Bhusal v Catholic Health Care Ltd

Court of Appeal (NSW)|2018-03-07|Before: Meagher JA, Simpson JA, Button J

Solicitors: Beilby Poulden Costello (Appellant) Astridge & Murray (First Respondent) Crown Solicitor's Office (Second and Third Respondents) File Number(s): 2017/193405 Decision under appeal Court or tribunal: Supreme Court Jurisdiction: Common Law Citation: Bhusal v Catholic Health Care [2017] NSWSC 838 Date of Decision: 23 June 2017 Before: Button J File Number(s): 2016/330368

Judgment

THE COURT: By Amended Summons filed on 6 April 2017 in the Supreme Court the applicant sought, under s 69 of the Supreme Court Act 1970 (NSW), judicial review of two decisions made under the Workers Compensation Act 1987 (NSW) (the Act). On 23 June 2017 Button J (the primary Judge) dismissed the Amended Summons. [1] The applicant now seeks leave to appeal and, if leave is granted, appeals against that decision. Although a grant of leave was initially opposed on behalf of the first (and the only active) respondent (Catholic Health Care Ltd, to which we will refer as CHC), ultimately that opposition was withdrawn. This is an appropriate case for leave to be granted. The second respondent (identified as State Insurance Regulatory Authority Workers Compensation Merit Review Services) and the third respondent (identified as Workers Compensation Independent Review Officer) have entered submitting appearances.

Relevant legislation

The relevant legislation is the Act. The long title of the Act is: "An Act to provide for the compensation and rehabilitation of workers in respect of work related injuries; to repeal the Workers' Compensation Act 1926 and certain other Acts; and for other purposes." By s 9(1): "A worker who has received an injury (and, in the case of the death of the worker, his or her dependants) shall receive compensation from the worker's employer in accordance with this Act."
The Act is administered by the State Insurance Regulatory Authority (SIRA) constituted under the State Insurance and Care Governance Act 2015 (NSW). By s 2A the Act is to be construed with and as if it formed part of the Workplace Injury Management and Workers Compensation Act 1998 (NSW) (the WIM Act).
Section 43 of the Act identifies decisions that are "work capacity decisions", one of which is a decision about a worker's "current work capacity". Such decisions are ordinarily made in the first instance by the employer's licensed insurer, and are subject to review as provided by the Act. Work capacity decisions of an insurer are, by s 43(1), subject to review under s 44BB, and to judicial review by the Supreme Court under s 69 of the Supreme Court Act, but not otherwise.
The material provision of the Act for present purposes is s 44BB which is in the following terms: "44BB Review of work capacity decisions (1) An injured worker may refer a work capacity decision of an insurer for review: (a) by the insurer in accordance with the Workers Compensation Guidelines within 30 days after an application for internal review is made by the worker, or (b) by the Authority (as a merit review of the decision), but not until the dispute has been the subject of internal review by the insurer, or (c) to the Independent Review Officer (as a review only of the insurer's procedures in making the work capacity decision and not of any judgment or discretion exercised by the insurer in making the decision), but not until the dispute has been the subject of internal review by the insurer and merit review by the Authority. (2) An application for review of a work capacity decision must be made in the form approved by the Authority and specify the grounds on which the review is sought. The worker must notify the insurer in a form approved by the Authority of an application made by the worker for review by the Authority or the Independent Review Officer. (2A) The insurer is to notify the worker of the decision on an internal review as soon as practicable after the review is conducted. (3) The following provisions apply to the review of a work capacity decision when the reviewer is the Authority or the Independent Review Officer: (a) an application for review must be made within 30 days after the worker receives notice in the form approved by the Authority of the insurer's decision on internal review of the decision (when the application is for review by the Authority) or the Authority's decision on a review (when the application is for review by the Independent Review Officer), (b) an application for review by the Authority may be made without an internal review by the insurer if the insurer has failed to conduct an internal review and notify the worker of the decision on the internal review within 30 days after the application for internal review is made, (c) the reviewer may decline to review a decision because the application for review is frivolous or vexatious or because the worker has failed to provide information requested by the reviewer, (d) the worker and the insurer must provide such information as the reviewer may reasonably require and request for the purposes of the review, (e) the reviewer is to notify the insurer and the worker of the findings of the review and may make recommendations to the insurer based on those findings (giving reasons for any such recommendation), (f) the Independent Review Officer must also notify the Authority of the findings of a review and the Authority may make recommendations (giving reasons for any such recommendations) to the insurer based on those findings, (g) recommendations made by the Authority are binding on the insurer and must be given effect to by the insurer, (h) recommendations made by the Independent Review Officer are binding on the insurer and the Authority. (4) (Repealed) (5) The Commission is not to make a decision in proceedings concerning a dispute about weekly payments of compensation payable to a worker while a work capacity decision by an insurer about those weekly payments is stayed. (6) (Repealed)." Also relevant is s 44BC, which provides: "44BC Stay of work capacity decisions (1) A review of a work capacity decision in respect of a worker operates to stay the decision that is the subject of the review and prevents the taking of action by an insurer based on the decision while the decision is stayed. (2) However, a review operates to stay the decision that is the subject of the review only if the application for review is made by the worker within 30 days after the day on which the worker is notified (or required under section 44BB to be notified) of: (a) the work capacity decision to be reviewed (in the case of an application for internal review), or (b) the decision on the internal review (in the case of an application for review by the Authority), or (c) the findings of the merit review (in the case of an application for review by the Independent Review Officer). (3) A stay operates from the time the application for review is made until the worker is notified of the findings of the review (or the application for review is withdrawn). Note. After a stay is lifted, weekly payments of compensation must not be discontinued or reduced in accordance with the original decision (or any decision resulting from the review of that decision) until the required period of notice under section 54 has expired. See sections 44BD and 44BE for the effect of a review on that notice period. (4) A stay of an original decision to discontinue, or reduce an amount of, compensation does not operate to extend the required period of notice with respect to the discontinuation or reduction."
Relevantly, what s 44BB(1) does is to provide for three progressive layers of review of a work capacity decision, the second being dependent on the first having taken place, and the third dependent on the first and second having taken place.
The first layer is "internal review" by the insurer (s 44BB(1)(a)). A work capacity decision made by an insurer may be referred for internal review, in accordance with Workers Compensation Guidelines issued under s 376 of the WIM Act. Review is to be made within 30 days after application is made by the worker. The second layer of review, which cannot take place until the work capacity decision has been the subject of internal review by the insurer (unless the insurer has failed to conduct an internal review and notify the worker of the decision within 30 days of application (sub-s (3)(b)) is "merit review" by SIRA of the decision by the insurer following internal review. The third layer of review, which cannot take place unless the work capacity decision has been the subject of both internal review by the insurer and merit review by SIRA, is limited to review of the insurer's procedures, from which any "judgment or discretion exercised by the insurer in making the decision" is specifically excluded. That review is conducted by "the Independent Review Officer" appointed under s 26 of the WIM Act.
Additional provisions relating to review of work capacity decisions, whether by SIRA or by the Independent Review Officer, are made in sub-s (3) of s 44BB. Relevantly for present purposes, by par (a), an application for review "must be made within 30 days after the worker receives notice" of the decision sought to be reviewed in the approved form.

