Cottom v Scone Racing Club Ltd

Supreme Court of NSW|2023-06-16|Before: Schmidt AJ

Solicitors: Bale Boshev Lawyers (Plaintiff) HWL Ebsworth (First Defendant) Crown Solicitor's Office (Second and Third Defendants) File Number(s): 2022/309723

JUDGMENT

Mr Cottom injured his knee in 2008 when he slipped and fell while employed by Scone Race Club Ltd. He seeks judicial review of a March 2022 decision of a medical appeal panel constituted under s 328 of the Workplace Injury Management and Workers Compensation Act 1998 (NSW), dismissing his appeal from an October 2020 medical assessment certificate which had been issued by a medical assessor, Dr Burns.
Both the Personal Injury Commission and the appeal panel have filed submitting appearances.
Mr Cottom brought these proceedings out of time, after he unsuccessfully pursued an application to have the appeal panel's decision reconsidered. That application was refused in September 2022.
Mr Cottom pursued that application being concerned about an apparent failure of the Personal Injury Commission to provide the members of the appeal panel with his March 2022 application to have the panel consider further documents on which he wished to rely. He claimed that they evidenced that there had been a deterioration in his condition since Dr Burns' assessment, as well as the development of a consequential injury to his lumbar spine.

The out of time application

Applications for judicial review must be made within three months of the decision sought to be reviewed: r 59.10 of the Uniform Civil Procedure Rules 2005 (NSW). There is no issue that the Court has power to grant the extension of time Mr Cottom sought, despite the proceedings having been brought over five months after the panel's decision.
That leave is, however, opposed by the Race Club, which contends that it is not in the interests of justice for the Court to grant the application, because Mr Cottom's pleaded grounds are without merit.
For the following reasons, I am satisfied that in all the circumstances of this case, justice requires that the leave sought must be granted.

The grounds Mr Cottom advanced

In order to resolve what lies in issue in this case, the grounds advanced in Mr Cottom's second amended summons need to be borne in mind: "1. The Plaintiff's application to admit late documents ("AALD") dated 9 March 2022, and the submissions by the First Defendant dated 15 March 2022 created a contest on "liability" for the claimed consequential spine injury. Both were relevant to the consideration of the Second Defendant and in the consideration by it of the appeal. It was relevant to the disputed level of "whole person impairment" ("WPI") caused by his accepted injury. The Second Defendant, in not receiving and considering the materials, demonstrated "practical injustice" and "constructive failure to exercise jurisdiction", both of which constitute jurisdictional error (Sleiman v Gaddalla Ply Ltd [2021] NSWCA 236 [at 90] ("Sleiman") per Leeming JA [at 20]) (with whom Payne and Gleeson JA agreed). 2. The Plaintiff was also denied procedural fairness, in so far as he asserted by letter sent to the Second Defendant on 9 March 2022 (attaching the AALD) that if the Plaintiff's evidence attached to the AALD was not to be included in the material before the Panel, the Plaintiff wished to provide further submissions and make oral representations. It was a clear and unambiguous claim for the applicant be afforded procedural fairness (see e.g Phillips v JW Williamson and RW Williamson trading as Williamson Bros [2016] NSWSC 1681) ("Phillips"). The Second Defendant failed to give the Plaintiff any such opportunity, and in its decision under review, failed to consider the material or his request. The Second Defendant, in refusing or failing to consider the materials contained in the file of the PIC, determined the entitlements of the Plaintiff in circumstances that created "practical injustice" and material prejudice, such that the decision demonstrates constructive failure to exercise jurisdiction, and should be quashed. Roger v De Gelder (2015) 71 MVR 514; ("De Gelder'') Phillips v RW Williamson [2016] NSWSC 1681("Phillips"). 3. The Plaintiff's evidence of his claimed consequential injury to the lumbar spine was that it had not reached "maximum medical improvement". The unchallenged evidence was that it had occurred in the period after the original MAC and the filing of the Plaintiff's original application for reconsideration and his appeal to the Second Defendant. The unchallenged evidence was that the claimed consequential injury to his spine was yet to have any definitive treatment and, inferentially, not yet capable of being assessed as it had not reached "maximum medical improvement". It was for those reasons, the AALD was filed. In failing consider the request for the opportunity to be heard, the Second Defendant also failed to consider the mandates of the applicable guidelines for assessment of WPI, which include consideration of the stability of the impairment. The failure to consider (or receive) the evidence demonstrates the Panel has made an error in the exercise of its delegated power. This is also a constructive failure to exercise jurisdiction, or jurisdictional error (Phillips [at 61-67]). 4. The Second Defendant in confirming the certificate of Dr Burns of 21 October 2020 and denying the appeal, failed in its statutory duty. The record of the Second Defendant demonstrates the decision was "manifestly deficient and [did] not constitute compliance with the minimum obligation" of the Second Defendant's delegated statutory power: Vegan [at 129]; Cole v Wenaline Pty Ltd [2010] NSWSC 78 [at 131; Ryder v Sundance Bakehouse [2015] NSWSC 526 [at 28]; Phillips v RW Williamson [2016] NSWSC 1681; Allianz v Rutland [2015] NSWCA 328; Boyce v Allianz [2018] NSWCA 22 [see cases cited at 112ff]. 5. The Second Defendant's decision also demonstrates a material error in the exercise of the delegated power and the decision is, therefore, ultra vires: Meeuwissen v Boden (2010) 78 NSWLR 143 "Meeuwissen" [per Basten J at 148] and/or legally unreasonable: Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 ("Li") and Marsh v Insurance Group Limited t/as NRMA Insurance Limited [2021] NSWSC 619 ("Marsh"). 6. The Plaintiff relies on grounds 1 -5 above to assert "jurisdictional error" because the Second Defendant in its decision failed to apply itself to the real question to be decided, leading to jurisdictional error. These can be properly characterised "as a purported and not real exercise of (its) statutory function in [s 323] leaving that statutory function unexercised": Rodger v De Gelder (2015) MVR 514, Gleeson JA (in majority) at [109]; Ex parte Hebburn Ltd; Re Kearsley Shire Council (1947) 47 SR (NSW) 416 at 420 (Jordan CJ)."

