Jubb v Insurance Australia Ltd [2016] NSWCA 153
31. As Meagher JA observed in Henderson v QBE Insurance (Australia) Ltd [2013] NSWCA 480; 66 MVR 69 (Henderson v QBE Insurance) at [81], cl 14.7 states a different requirement from s 62(1A). The formation of the opinion or state of satisfaction which s 62(1A) requires is that the deterioration or additional information “be capable of having a material effect on the outcome of the previous assessment”. Clause 14.7 proposes a different and more stringent standard, namely, that it “would have a material effect on the outcome of the application”. That difference is not material in this case because the proper officer correctly identified the pre-condition to be as formulated in s 62(1A). The statutory provision must, of course, prevail: Henderson v QBE Insurance at [25] (Beazley P, Tobias AJA agreeing).
32. A number of aspects of s 62 should be noted. Each was common ground, except for the fourth matter below. First, it has been accepted that s 62 impliedly confers power on the proper officer to refer the matter to a medical assessor on a ground identified in s 62(1)(a), if the conditions set out in subs (1A) are satisfied: Rodger v De Gelder at [70] (Beazley JA, McColl and Macfarlan JJA agreeing); QBE Insurance (Australia) Ltd v Miller [2013] NSWCA 442; 67 MVR 322 (QBE Insurance v Miller) at [4] (Basten JA, Ward JA and Young AJA agreeing); Henderson v QBE Insurance at [78] (Meagher JA, Tobias AJA agreeing).
33. Secondly, in exercising the power of referral under s 62(1)(a) the proper officer performs the role of a gatekeeper. The capacity of the “deterioration of the injury” or “additional information” to affect a further medical assessment is a matter for the subjective satisfaction of the proper officer, not the determination of the court: Rodger v De Gelder at [113] (Macfarlan JA, McColl JA agreeing); QBE Insurance v Miller at [31] (Basten JA, Ward JA and Young AJA agreeing); Henderson v QBE Insurance at [49]-[51] (Beazley P, Meagher JA and Tobias AJA agreeing).
34. Thirdly, the formation of the opinion or state of satisfaction required of the proper officer under s 62(1A) is subject to judicial review. The relevant question is whether the proper officer’s opinion has been formed according to law: Buck v Bavone [1976] HCA 24; 135 CLR 110 at 118-119; D’Amore v Independent Commission Against Corruption [2013] NSWCA 187; 303 ALR 242 at [220]. In QBE Insurance v Miller at [36], Basten JA explained the standard of review as follows:
The critical question is thus "whether the determination was irrational, illogical and not based on findings or inferences of fact supported by logical grounds": Minister for Immigration and Multicultural and Indigenous Affairs v SGLB [2004] HCA 32; 78 ALJR 992 at [38] (Gummow and Hayne JJ). Further, as explained by Latham CJ in The Queen v Connell; Ex parte Hetton Bellbird Collieries Ltd [1944] HCA 42; 69 CLR 407 at 432:
"If the opinion which was in fact formed was reached by taking into account irrelevant considerations or by otherwise misconstruing the terms of the relevant legislation, then it must be held that the opinion required has not been formed. In that event the basis for the exercise of power is absent, just as if it were shown that the opinion was arbitrary, capricious, irrational, or not bona fide.
35. In the present case, the appellant sought review on the basis that the proper officer misconstrued the terms of the MAC Act.
36. Fourthly, and contrary to the insurer’s submissions, the power of referral is subject to a residual discretion (“may”) given in s 62(1) of the MAC Act, whether or not to refer a matter for a further assessment. That the power of referral may be exercised or not, at discretion, is not contradicted by any contrary intention appearing in the MAC Act: Interpretation Act 1987 (NSW), ss 5 and 9; Ward v Williams (1955) 92 CLR 496 at 505-506; Samad v District Court of New South Wales [2002] HCA 24; 209 CLR 140 at [33]-[34]. Nevertheless, the discretion is not entirely unconstrained. The power conferred on the proper officer must be exercised in accordance with the subject matter, scope and purpose of the statute: Peko-Wallsend, 40. Further and again, contrary to the insurer’s submissions, the existence of that discretion has been recognised in the authorities on s 62: see, for example, Mullin v CIC Allianz Australia Ltd [2015] NSWSC 831; 71 MVR 322 (Mullin) at [35] (Beech-Jones J).