Factual background

Between 2009 and 2014 the applicant was employed as an assistant nurse by CHC. On 2 February 2014 she suffered injury to her back in the course of that employment. She made a claim under the Act. Initially CHC, through its licensed insurer, Catholic Church Insurance Ltd (CCI) accepted liability to make weekly and other payments under the Act. However, on 25 February 2016, CCI advised the applicant that, following review of her claim, it had been decided that she had a current capacity to work that disentitled her to further weekly payments. This was a "work capacity decision" within s 43 of the Act.
By letter dated 24 March 2016, through solicitors assisting the applicant, the applicant sought internal review of that decision. By reason of limitations placed by the legislation on the entitlement of legal practitioners to be paid or to recover costs in connection with such reviews, it is not clear whether the solicitors who assisted the applicant had a retainer to act on her behalf. [2]
On 29 April 2016 CCI completed its internal review and decided that the original decision "remains in place". CCI notified the applicant by a letter, addressed to her, "c/-" the firm of solicitors who had assisted her. On 3 May the solicitors wrote to the applicant, enclosing the notification. They enclosed an application for merit review by SIRA under s 44BB(1)(b), which they invited the applicant to review and sign and return before 1 June 2016. (It may be inferred that the form of application had been completed by the solicitors.)
On 9 June 2016 the solicitors filed the application for merit review by SIRA. In answer to a question "When did you receive the insurer's Internal Review Decision?" the date "02.05.2016" was inserted. On the same day, by email, SIRA notified CCI of the application and requested: "… lodgement of a reply to the application in the approved form as quickly as possible and preferably within 7 days of receiving this application for review."
The email continued: "Please note that this letter of acknowledgement is not a letter confirming that [SIRA] has jurisdiction to review the work capacity decision/s of the Insurer. This is a decision that will be made prior to the review being undertaken, and, in the event that the application is not accepted, both parties will be advised in writing in due course."
There appears to be no evidence that a similar reservation about jurisdiction was communicated to the applicant.
On 14 June 2016 CCI provided its response to the application, on the prescribed form. Its response was: "The worker's application for Merit review did not include any new information from the information supplied at the internal review. The worker has been assessed by CCI has [sic] having a work capacity enabling her to work full time in a sedentary role. Based on the work capacity assessment CCI has received for the injured worker, suitable employment has been identified (Welfare worker - case worker) which would yield a weekly wage of $1193.96. Based on this, the injured worker does not have an ongoing entitlement to weekly compensation as her PIAWE [which may be taken to mean "pre-injury average weekly earnings] has been determined to be $782.14 (after 52 weeks)." Notably, no mention of any jurisdictional issue was made in CCI's response.
The application was referred to Ms Stephanie Wigan, a Delegate of SIRA in the Merit Review Service.
On 30 June 2016 SIRA advised the applicant (by letter addressed directly to her) that it had determined that it did not have jurisdiction to proceed with the review as requested. It gave reasons for its decision. The reasons included the following: "14 No submissions regarding [SIRA's] jurisdiction to review this matter were provided by [the applicant] or [CCI]. … 16 [The applicant] has specified in the application for merit review that she received the Insurer's internal review decision on 2 May 2016, being two working days after the date that the Insurer sent notice of the internal review decision. 17 In this matter, I accept [the applicant's] submission that she received the internal review decision on 2 May 2016. 18 However [the applicant's] application for merit review was made on 9 June 2016, being the date on which [SIRA] received the application. 19 Thus the application for merit review was not made within 30 days after [the applicant] received notice of the Insurer's internal review decision in the form approved by [SIRA]. 20 As outlined above, [SIRA] is subject to strict legislative requirements with respect to its jurisdiction in order to accept an application for merit review, particularly in matters relating to time limits. 21 Accordingly, as the application for merit review was not made in accordance with section 44BB(3)(a) of the 1987 Act, [SIRA] does not have jurisdiction to undertake a merit review of the work capacity decision dated 25 February 2016." (bold in original) Earlier in the reasons the relevant legislative provisions had been identified.
On 29 July 2016 the applicant lodged an application for "procedural review" with the Independent Review Officer. The applicant's submissions to the Independent Review Officer contended that s 44BB(3)(a) of the Act is satisfied if an applicant lodges a Merit Review Application within 30 days of receiving actual notice of the insurer's internal review decision. The applicant stated that she had not been given the opportunity to place before SIRA any submissions on the question of jurisdiction and that had she had that opportunity she would have argued that her application was in fact lodged within the 30 day statutory time limit. The application to the Independent Review Officer was accompanied by a statement from the applicant explaining that she had not received actual notice of the insurer's review decision until after she returned to Australia on 2 June 2016 from a visit to Nepal.
On 5 August 2016 the Independent Review Officer dismissed the application. The essential reason was given in one paragraph: "However, in the present case I accept that the applicant has not complied with Section 44BB(3)(a) of the 1987 Act and she is in breach of the review process. Therefore a procedural review cannot be performed."
The "breach of the review process" may be taken to be a reference to the requirement in s 44BB(1)(c) that, before procedural review may be undertaken, the first and second layers of the review process must be completed. Since SIRA had declined jurisdiction, no merit review had taken place. The Independent Review Officer did not address the applicant's contention that the procedure adopted by SIRA denied her the opportunity to put a case on the question of jurisdiction.
On 4 November 2016, pursuant to s 69 of the Supreme Court Act, the applicant sought judicial review of the decisions made by SIRA on 30 June 2016 and the Independent Review Officer on 5 August 2016. During the course of the hearing that followed she abandoned the application for judicial review of the Independent Review Officer's decision, and proceeded only in respect of the SIRA decision.

The proceedings in the Supreme Court

Although eight grounds were advanced in relation to the 30 June 2016 decision by SIRA, they may be encapsulated as follows:

that SIRA mistakenly believed that the requirement in s 44BB(3)(a) that an application for review be made within 30 days after receipt by the applicant of the decision was mandatory, and accordingly failed to exercise the jurisdiction conferred on it (Grounds (a)-(e));
that (notwithstanding the statement in the application form that the date on which she received the Internal Review Decision was 2 May 2016) she in fact received the decision on 3 June 2016. SIRA had proceeded on the erroneous basis that she had received the decision on 2 May 2016 and therefore her application failed to comply with the time limit imposed by sub-s (3)(a). The date of receipt was a jurisdictional fact. SIRA having proceeded on the false basis that the date of receipt was 2 May 2016, it had mistaken its jurisdiction (Grounds (f)-(h)).

As indicated above, the claim in relation to the Independent Review Officer's decision was abandoned.
Over objection, the primary judge received affidavit evidence from the applicant, to the following effect. On 23 April 2016 she left Australia for overseas. Prior to leaving the country, she advised the solicitors who had assisted her of her intention to do so. She also advised Ms Lauren Skillicorn (a Workers Compensation Case Manager employed by CCI) of her intention to leave the country, and to return on 3 June 2016. She in fact remained out of Australia until that date. On her return she received the letter from the solicitors enclosing the application for external review and advising that any submissions were required to be returned to his office by 1 June 2016.
The applicant was cross-examined in the proceedings before the primary judge. It was not suggested to her that she was not out of the country between the dates she asserted, nor that she had received notice of the decision while she was out of the country; although there was some tentative exploration of her assertion that she had advised Ms Skillicorn of her proposed absence, that evidence was not really challenged.

