Cook v City of Sydney

THE GROUNDS RELIED UPON BY THE PLAINTIFF

1. As previously noted, the plaintiff has advanced a number of grounds in support of the relief sought. One of those grounds asserted that the panel erred in failing to take into account a relevant consideration, namely the adjustment to be made to the level of WPI having regard to the effect of the plaintiff's treatment. The first defendant conceded that this was an error, but argued that I should not grant the relief sought.

Submissions of the plaintiff

1. Senior counsel for the plaintiff submitted that the assessment of the degree of WPI must be made in accordance with the applicable provisions of the Permanent Impairment Guidelines ("the Guidelines"), Chapter 11 of which governs psychiatric and psychological disorders. Paragraph 11.9 of the Guidelines deals with the effect of treatment in the following terms: "Consider the effects of medication, treatment and rehabilitation to date. Is the condition stable? Is treatment likely to change? Are symptoms likely to improve? If the injured worker declines treatment, this should not affect the estimate of permanent impairment. The psychiatrist may make a comment in the report about the likely effect of treatment or the reasons for refusal of treatment".
2. Senior counsel submitted that in reaching its assessment of the plaintiff's WPI, and in issuing the fresh certificate, the panel had failed to take into account the effect of the plaintiff's treatment. It was submitted that in view of that (conceded) error, the relief sought in the summons should be granted.
3. Senior counsel acknowledged that s. 378 of the WIMWC Act conferred a power on the panel to correct an obvious error. However, and even in circumstances where the first defendant had indicated that it would agree to that course, senior counsel submitted that it did not offer to the plaintiff an avenue of redress which was as convenient and beneficial as the relief sought in the present proceedings. It was submitted that this court should be slow in exercising its discretion to refuse to grant such relief.

Submissions of the first defendant

1. Counsel for the first defendant submitted that in view of the provisions of s. 378, the relief sought should not be granted. It was submitted that s. 378 conferred a wide discretion on the panel to rescind, alter or amend its decision, correct any obvious error and issue a replacement certificate.
2. Counsel further submitted that in commencing the present proceedings the plaintiff had sought to put himself in a more advantageous position than would be the case if he were to rely upon the remedy contained in s. 378. Counsel submitted that the plaintiff was, in truth, using a "minor and easily fixed error" as a means of quashing the entire certificate, so that he could then "roll the dice" before a newly constituted panel in an attempt to achieve an assessment of WPI which met the threshold for an award of modified common law damages.
3. In these circumstances, whilst accepting that there was an error, it was submitted that I should decline to grant the relief sought.

Consideration

1. I turn firstly to the legislation. Section 378 of the WIMWC Act is in the following terms: 378 Reconsideration of decisions of Registrar or Appeal Panel (1) The Registrar or an Appeal Panel may reconsider any matter that has been dealt with by the Registrar or an Appeal Panel, respectively, and rescind, alter or amend any decision previously made or given. (2) Without limiting subsection (1), if the Registrar is satisfied that there is an obvious error in the text of a decision, the Registrar may alter the text of the decision to correct the error. (3) Without limiting subsection (1), if an Appeal Panel is satisfied that its decision or any medical assessment certificate it has issued contains an obvious error, the Appeal Panel concerned may correct that error and, if necessary, issue a replacement medical assessment certificate (which is to prevail over any previous certificate). (4) The reconsideration of a matter that is in response to an application for reconsideration must be completed within 2 months after the application is received. (5) This section does not affect any other power under this Act or the 1987 Act to review or amend a decision.
2. It will be noted that the power conferred upon the panel by s. 378(3) to correct an obvious error is a discretionary one, as is the related power to issue a replacement certificate.
3. In circumstances where error is established, this Court should be slow to exercise its discretion against granting the relief sought. In Enfield City Corporation v Development Association Commission [2000] HCA 5; (2000) 199 CLR 135, Gaudron J observed (at [56]): "Those exercising executive and administrative powers are as much subject to the law as those who are or may be affected by the exercise of those powers. It follows that, within the limits of their jurisdiction and consistent with their obligation to act judicially, the courts should provide whatever remedies are available and appropriate to ensure that those possessed of executive and administrative powers exercise them only in accordance with the laws which govern their exercise. The rule of law requires no less".
4. One circumstance which may justify a refusal to grant relief is where there is an equally convenient and beneficial remedy available. In R v Commonwealth Court of Conciliation and Arbitration; Ex parte Ozone Theatres (Aust.) Limited [1949] HCA 33; (1949) 78 CLR 389 the High Court (Latham CJ, Rich, Dixon, McTiernan and Webb JJ) observed (at 400): "For example the writ may not be granted if a more convenient and satisfactory remedy exists, if no useful result could ensue, if the party has been guilty of unwarrantable delay or if there has been bad faith on the part of the applicant, either in the transaction out of which the duty to be enforced arises or towards the court to which the application is made. The court's discretion is judicial and if the refusal of a definite public duty is established, the writ issues unless circumstances appear making it just that the remedy should be withheld".
5. Bearing in mind these principles, I am of the view that the plaintiff is entitled to the relief he seeks. I have reached that conclusion for a number of reasons.
6. Firstly, and in my view importantly, the terms of s. 378 do not confer any right or entitlement upon a person in the position of the plaintiff. As I have observed, s. 378(3) confers a discretion upon the panel to (inter alia) correct error. There is no guarantee that if the plaintiff sought to invoke the provisions of s. 378, any such application would be granted. In these circumstances, it could hardly be said that the remedy afforded by s. 378 is as convenient or satisfactory to the plaintiff as the relief he seeks in these proceedings.
7. Secondly, s. 378 does not, by its terms, incorporate any independent review. On the contrary, it contemplates the matter being referred back to the original decision maker (in this case, the panel).
8. Thirdly, the error in this case arises from a fundamental failure on the part of the panel to properly carry out its assessment. Whether, as counsel for the first defendant suggested, this was due to an oversight is not something that I am able to determine. What is clear is that a failure by a medical panel to properly carry out a medical assessment constitutes a failure to properly perform a fundamental function. In my view, such a failure is not properly categorised as "minor".
9. Fourthly, I am unable to accept the submission of counsel for the first defendant that the error is one which is "easily fixed". What is required to "fix" the error involves taking into account the effect(s) of the plaintiff's treatment. The plaintiff has a long and complicated psychiatric history, in the course of which a large number of medical and associated reports have been generated. In light of that history, taking into account the effect of his treatment for the purposes of assessing his level of WPI may well have its complications.
10. For all of these reasons, and in circumstances where error has been conceded, I am of the view that this is a matter in which the plaintiff should have the relief he seeks. It is therefore not necessary for me to consider the remaining grounds upon which he relies.

ORDERS

1. I make the following orders: 1. The decision of the second defendant, the Appeal Panel of the Workers Compensation Commission of NSW revoking a medical assessment certificate issued by Dr Patrick Morris on 15 April 2014 is quashed. 2. The medical assessment certificate issued by the second defendant in respect of the plaintiff is quashed. 3. The matter is remitted to the Third Defendant, the Registrar of the Workers Compensation Commission of NSW, to be further dealt with according to law.

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: 18 December 2015