34 From pp 385 and following, AMA5 sets out the methods by which one applies Table 15-3 by use of examples.
35 The Guidelines have been repeated in the above detail, because it is the submission of the defendants (and the approach of the Medical Appeal Panel) that the assessment of the WPI is "objective". As it is used in the submission, the term "objective" means the categorisation (and consequential assessment) is performed without regard, or without significant regard, to the effect of the injury on the daily activities of the person being assessed.
36 Adapting the situation currently before the Court, on the above submission, a person, who suffers an injury of a kind suffered by Mr Cameron up to and including 1993, who, after a laminectomy and spinal fusion, is able to perform all normal daily activities would be classified as DRE Lumbar Category IV or DRE Lumbar Category V (assuming radiculopathy). On that submission, one, who was able to perform full-time duties (or full-time duties with some care and/or restriction) would be entitled to a whole person impairment of between 20 and 28%. The above, of course, assumes that the injury occurred as a workplace injury. Subject to the operation of s 68B of the Workers Compensation Act, any subsequent incapacitating injury to the same area would receive no, or no significant, WPI assessment.
37 In the current circumstances, it is the submission of the defendant (accepted by the Medical Appeal Panel) that the pre-existing injuries of Mr Cameron (i.e. prior to the workplace injury of 14 April 2004) are required to be categorised as either DRE Lumbar Category IV or DRE Lumbar Category V, even though full-time work was performed thereafter. As a consequence of which, the workplace injury, which aggravated the pre-existing injury and caused an incapacity for work, could result in a whole person impairment of a maximum of 8% (i.e. the difference between 20%, the lowest percentage in DRE Category IV, and 28%, the highest percentage in DRE Category V). In this Appeal Assessment, the difference resulted in a 6% WPI from the later injury. Yet neither AMA5 nor the WorkCover Guides deal expressly with the method of calculation of pre-existing injury, and, unlike the requirement in relation to the assessment of WPI for workplace injuries (s 322), there is no statutory requirement to have or follow WorkCover Guides in assessing pre-existing injuries (s 323 of the Act and s 68B of the Workers Compensation Act).
The Reconsideration Decision
38 There is no challenge, in these proceedings, to the decision of Ms Stephens of 27 January 2006. There is a challenge to the decision of Mr Wormald of 5 February 2007. The reconsideration decision has an effect in two quite different ways. First, it is a decision to reconsider the decision of 27 January 2006. Secondly, having granted the application for reconsideration, the delegate of the Registrar grants leave to appeal. (Leave to appeal is used here to refer to the satisfaction of the "gateway" required before the appeal may proceed.)
39 The rationale for the grant of reconsideration is, in turn, on two bases. In [7] of the decision of 5 February 2007 (the Second Registrar's Decision), the delegate of the Registrar notes that the Registrar who made the determination of 27 January 2006 (the First Registrar's Decision) has resigned her position and is not able to deal with the reconsideration application and proceeds to determine the application for reconsideration. There is no analysis in relation to that aspect. Secondly, the Second Registrar's Decision takes the view, notwithstanding its own injunction not to act as a review of the First Registrar's Decision, that there was error in the First Registrar's Decision, based upon a failure by the Registrar to understand that the Original Assessment was flawed in that it modified the post-workplace injury WPI assessment to take account of the surgical procedure.
40 As has been noted already, it is conceded in these proceedings before the Court, that the inclusion in the WPI assessment of 2% to take account of the surgical procedure was not an error in the Original Assessment. The Second Registrar's Decision that, in that regard, error existed in the Original Assessment was manifestly wrong.
41 As to the grant of leave to appeal, the Second Registrar's Decision dealt with the proper interpretation of s 327(4) of the Act and a submission of or on behalf of Mr Cameron based upon the judgment of the Supreme Court in Riverina Wines Pty Ltd v Registrar of the Workers Compensation Commission [2005] NSWSC 1260 at [24]. The Registrar cited Summerfield v Registrar of the Workers Compensation Commission [2006] NSWSC 515 (per Johnson J) and then extracted the following two passages from the judgment of the Court of Appeal in Campbelltown City Council v Vegan & Ors [2006] NSWCA 284. They were:
"An appeal does not proceed to an Appeal Panel unless it appears to the Registrar that at least one of the grounds for appeal 'exists', which I take to mean that the ground is, on its face, valid and apparently credible." (Per Handley JA at [8].)
