to all or any of the matters certified in it, on the grounds of denial of procedural fairness to a party to the proceedings in connection with the issue of the certificate, but only if the court is satisfied that admission of the certificate as to the matter or matters concerned would cause substantial injustice to that party.

Therefore, s 61(4) of the Act enables a court in court proceedings, to set aside a certificate, in circumstances only where there has been a denial of procedural fairness and that the admission of that certificate would cause substantial injustice.

On 4 July 2007, the plaintiff made an application to the claims assessor seeking a referral for a further medical assessment pursuant to s 62(1)(b). In support of the application, the plaintiff again alleged the ground of procedural fairness.

On 4 August 2008 the claims assessor refused the application to refer the matter back to MAS, indicating that he was of the view that s 61(4) of the Act did not prevent the plaintiff from making an application to the court even if the matter was presently subject to a CARS application. In other words, the claims assessor believed that the appropriate forum for the claimant to make such an application was the Supreme Court. Furthermore, the claims assessor stated that on that basis, he was not prepared to refer the matter back to MAS pursuant to s 62 of the Act.

The plaintiff sought judicial review of the decision of the claims assessor in the Supreme Court, and argued that a jurisdictional error occurred when the claims assessor failed to exercise his discretion to refer the medical dispute back to MAS pursuant to ss 60 and 62 of the Act.

Supreme Court decision

Her Honour upheld the plaintiff's application for judicial review.

Her Honour concluded that upon a proper construction of the claims assessor's reasons, the claims assessor did not say that he would not refer the matter back to MAS pursuant to s 62, rather the claims assessor determined that the appropriate forum for resolving the procedural fairness issue was the Supreme Court.

Her Honour did not agree with the claims assessor's approach and it was her view that an assessor making a determination under s 62(1)(b) can take into account whether or not procedural fairness had been afforded during the medical assessment.

Her Honour upheld the recent decision in Trazivuk. In Trazivuk's case, Associate Justice Patton held that s 61(4) of the Act gives express power to a court to "reject" a certificate, however the operation of s 62(1)(b) gives a claims assessor or a court an unfettered power to refer a matter back to MAS for further assessment and a relevant consideration to be taken into account by the claims assessor or court is procedural fairness.

The plaintiff also challenged the claims assessor's decision on the basis that he failed to consider the plaintiff's claims to the extent that they were relevant for the purposes of the referral. Her Honour criticised the claim assessor's brief reasons for his decision as he did not appear to consider the other grounds raised by the plaintiff in determining the application.

In saying that, her Honour noted that when weighing up the considerations made by the claims assessor in his reasons, it should be borne in mind that a court is not permitted to trawl through the statement of reasons looking for errors or to an apply an "overtly strict or over zealous use of the language", as held in the decision of Minister for Immigration and Ethnic Affairs v Wu Shan Liang at 4913.

Her Honour quashed the decision of the claims assessor and referred the matter back to the MAA for further determination.


The case of Chami is important in confirming that a claims assessor may take into account procedural fairness when determining whether or not to refer a matter back pursuant to s 62(1)(b).

It also highlights the importance for claims assessors to provide detailed reasons in reaching their conclusions. These principles have been confirmed in the recent cases of Trazivuk and Devic v Motor Accidents Authority of New South Wales4.

1 Associate Justice Harrison, 8 December 2009

2 [2009] NSWSC 1074

3 [1996] HCA 6

4 [2009] NSWSC 1289

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.

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