Coventry v Insurance Australia Ltd T/as NRMA Insurance [2019] NSWSC 1096

30. Authority binding on me establishes that a decision of a proper officer under the Act may be amenable to orders in the nature of the prerogative writs under s 69 Supreme Court Act, at least for jurisdictional error: Rodger v De Gelder (2011) 80 NSWLR 594; QBE Insurance (Australia) Limited v Miller [2013] NSWCA 442; (2013) 67 MVR 322; Henderson v QBE Insurance (Australia) Limited [2013] NSWCA 480; 66 MVR 69; De Gelder v Rodger [2014] NSWSC 872. These cases refer to the implied power of the proper officer to refer an application to resolve a medical dispute for a further assessment under s 62 of the Act. As Basten JA made clear in QBE v Miller at [35], in that context, the proper officer’s power depends “on the satisfaction of the proper officer as to the requirements set out in [s 62(1A)]”. Accordingly, it is not permissible for the Court to seek to decide as matter of objective fact whether the statutory conditions about which the proper officer must be satisfied were established by the evidence led in court. A fortiori, the Court’s power must be similarly limited when reviewing a decision under s 63(3) which in express terms turns upon the satisfaction of the proper officer “that there is reasonable cause to suspect that the medical assessment was incorrect in the material respect”.

31. The legal standard to be applied by the court in these situations was expressed by Basten JA in QBE and Miller at [36] – [37] in the following terms:

Once it is accepted that the characterisation of the information is a matter to be considered in the first instance by the proper officer and not one to be determined by this court afresh on a judicial review application, the review proceedings are limited to determining whether the proper officer's opinion has been properly formed according to law: Buck v Bavone [1976] HCA 24; 135 CLR 110 at 118-119 (Gibbs J); D'Amore at [220]. 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 R 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.Such standards set the jurisdictional parameters of the power conferred on the officer. (Emphasis added.)