And
"… to say that a ground of appeal 'exists', as it 'appears' to the Registrar, is to say no more than that the application before the Registrar satisfies the minimum requirements of s 327(3). There is no suggestion that the Registrar is required to consider whether the ground should succeed or to do more than satisfy herself that a ground, in conformity with s 327(3), is alleged and (perhaps) cannot be dismissed as patently untenable or colourable." (Per Basten JA at [133].)
42 The Second Registrar's Decision expresses the view that the appeal by Brookvale Tyres, which the delegate of the Registrar was then purportedly considering, was, "on its face, valid and apparently credible, and cannot be dismissed as patently untenable or colourable." (Second Registrar's Decision at [43].)
43 The Second Registrar's Decision does not discuss whether the provisions of s 327(4) of the Act, as amended in 2006, were applicable.
The Power to Reconsider
44 The effect of s 378 of the Act, as inserted in the amendments in 2006, is arguably retrospective. It operates to allow reconsideration of an assessment for which the appeal period has already expired (the period for which, in present circumstances, would be 28 days after the medical assessment). Nevertheless, s 378 is procedural and, by express provision, applies to decisions made before the commencement of the section: see Maxwell v Murphy [1957] HCA 7; (1957) 96 CLR 261; clause 6 of schedule 4 of the Workers Compensation Legislation Amendment (Miscellaneous Provisions) Act 2005. The section allows a reconsideration of the First Registrar's Decision.
45 The Second Registrar's Decision implicitly refers to the difficulty in the construction of the provisions of s 378 but does not deal with its resolution. Subsection 378(1) allows the Registrar, an approved medical specialist or an Appeal Panel to reconsider any matter that has been dealt with by the Registrar, the approved medical specialist or the Appeal Panel. The use of the definite article to qualify approved medical specialist and Appeal Panel, where second occurring, requires a reconsideration by the same AMS or Appeal Panel as made the original decision. While the definite article is used to qualify "Registrar" each time the term is used in the subsection, it seems that the preferable construction is that the same person is to exercise the powers, under s 378 of the Act, as exercised the powers originally.
46 The difficulty with such a construction is that the definite article qualifies the Registrar each occasion that the word occurs. This, however, is because there is only one Registrar. That it is the same person that is required to reconsider it as made the original decision is supported by the ordinary meaning of the term "reconsider". The Macquarie Dictionary defines the term as "1. To consider again. 2. To consider again with a view to a change of decision or action." The Oxford English Dictionary defines the term "reconsider" in the following way:
"1. To consider (a matter or thing) again.
…
b. To consider (a decision, etc.) a second time, with a view to changing or amending it if now disapproved of; to rescind, alter."
47 The Second Reading Speech adds little to the wording of the section, but seems to confirm the requirement that it be reconsidered by the same person as issued the original decision. It says:
"To lessen the need for formal appeal or review and to expedite resolution of matters the registrar, approved medical specialists and medical appeal panel are each given an additional power to reconsider their decisions provided that such reconsideration takes place within two months of a referral. Such a reconsideration power will allow, for example, an approved medical specialist to reconsider his or her decision, taking into account documentation that was available at the time but was inadvertently overlooked or was not referred on by the registrar. (Emphasis added.)
48 The Second Registrar's Decision (at [7]) seems to acknowledge the necessity to have the original decision-maker consider the issues again and then, it seems, relies upon the doctrine of necessity on the basis that the original decision-maker has retired.
49 The doctrine of necessity, usually utilised in circumstances of an application relating to the bias of a tribunal or decision maker, has very restricted capacity. It applies to allow a decision maker, who would otherwise be disqualified, to hear and decide a case because no other person has the capacity so to do. Its usage is very restricted: see Builders Registration Board (QLD) v Rauber (1983) 57 ALJR 376 at 386; Australian National Industries Ltd v Spedley Securities Ltd (1992) 26 NSWLR 411 at 421 et seq and at 433 et seq (per Kirby P and Mahoney JA respectively); Laws v Australian Broadcasting Tribunal [1990] HCA 31; (1990) 170 CLR 70 at 88-89 (per Mason CJ and Brennan J).
