54 The approach of Johnson J to s327 is a little different and is open to the interpretation, at least implicitly, that under s69 of the Supreme Court Act this Court can assess on a prima facie basis the correctness of the registrar's determination. Even on that approach which is more favourable to the plaintiff, the submission still fails."
28 However, in Merza v Registrar of the Workers Compensation Commission [2006] NSWSC 939 at [39], Hoeben J stated:
"I do not propose to, nor is it necessary, that I define what is "demonstrable error" for the purposes of s 327 of the Act in an exhaustive way. It is sufficient for the purposes of this matter that I conclude that "demonstrable error" is an error which is readily apparent from an examination of the medical assessment certificate and the document referring the matter to the AMS for assessment."
29 In Massie v Southern NSW Timber & Hardware Pty Limited [2006] NSWSC 1045, Sully J considered whether the Registrar's decision constituted a jurisdictional error. The facts here are similar to the facts outlined in Massie. In Massie, the Approved Medical Specialist failed to refer to a report. The Registrar found that the report was not provided to the Approved Medical Specialist. Furthermore, the Registrar stated that as the Approved Medical Specialist had not considered this report the assessment was made on the basis of either incorrect criteria or it contained a demonstrable error. Sully J found at [42] that the Registrar had confused notions of a demonstrable error in the Approved Medical Specialist's certificate with the demonstrable need for a s 329 reassessment to cure the administrative error that had caused the report not to be placed before the medical specialist.
30 In Massie, Sully J stated at [35] that:
"…absent clear statutory provision to the contrary, it ought not to be supposed that the intention of Parliament was to make simply and comprehensively unexaminable any particular exercise by a Registrar of the section 327(4) function. Any exercise of that function is more than some inconsequential procedural trifle. The Registrar's appraisal of the particular proposed appeal has serious practical consequences for both the intending appellant and the intended respondent. It is one thing to say that a particular exercise of that function should not be lightly overturned or aborted by this Court, a proposition which I consider to be plainly correct. It is, however, a very different proposition that such a particular exercise of a very important administrative function, however misconceived or mistaken it might be, is effectively beyond judicial review."
31 In Massie, Sully J came to the conclusion that the Registrar's decision was "inexact and unhelpful". In that case, it was unclear whether the doctor's report had been considered by the approved medical specialist, as no reference had been made to it. The Registrar took the view that the certificate was based on "incorrect criteria" and "demonstrable error" but Sully J disagreed. Sully J decided that, on the assumption that the medical report did not reach the Approved Medical Specialist in any form, there can be no indication of a demonstrable error in the certificate as it then stood. Sully J held that the matter should have been returned to an Approved Medical Specialist for re-assessment, to cure the administrative error of failing to place the report before the Specialist, rather than making a finding of demonstrable error.
32 Sully J then had to decide whether to exercise the court's discretion under s 69 of the Supreme Court Act to intervene and quash the Registrar's determination. His Honour decided that the discretion should not be exercised. While acknowledging that the purpose of prerogative relief is "to ensure compliance with the law and due procedure", Sully J decided that the plaintiff's failure to lodge a prompt application to quash the determination before proceeding to take a full participating role in the Appeal Panel should prevent the exercise of the court's discretion.
33 Bowport submitted that the case of Massie was wrongly decided for a number of reasons, and that there were no failings of the Registrar capable of establishing that the Medical Assessment Certificate contained a demonstrable error, as required by s 327(3)(d). Bowport submitted that Sully J's approach was incorrect in finding that no 'demonstrable error' had been made out as this would mean that a worker or employer denied the right to have the material upon which they wish to rely considered by the Approved Medical Specialist would be denied any recourse (other than by way of judicial review).
34 Bowport further submitted that in light of the nature of the Registrar's function (which is in the nature of gatekeeper) it is far more likely that the Registrar will fall into error going to the nature of the jurisdiction being exercised in refusing to allow an appeal to "proceed", rather than in a case where the Registrar allows the appeal process prescribed by the legislature to proceed to consideration by a Medical Appeal Panel constituted by persons qualified to deal with the issues raised.
35 It seems to me that this case before me is factually similar to Massie and for reasons of comity I should follow the decision of Sully J in Massie.
36 There is an error on the face of the record. The Delegate has misinterpreted the WorkCover Guides. While Sully J considered that there was a demonstrable need for a s 329 assessment to cure the administrative error because Massie did not lodge his application to this Court promptly and elected to fully participate in his appeal before the Appeal Panel, His Honour decided not grant prerogative relief. However, I would exercise the discretion differently and set aside the decision the Delegate. This is because at the time the Delegate made this decision (and likewise the Registrar's made the decision in Massie), the Registrar did not have the option to refer the matter back to the Approved Medical Specialist for reassessment to cure the administrative error that had caused the report of Dr Preston not to be placed before Dr Jones.