The primary judge's reasons for dismissing the application

The primary judge accepted that "receipt" as envisaged by s 44BB(3)(a) is personal receipt by the worker. No challenge was made on behalf of the respondents to that conclusion.
The primary judge did not expressly make a finding of fact about when the applicant received the notification of the Internal Review Decision. However, it is not in dispute that she was out of the country at the time the notification was sent, first to the solicitors, and then to her, and that she did not receive it until her return on 3 June 2016. The primary judge proceeded on that basis.
The primary judge rejected an argument that for SIRA to extinguish the right of review without having heard from the parties or checked that the disentitling statement as to notice was factually correct constituted a denial of procedural fairness.
The primary judge accepted, further, that the word "must" as it appears in s 44BB(3)(a) is "mandatory in the true sense". He therefore rejected a submission made on behalf of the applicant that SIRA ought to have given her an opportunity of explaining why she did not lodge her application within 30 days from 2 May 2016. The construction of the time requirement remains in issue in this application.
The primary judge rejected the proposition that the date on which the applicant received notice of the Internal Review Decision is a jurisdictional fact.

The appeal

In the Draft Notice of Appeal, the applicant identified grounds that asserted error on the part of the primary judge in the construction of s 44BB of the Act. Specifically, it was asserted that the 30 day period specified in sub-s (3) as the period in which an application for merit review "must be made" did not exclude the jurisdiction of SIRA to proceed to merit review even where an application was made outside that time. It asserted error in the failure of the primary judge to find, on the facts, that the application was made within that time, and it asserted error: "… in failing to find that the question of the fact of notification of the Insurer's internal decision and the making of an application for an independent merits review were jurisdictional facts" and consequent error in failing to make findings as to the jurisdictional facts.
At the conclusion of the hearing, the applicant was given leave to file an Amended Notice of Appeal. That amended notice recast the applicant's case to reflect the way it was put in oral argument in this Court. She now pleads that the primary judge erred: "1 … (a) … as to the construction and operation of s 44BB(3)(a) of [the Act] by failing to construe that provision as being procedural, permitting an application to be filed after 30 days; (b) … in failing to find that there had been a denial of procedural fairness by the decision maker not calling for submissions on the matter of non-compliance of the 30-day period as being decisive of jurisdiction; (c) … in failing to find that the factual matter of compliance with the 30-day period in s 44BB(3)(a) was a jurisdictional fact, and erred in failing to make factual findings as to compliance; … (e) … in failing to grant relief in the nature of judicial review."
The applicant identified the orders sought as: "2. … (b) If the Appellant success on Grounds (1)(a) and/or (1)(b): (i) a declaration that pursuant to Section 69 of the Supreme Court Act 1970 (NSW) the decision of the Second Respondent dated 30 June 2016 is void and of no effect; and (ii) the matter is remitted to the Second Respondent to be dealt with according to law, (c) If the Appellant succeeds on Ground (1)(c), the Court make affirmative findings as to the jurisdictional fact of compliance with the 30-day period in s 44BB(3)(a); … (e) The First Respondent pay the Plaintiff's costs of the proceedings. 3. The Respondents pay the Appellant's costs of the appeal."

Procedural fairness

It is convenient to consider first Ground 1(b) of the Amended Notice of Appeal. In substance, the applicant contended that the primary Judge erred in failing to conclude that SIRA denied procedural fairness by not calling for submissions on the significance of the applicant's apparent non-compliance with the 30 day time limit for the lodging of her application for review of the insurer's work capacity decision (Merit Review Application).

Preliminary matters

In considering whether the primary Judge should have upheld the applicant's procedural fairness argument, four matters must be borne in mind. The first is the answer the applicant gave to the critical question on the Merit Review Application form: "When did you receive the insurer's Internal Review Decision?" The applicant's answer was 2 May 2016, 38 days before she lodged the Merit Review Application with SIRA.
Secondly, as has been noted, it was common ground in this Court that the expression "receives notice … of the insurer's [internal review] decision" in s 44BB(3)(a) of the Act means personal receipt of the notice by the worker, not receipt by a lawyer or other person assisting the worker. Since the applicant did not personally receive the notice informing her of the insurer's internal review decision earlier than 2 June 2016, the date she returned to Australia from Nepal, she in fact lodged the Merit Review Application within the 30 day period prescribed by s 44BB(3)(a) of the Act.
Thirdly, as has been pointed out, the applicant was assisted by solicitors in preparing her Merit Review Application, although it is not clear whether the solicitors had a retainer to act on her behalf. This perhaps unusual situation is explained by the terms of the Act and Work Capacity Guidelines issued pursuant to s 376(1) of the WIM Act.
Prior to amending legislation, s 44(6) of the Act provided that a legal practitioner acting for a worker was not entitled to be paid or recover any amount for costs incurred in connection with a review of a work capacity decision of an insurer. While the Workers Compensation Amendment Act 2015 (NSW) repealed s 44(6) with effect from 4 December 2015, it also inserted Item 8 of Part 19I of Schedule 6 into the Act with effect from 21 August 2015. This item retained the position under s 44(6) by providing that a legal practitioner was not entitled to be paid or recover any amount for costs in connection with a review of a work capacity decision until the commencement of s 44BF of the Act. Section 44BF did not enter into force until 16 December 2016. Item 8 of Part 19I of Schedule 6 of the Act was therefore in force at the relevant point in time. [3]
Despite the prohibition on payment or recovery of costs in connection with a review of a work capacity decision, cl 7.2.1 of the Work Capacity Guidelines provided that a worker could be assisted in completing the application by another person such as the insurer, a support person, a union representative or a legal representative.
Fourthly, CHC accepted that SIRA, when reviewing the insurer's work capacity decision pursuant to s 44BB(1)(b) of the Act, [4] was bound to afford procedural fairness to the applicant. CHC further accepted that this obligation extended to the process leading to SIRA's decision that it lacked jurisdiction to entertain the Merit Review Application lodged by the applicant. The dispute in this Court was essentially as to whether the procedure adopted by the Delegate caused the applicant to suffer practical injustice, having regard to the information she provided in her Merit Review Application.