50 The difficulty with the operation of the doctrine of necessity is that it assumes that the decision maker, other than for the reason for which it is alleged the decision maker is disqualified, is otherwise authorised to make the decision in question. If the reference to "Registrar", with the definite article, were to be construed in the same way as seems to be the intention in relation to the reference to both AMS and the Appeal Panel, then it is only the person who made the original decision that is authorised to reconsider it.
51 The alternative construction is that the Registrar is entitled to reconsider it. On that construction, every decision of a delegate of the Registrar is a decision of the Registrar. However, the construction does not sit comfortably with the use of the definite article, insofar as it applies to an AMS and an Appeal Panel. It would mean that the provisions of s 378 operated differently in relation to the Registrar than it did in relation to the other two classes of decisions. Given that there is only one Registrar, it may be that the Registrar is taken to have made every decision of a delegate thereof and that therefore the Registrar is capable of "reconsidering" such a decision. It is unnecessary to determine this question finally. Nevertheless, it is at least strongly arguable that another delegate of the Registrar does not have the authority to reconsider the earlier-made decision of the Registrar or an earlier delegate.
52 No party has raised the issue of whether the satisfaction of the Registrar, pursuant to s 327(4) of the Act, is a "decision" of the Registrar for the purpose of s 378 of the Act: see s 378(6) and cf ss 122(4), 284, 290(6)(c), 297, 304B, 317, 329 and 357.
53 The more fundamental question that arises from the Second Registrar's Decision is the application by the Registrar's delegate of the unamended terms of s 327(4) of the Act. Assuming, without deciding, that the Registrar had authority to reconsider the refusal to grant leave, the second Registrar's grant of leave was predicated on the basis that, as stated, the delegate applied a test which was whether a ground of appeal exists for the purpose of s 327(4) of the 1998 Act: see [39] of the Second Registrar's Decision and the reference in paragraphs [41], [42] and [43] to the tests adumbrated in Campbelltown City Council v Vegan, supra.
54 Having determined that it was appropriate to reconsider the refusal of leave earlier made, the delegate of the Registrar was required to determine whether the appeal should proceed. The provisions that applied at the time that determination was required were the provisions of s 327(4), inserted by the amendments in 2006. The alternative is arguable, but was not argued by any party.
55 The amendment to s 327(4) of the Act was inserted at the same time as s 378. The amendments to s 327(4) were inserted by clause [22] of schedule 1 to the Workers Compensation Legislation Amendment (Miscellaneous Provisions) Act 2005 No 113. Schedule 4 to the aforesaid Amending Act provides for savings and transitional amendments and, while certain provisions are given express transitional application (e.g. s 378 applies in respect of decisions made before the commencement of the section), no express saving or transitional provision is made in relation to the amendment to s 327(4) of the Act, which is contained in Part 7 of Chapter 7 of the Act. Not only was s 378 given specific retrospective effect (i.e. as applying to decisions made before the commencement of the section), but the amendments made to s 329 relating to a reconsideration of a matter for medical assessment were also given identical retrospective operation.
56 The amendments made to s 327(4) of the Act are procedural in effect. Ordinarily, the amended provision would apply immediately to any application or appeal, whether the application was made before or after the promulgation of the amendment to the section. The complication that arises with this amendment is that the Second Registrar's Decision is not an initial determination of whether the appeal should proceed, but a reconsideration of the function earlier performed.
57 Notwithstanding the doubts arising from that circumstance, counsel for Mr Cameron submits, and Brookvale Tyres admits, that, at the time of the reconsideration, the question before the Registrar's delegate was the question posed by s 327(4), as amended in 2006. The submission of Brookvale Tyres was:
"[15] On 5 February 2007 the first defendant's delegate decided that reconsideration of the first defendant's earlier decision was appropriate and gave detailed reasons…. At that time s 327(4) required the first defendant to be 'satisfied that, on the face of the application and any submissions made to the registrar, at least one of the grounds for appeal specified in sub-section (3) has been made out.' The first defendant was so satisfied for the reasons given and the matter was referred to an MAP."
58 Manifestly, the delegate of the Registrar, in the determination of 5 February 2007, did not address the question as to whether or not he was satisfied that on the face of the application and any submission made, at least one of the grounds had been made out. The Registrar's delegate addressed only the question of whether or not the ground "existed". In so doing, the Registrar addressed and answered the wrong question.
