A Medical Review Panel's decision not to re-examine a claimant under the Motor Accidents Compensation Act 1999 (NSW) cannot be properly made on a false premise regarding the claimant's wishes; where the claimant's objection to proceeding 'on the papers' is not communicated to the Panel, the resulting assessment is vitiated both as a constructive failure to exercise the statutory function and as a denial of procedural fairness. Ex parte Lam does not require a claimant to demonstrate what steps would have been taken if procedural fairness had been observed where the procedure itself failed to afford a fair opportunity to be heard; rather, relief is justified unless the respondent can show the failure did not deprive the claimant of the possibility of a successful outcome.
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