Applicant's submissions

This Court was not taken to the precise terms of the applicant's submissions to the primary Judge on procedural fairness. It is clear, however, that the primary Judge understood the applicant to contend that procedural fairness required, as a general rule, that SIRA check the accuracy of information provided by an applicant seeking review of an insurer's decision, at least where the information was adverse to the applicant's interests.
This understanding of the applicant's submissions appears from the primary Judge's reasons for rejecting the applicant's argument, as follows: [5] "[40] First, I cannot accept that it was incumbent upon SIRA to contact the [applicant] in order to check that the document that she had signed and that, on its face, disentitled her to review, was indeed correct. One can accept that SIRA was generally obliged to provide the [applicant] with procedural fairness; the question is one of statutory construction as to the particular ways in which that obligation was to be fulfilled. [41] I do not accept that the regime set up by the Act should be construed as placing such a responsibility on SIRA. It would be remarkable if a statute setting up such an authority were to impose upon that authority such a duty, to be fulfilled every time an applicant provided the authority with information that was adverse to that applicant. [42] And speaking in practicalities, I consider that I am entitled to infer from the documentary evidence placed before me (not least the appearance of the document containing the application for review itself) that SIRA receives a very large volume of such applications. An asserted obligation to provide procedural fairness needs to be seen in the context of the real world and based on the circumstances of the case, not on some theoretical plane: see Kioa v West (1985) 159 CLR 550; [1985] HCA 81. I consider that it would be thoroughly unworkable to expect SIRA to check the correctness of every document that it receives that is adverse to the person submitting the document." (Emphasis added.)
The applicant's submissions in this Court on procedural fairness did not emerge until oral argument. As has been noted, the notice of appeal filed in this Court did not include a ground challenging the primary Judge's rejection of the applicant's case founded on a denial of procedural fairness. Nor did the applicant's written submissions identify procedural fairness as an issue on the appeal. Nonetheless, Mr Romaniuk SC, who appeared with Ms Grotte for the applicant, contended in his oral submissions that the primary Judge erred in concluding that SIRA had not denied the applicant procedural fairness. Mr Romaniuk submitted that SIRA's failure to accord the applicant procedural fairness constituted a jurisdictional error and that the primary Judge erred in law in rejecting the applicant's argument to this effect.
It was after the Court pointed out that the notice of appeal made no reference to a want of procedural fairness that Mr Romaniuk sought leave to amend the notice of appeal by adding Ground 1(b). [6] Mr Robinson SC, who appeared with Mr Jackson for the first respondent, did not object to the amendment and, accordingly, the Court granted leave to file the amended notice of appeal.
It is not entirely clear whether the argument on procedural fairness put to the primary Judge was as sweeping as his Honour seemed to think. In any event, the applicant's argument in this Court in support of the ground in the amended notice of appeal was framed more circumspectly. Mr Romaniuk submitted that the Delegate, who was exercising the powers of SIRA, should have alerted the applicant that the information included in the Merit Review Application suggested that her application had been lodged outside the 30 day time limit specified by s 44BB(3)(a) of the Act. The Delegate should then have informed the applicant that her apparent non-compliance with s 44BB(3)(a) of the Act would result in dismissal of the Merit Review Application on jurisdictional grounds unless she could persuade the Delegate otherwise.
Mr Romaniuk submitted that the finding that the applicant lodged the Merit Review Application outside the time limit specified by s 44BB(3)(a) of the Act was the critical factor in the Delegate's decision that SIRA lacked jurisdiction to entertain the Merit Review Application. The Delegate's finding was based exclusively on the applicant's statement in the Merit Review Application that she received notice of the insurer's Internal Review Decision on 2 May 2016. Yet neither the Delegate nor CCI in its written submissions to SIRA warned the applicant that a finding would be made that she had not complied with s 44BB(3)(a) of the Act and that the Delegate would reject her Merit Revue Application on the ground of want of jurisdiction. Accordingly, so Mr Romaniuk submitted, the applicant had been deprived of the opportunity to make submissions on the critical questions, namely whether the Merit Review Application had in fact been lodged within the 30 day period imposed by statute and, if not, whether non-compliance deprived SIRA of jurisdiction to entertain the Merit Review Application.
Mr Romaniuk said that had the applicant been afforded the opportunity to make submissions, she would have been able to demonstrate (as she attempted in her submission to the Independent Review Officer) that she did not personally receive notice of the insurer's internal review decision before 2 June 2016. This would have established that, having regard to the proper construction of s 44BB(3)(a) of the Act, she had lodged the Merit Review Application within time and that the Delegate was bound to undertake merit review of the insurer's work capacity decision. The applicant also would have been afforded the opportunity to challenge the Delegate's assumption that non-compliance with s 44BB(3)(a) of the Act deprived SIRA of jurisdiction to act on the Merit Review Application.