59 The provisions of s 327(4) do not require the actual existence of a state of facts, namely the making out of a ground of appeal, but require only the satisfaction of the Registrar of that fact.
"It cannot be denied that, if the legislature see fit to do it, any event or fact or circumstance whatever may be made a condition upon the occurrence or existence of which the jurisdiction of a court shall depend. But, if the legislature does make the jurisdiction of a court contingent upon the actual existence of a state of facts, as distinguished from the court's opinion or determination that the facts do exist, then the validity of the proceedings and orders must always remain an outstanding question until some other court or tribunal, possessing power to determine that question, decides that the requisite state of facts in truth existed and the proceedings of the court were valid. Conceding the abstract possibility of the legislature adopting such a course, nevertheless it produces so inconvenient a result that no enactment dealing with proceedings in any of the ordinary courts of justice should receive such an interpretation unless the intention is clearly expressed. In the past a tendency may have appeared in the superior courts of common law to adopt constructions of statutes conferring powers on magistrates and others which would result in the withdrawal from their exclusive or conclusive determination matters which we should now think were intended for their decision. But, even then, it must not be forgotten, that this tendency was manifested in proceedings by certiorari and not in prohibition. When prohibition is based upon want of jurisdiction it means that the proceedings are coram non judice , that a judgment or order, when given or made, would be void." ( Parisienne Basket Shoes Pty Ltd v Whyte [1938] HCA 7; (1938) 59 CLR 369 at 391-392, per Dixon J.)
60 Section 327(4) does not make the arguability, existence or success of the ground of appeal, objectively determined, the criterion for the appeal to proceed. It makes the satisfaction of the Registrar the criterion. The satisfaction of the Registrar is that at least one of the grounds of appeal has been made out.
61 In Riverina Wines Pty Ltd v Registrar of the Workers Compensation Commission of NSW [2007] NSWCA 149, Campbell JA, discussing the reasons for judgment of Handley JA and Basten JA in Campbelltown City Council v Vegan, supra, said:
"Even so, both the formulation of Handley JA and of Basten JA require the Registrar to form an opinion that does not go as far as deciding that the ground is actually made out. In my view, both formulations are correct in that respect. To decide that a ground of appeal ' exists ' is not the same as deciding that the ground of appeal has actually been made out. A ground of appeal is a statement of a contention one wishes to make in the course of an appeal, as a reason why the appeal should succeed. A ground of appeal can ' exist ' if it is a contention of that type, made in circumstances where there is a sufficiently realistic prospect of the ground being made out. And in deciding whether the prospect of the ground being made out is ' sufficiently ' realistic, one turns to the context in which, and purpose for which, the question is being asked. In the context of this particular piece of legislation, deciding that the ground exists involves the Registrar forming a view that the ground of appeal has enough substance to warrant the appeal proceeding." ( Riverina Wines , supra, per Campbell JA at [76].)
62 As earlier stated, the satisfaction of the Registrar does not determine the ground of appeal. The Registrar determines whether an appeal should proceed. But as is made clear by Campbell JA in Riverina Wines, supra, the satisfaction that "the ground is made out" is significantly different from (and certainly not the same as) a satisfaction that "the ground of appeal exists". Further, the test "made out" is a more onerous one than the test "exists", and a satisfaction as to the latter would not include the former.
63 As stated by Jordan CJ:
"I quite agree that the mere fact that a tribunal has made a mistake of law, even as to the proper construction of a statute, does not necessarily constitute a constructive failure to exercise jurisdiction: R v Minister of Health [1939] 1 KB 232 at 245-246. But there are mistakes and mistakes; and if a mistake of law as to the proper construction of the statute investing a tribunal with jurisdiction leaves it to misunderstand the nature of the jurisdiction which it is to exercise, and to apply 'a wrong and inadmissible test': Estate and Trust Agencies (1927) Ltd v Singapore Improvement Trust [1937] AC 898 at 917; or to 'misconceive its duty', or 'not to apply itself to the question which the law prescribes': R v War Pensions Entitlement Appeal Tribunal (1933) 50 CLR 228 at 242-243; or 'to misunderstand the nature of the opinion which it is to form': R v Connell (1944) 69 CLR 407 at 432; in giving a decision in exercise of its jurisdiction or authority, a decision so given will be regarded as given in a purported and not a real exercise of jurisdiction, leaving the jurisdiction in law constructively unexercised, and the tribunal liable to issue of a prerogative writ of mandamus to hear and determine the matter according to law: R v Board of Education [1910] 2 KB 165." ( Ex parte Hebburn Ltd v Kearsley Shire Council (1947) 47 SR(NSW) 416 at 420; (1947) 64 WN(NSW) 107 at 108, per Jordan CJ with whom Davidson and Street JJ concurred.)
