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

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). Background

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...