CHC's submissions

Mr Robinson supported the reasoning of the primary Judge insofar as his Honour considered that it would be unworkable for a high volume decision-maker like SIRA to be required to check on whether each applicant had correctly completed the relevant form and understood the significance of the information provided on the form. Mr Robinson submitted that the Delegate had made a finding of fact on the material before her, namely that the Merit Review Application had been lodged outside the 30 day period stipulated by s 44BB(3)(a) of the Act. The finding of fact was not amenable to judicial review and, in any event, was entirely justified by the applicant's own statement in the Merit Review Application.
Mr Robinson further submitted that procedural fairness did not require the Delegate to go behind the material submitted by the applicant. While SIRA had a statutory power to require the parties to provide further information, the Delegate was under no obligation to undertake independent inquiries into matters that had been specifically addressed by the applicant herself. Mr Robinson pointed out that the applicant apparently had assistance (albeit unpaid) from a solicitor at the time she lodged the Merit Review Application. She was therefore not in the position of an unrepresented person who might lack the capacity to understand the significance of particular information provided to SIRA or to appreciate the statutory framework for the decision-making process. The Delegate had no reason to suspect that the applicant's answer to the question about the date she received notice of CIC's internal review decision was based on a misapprehension or that a further inquiry of the applicant would yield a different answer to a straightforward question.