64 The judgment of Jordan CJ recited above was cited with approval by Aickin J in R v Toohey; Ex parte Northern Land Council [1981] HCA 74; (1981) 151 CLR 170 at 268 and by Brennan J (as he then was) in Public Service Association of South Australia v Federated Clerks' Union of Australia (SA) [1991] HCA 33; (1991) 173 CLR 132 at 143-144.
65 As a consequence of the application of the foregoing (together with the conclusion that the delegate of the Registrar misconceived his duty, did not apply himself to the question which the law prescribes, applied a wrong and inadmissible test and misunderstood the nature of the opinion that he was to form), the "satisfaction" under s 327(4) of the Act was only a purported satisfaction and the jurisdiction required to be exercised by s 327(4) of the Act remains constructively unexercised. There is an error of law and an error of jurisdiction. Prerogative writ, or orders in the nature of prerogative writ, will issue.
"If such an administrative tribunal falls into an error of law which causes it to identify a wrong issue, to ask itself a wrong question, to ignore relevant material, to rely on irrelevant material or, at least in circumstances, to make an erroneous finding or to reach a mistaken conclusion and the tribunal's exercise or purported exercise of power is thereby affected, it exceeds its authority or powers. Such an error of law is jurisdictional error which would invalidate any order or decision of the tribunal which reflects it." ( Craig v South Australia [1995] HCA 58; (1995) 184 CLR 163 at 179.)
66 Further, the above principle relates to jurisdictional error. Because of the provisions of s 69 of the Supreme Court Act 1970 (including the broadening of the definition of error on the face of the record in s 69(4) thereof), certiorari will issue out of the Supreme Court for error of law on the face of the record, including the reasons for decision. Such an error should be an error upon which the judgment is based and it must be an error of a kind that affects the task undertaken by the tribunal.
67 In the current proceedings, the application of the wrong test and the satisfaction of the Registrar at a lower standard than that required by the provisions as they existed at the time of the exercise, necessarily involves the proposition that the wrong exercise of the jurisdiction conferred by s 327(4) of the Act has affected the task undertaken by the Registrar through his delegate.
68 Further, the Registrar lacks the authority to determine questions of law authoritatively, or bindingly, or to make an order or decision otherwise than in accordance with the law. As earlier stated, the determination that, as a matter of law, the WPI could not include an adjustment for the surgery undertaken prior to the workplace injury, was an error. It was an error of principle and law in the proper construction of the Act and the function of the AMS under the Act.
The Challenge to the Appeal Certificate
69 Given the conclusion reached by the Court that the Registrar, through the delegate, has not, pursuant to the terms of s 327(4) of the Act, satisfied himself that at least one of the grounds for appeal has been made out, the appeal could not have proceeded and the Medical Appeal Panel had no jurisdiction to proceed with the appeal.
70 Further, Mr Cameron submits that the Appeal Certificate is vitiated by two independent errors of law. First, the Medical Appeal Panel was confined in its jurisdiction to the correction of an error identified in the Original Certificate and/or the reasons therefor. Secondly, the Medical Appeal Panel was wrong, in law, in the method that it adopted for the ascertainment of the pre-workplace injury impairment.
71 The AMS came to a conclusion, already outlined, that there was a 16% whole person impairment. The reasons for that assessment were expressed at p 6 (p 35 of the Affidavit of Matthew Berringer of 5 July 2007), which, after stating the basis of the initial assessment of 22% WPI (post-injury) plus an additional 2% to take account of the effect of the surgery, says:
"His condition since the subject injury has evidently been similar to what I would regard as that which follows 'unsuccessful' surgery.