Reasoning

Procedural fairness is concerned with a fair hearing, not a fair outcome. [7] In this case it is common ground that the decision by the Delegate that SIRA lacked jurisdiction to entertain the Merit Review Application was wrong. This conclusion follows from the undisputed evidence of the applicant that she lodged her Merit Review Application within 30 days of receiving personal notice of the insurer's internal review decision. But this conclusion is not sufficient to make out the applicant's case on procedural fairness.
In order to establish that she was denied procedural fairness, the applicant must show that she did not receive a fair hearing by SIRA. It is well established that what is required for a fair hearing depends on the statutory framework within which the decision-maker operates and the particular facts and circumstances of the case. [8] Neither party suggested in their submissions that the terms of the Act were of particular significance in determining the nature and scope of SIRA's duty to afford procedural fairness to the applicant in the present case. Nonetheless, the starting point for a consideration of the applicant's procedural fairness argument must be the terms of the governing legislation.
Section 44B(1)(b) of the Act entitles an injured worker to refer a work capacity decision of an insurer for "merit review" by SIRA, provided the "dispute" has been the subject of internal review by the insurer. SIRA may decline to review a decision because the Merit Review Application is "frivolous or vexatious or because the worker has failed to provide information requested by [SIRA]" (s 44BB(3)(c)). The worker and insurer must provide such information as SIRA may reasonably require for the purpose of the merit review (s 44BB(3)(d)). SIRA is to notify the insurer and worker of the findings of the review and may make recommendations to the insurer based on the findings (s 44BB(3)(e)). If SIRA makes any such recommendations, they are binding on the insurer and must be given effect (s 44BB(3)(g)).
Under this legislative scheme, once the applicant refers the insurer's work capacity decision for review in accordance with the Act, SIRA is required to undertake the merit review. That obligation has to be discharged in the context of what the Act characterises as a "dispute" between the applicant and the insurer. SIRA is required to make findings and, if appropriate, recommendations concerning the dispute. Any such recommendations bind the insurer. SIRA therefore effectively has a decision-making function in relation to the dispute between an applicant and the insurer.
In the present case, the dispute between the applicant and CIC related to CIC's decision to terminate the benefits the applicant had been receiving as a consequence of a work related injury. This decision necessarily had significant financial consequences for the applicant. Her interests were therefore directly affected both by CIC's decision and by SIRA's response to her Merit Review Application.
The Act does not contemplate that SIRA must discharge its review functions by adopting the adversary procedures customarily employed by courts. For example SIRA, unlike courts, is empowered of its own motion to require the parties to the dispute to provide such information as it may "reasonably require" for the purposes of the review. Nonetheless, SIRA's role is not to conduct an inquiry at large into an applicant's entitlement to compensation.
SIRA is required to review the insurer's decision in the context of the "dispute" between the insurer and the applicant. The nature of the dispute will determine the issues that must be addressed by SIRA, although it may be entitled to examine other issues as well. In the absence of any provision in the Act limiting the scope of SIRA's duty to afford procedural fairness to the parties (none was suggested), SIRA was obliged to provide each party with a fair opportunity to be heard on the issues arising in the review. Those issues clearly included the fundamental question of whether SIRA was entitled to exercise the jurisdiction invoked by the applicant in review of CIC's internal review decision.
The authorities make it clear that the touchstone for determining whether a person has been denied procedural fairness, where the decision-maker is under a duty to act fairly, is whether the procedures adopted have caused "practical injustice" to that person. [9] In Kioa v West, [10] Mason J emphasised the importance the law attaches to the need to bring to a person's attention the critical issue or factor on which the administrative decision is likely to turn, so that the person may have an opportunity of dealing with it. This principle is often relied on in cases where the decision-maker acts on information adverse to the person concerned but fails to disclose the information or to give the person an opportunity to comment on its accuracy or significance. [11] The principle is also invoked where a decision-maker fails to warn the relevant person that issues not previously thought to be in dispute might be the subject of adverse findings. [12] But these are not the only circumstances in which a failure to alert a person to the critical issue for determination can result in practical injustice.
In the present case, the Delegate relied on the applicant's answer to the question concerning the date of lodgement of the Merit Review Application to support a finding that it had not been lodged within the time limit specified in s 44BB(3)(a) of the Act. The Delegate did not direct attention to whether it necessarily followed that SIRA lacked jurisdiction to entertain the Merit Review Application, presumably because the Delegate regarded the result as self-evident.
The answer given by the applicant to the standard question on the Merit Review Application did not necessarily mean that she had failed to comply with the time limit specified in s 44BB(3)(a) of the Act. Whether this was the effect of her answer depended upon whether her understanding of the question ("When did you receive the Insurer's Internal Review Decision?") reflected the true construction of the statutory provision. The primary Judge made no finding as to the reason the applicant (or the solicitors assisting her) answered the question in this way. But the answer proceeded either on a misapprehension as to the meaning of s 44BB(3)(a) of the Act or a failure to appreciate the possible significance of the answer on the question of jurisdiction. So much is made clear by the applicant's submissions to the Independent Review Officer. In fact, as the evidence demonstrates, the applicant did not "receive" the notice within the meaning of s 44BB(3)(a) of the Act until 2 June 2016 at the earliest and thus the Merit Review Application was lodged within the time prescribed by statute.
The standard form completed by the applicant did not explain that if the Merit Review Application was lodged outside the statutory 30 day period not only would the applicant contravene s 44BB(3)(a) of the Act but SIRA would lack jurisdiction to entertain the Merit Review Application. The document stated only that: "The full set of rules and requirements regarding reviews of work capacity decisions by WorkCover are outlined in: • Section 44 of the WC Act … • Division 3 of the 'Review guidelines'" The document gave no guidance as to the meaning of the word "receives" in s 44BB(3)(a) of the Act.
The absence of information on these matters would be of little moment if the applicant's attention had been drawn to them and had she been given an opportunity to make submissions prior to the Delegate deciding that SIRA lacked jurisdiction to undertake the merit review. But this did not happen. The Delegate decided that SIRA lacked jurisdiction to entertain the Merit Review Application without communicating further with the applicant or those assisting her.
SIRA considered the question of jurisdiction to be significant enough to draw it to the attention of the insurer in the email of 9 June 2016. [13] Yet no similar advice was given to the applicant. CIC provided its response to the Merit Review Application on the prescribed form after it had received SIRA's email, but the response made no reference to the jurisdictional question. It is presumably for this reason that the Delegate recorded in her reasons that no submissions regarding SIRA's jurisdiction were provided by either the applicant or CIC. [14] The difference between them, however, was that the insurer had been alerted to the issue but the applicant had not. Thus one party to the dispute had been given an opportunity to make submissions on the issue (although it did not do so) but the other party, as a practical matter, had no such opportunity. The applicant was left entirely in the dark about the existence of any jurisdictional issue.
Had CIC addressed the jurisdictional question in its response, the applicant would have been alerted to the need to provide further material in order to persuade the Delegate that SIRA had jurisdiction to deal with the Merit Review Application. Anyone reading CIC's response would assume that there was no issue as to SIRA's jurisdiction to deal with the Merit Review Application and that the only matters in dispute concerned the merits of CIC's review decision.
The procedure adopted by the Delegate in this case caused the applicant to suffer practical injustice. This is not because SIRA's decision on the jurisdictional question was wrong but because the applicant was denied the opportunity to make submissions to SIRA on the issue that proved critical to the outcome of her Merit Review Application. Specifically, the applicant was denied the opportunity to make submissions:

showing that she had lodged the Merit Review Application within the time limit imposed by s 44BB(3)(a) of the Act, having regard to the proper construction of that provision; and
that, in any event, non-compliance with the time limit did not deprive SIRA of jurisdiction to entertain the Merit Review Application.

It is no answer to say, as did Mr Robinson, that the Delegate was entitled to take at face value the applicant's answer to the question as to when she received CIC's internal review decision. Her answer was not necessarily determinative of the factual issue the Delegate regarded as critical, namely whether the applicant had complied with s 44BB(3)(a) of the Act. At the most basic level, so far as the Delegate was aware, the applicant's answer may have been the product of a simple dating error in completing the form. As it happens, the applicant, if given the opportunity, could have provided SIRA with information that, despite appearances, would have shown that she had lodged the Merit Review Application within the time limit specified by statute.
Nor is it an answer that the applicant received assistance from solicitors in preparing and lodging the Merit Review Application. The evidence does not reveal the nature of the assistance the applicant received but it can readily be inferred that the solicitors assisting the applicant did not appreciate the potential difficulty in stating that notice of CIC's review decision had been received on 2 May 2016. In any event, for the reason already given the answer was not necessarily determinative of either the factual or legal questions that the Delegate had to consider before concluding that SIRA lacked jurisdiction to entertain the Merit Review Application. The fact that the applicant had received assistance did not detract from the need to afford procedural fairness by giving her the opportunity to make submissions on the critical issue that determined the outcome of the Merit Review Application.
The conclusion that the applicant was denied procedural fairness does not imply that SIRA is obliged, when conducting a merit review of an insurer's work capacity decision, to check the accuracy of information provided by an applicant that appears to be adverse to his or her case. There was a denial of procedural fairness in this case because neither the Delegate nor CIC directed the applicant's attention to the critical issue on which SIRA's decision turned. The applicant was thus denied the opportunity to be heard on that issue.
Ground 1(a) of the Amended Notice of Appeal raises some difficult questions concerning the effect of non-compliance with the time limit specified in s 44BB(3)(a) of the Act, in particular whether a failure to comply with the time limit deprives SIRA of jurisdiction to determine a Merit Review Application. Although the parties addressed this question, the issues were not canvassed in depth. In the absence of full argument it is neither necessary nor desirable to determine Ground 1(a).
Ground 1(c) overlaps to some extent with Ground 1(b) and was approached in a similar way. It is not necessary to determine whether a finding as to compliance or non-compliance with s 44BB(3)(a) of the Act is a finding as to a jurisdictional fact.

Orders

The following orders are made:
Leave to appeal granted.
Allow the appeal.
Set aside the orders made by Button J on 23 June 2017.
In lieu thereof make the following orders: (1) Set aside the decision of the State Insurance Regulatory Authority made on 30 June 2016. (2) Remit the applicant's application for merit review of the insurer's internal review decision to the State Insurance Regulatory Authority for determination according to law. (3) The first defendant pay the plaintiff's costs of the proceedings.
The first respondent pay the appellant's costs of the appeal.

Endnotes

Bhusal v Catholic Health Care [2017] NSWSC 838 (Primary Judgment).
See at [37]-[39] below.
Section 44BF(1) of the Act now provides that a legal practitioner is not entitled to be paid or recover legal costs for a legal service provided in connection with review of a work capacity decision if, relevantly, the regulations do not fix any maximum costs for providing the service. The Workers Compensation Regulation 2016 (NSW) prescribes the maximum costs payable or recoverable for such a service (cl 99B(1)).
Section 44BB(1)(b) of the Act is reproduced at [5] above.
Primary Judgment at [40]-[42].
Reproduced at [32] above.
SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152; [2006] HCA 63 (SZBEL) at [25] per curiam; Minister for Immigration and Border Protection v WZARH (2015) 256 CLR 326; [2015] HCA 40 (WZARH) at [54]-[55] (Gageler and Gordon JJ).
SZBEL at [26].
Re Minister for Immigration and Multicultural Affairs; Ex parte Lam (2003) 214 CLR 1; [2003] HCA 6 at [34], [38] (Gleeson CJ); WZARH at [33] (Kiefel, Bell and Keane JJ).
(1985) 159 CLR 550; [1985] HCA 81 at 587.
Kioa v West itself was such a case.
See, for example, AZAAD v Minister for Immigration and Citizenship (2010) 189 FCR 494; [2010] FCAFC 156.
See at [13] above.
See at [16] above. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 26 March 2018

Workers Compensation Amendment Act 2015(NSW)

While the Workers Compensation Amendment Act 2015(NSW)

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