Issues

In issue is whether: 1. the panel ever saw Mr Cottom's application; 2. the panel failed to deal with his application as it was required to do; 3. the panel so erred in the exercise of its powers, that orders quashing its decision should be made; and 4. those orders should be refused, because even if the application had been dealt with by the panel, it could not have resulted in a decision any different to that to which it came.

The parties' cases

The parties' cases raise the proper construction of the statutory scheme and questions going to the exercise of the Court's discretion to make the orders sought.
Mr Cottom's case was that having made an application to rely on further evidence, as the statutory scheme permitted, his appeal could not be considered or determined by the panel without that application being considered and resolved.
The Race Club's case was that the panel did not need to consider or address Mr Cottom's application to rely on additional material, given its statutory task in relation to the grounds of appeal which it had to consider. The evidence did not establish that the application had not been considered by the panel and even if it did and the panel ought to have resolved the application before the appeal was determined, what Mr Cottom sought to rely on could not have altered the outcome of his appeal.

Did the appeal panel deal with Mr Cottom's application to rely on further documents?

I am satisfied that the appeal panel did not consider or resolve what lay in issue between the parties about Mr Cottom's application.

Mr Cottom's application

The form on which Mr Cottom's application was made was an application to admit late documents. It attached: 1. a 9 March 2022 letter from his solicitors, which explained his application, the appeal's unusual procedural history and sought the opportunity to make submissions about the application; 2. a February statement by Mr Cottom which explained the accident in which he had been injured and his recent medical history, which included a referral by his GP to Dr Kuru and the resulting investigations of his back problems, which he claimed were continuing and which he believed were related to his knee injury; and 3. 2021 and 2022 reports of Dr Sykes and the result of CT examinations of Mr Cottom's lumbar spine.
The application was opposed by the Race Club, which sought an opportunity to be heard on it.

What was before the panel?

The Workplace Injury Management and Workers Compensation Act requires that impairments which result from the same injury be assessed together, in order to assess the injured worker's degree of permanent impairment: s 322(2). Further, impairments resulting from more than one injury which arise out of the same incident must also to be assessed together: s 322(3).
This precludes referral of another medical dispute about a worker's degree of permanent impairment as the result of injury, if a medical dispute about that matter has already become the subject of a medical assessment and certificate: s 322A(3).
What was brought before the appeal panel as the result of Mr Cottom's appeal was the dispute referred to Dr Burns under s 321 of the Act. It concerned the injury to his right knee. Dr Burns explained his reasons for his conclusion that Mr Cottom's whole person impairment resulting from this injury had been 20%, he having considered the cases which the parties advanced about that injury and the documents he had to consider, as well as what his examination of Mr Cottom had disclosed.
The prescribed form for pursuing an appeal against such a medical assessment provides for alleged deterioration of the injury to be pursued, that being one of only four grounds of appeal which s 327(3) of the Act permits. But that was not relied on in Mr Cottom's appeal. What he there raised was additional relevant information, application of incorrect criteria and demonstrable error: s 327(3)(b)-(d).
Section 328(2) required the appeal panel to conduct Mr Cottom's appeal by way of review of Dr Burns' medical assessment, with its review being "limited to the grounds of appeal on which the appeal is made". But s 328(3) permitted a medical re-examination to be undertaken by one or more members of the panel. Further evidence could also be received on the appeal in specified circumstances: s 328(3).
It was in March 2022 that Mr Cottom made his application to admit late documents, which the insurer opposed, requesting a telephone conference to determine their admissibility. The Commission advised the parties that their correspondence and the documents would be referred to the panel, which would determine the appropriate steps to be taken. On the evidence members of an appeal panel access the appeal documents through a portal which the Commission operates. But the parties were not contacted by the panel before it gave its decision on the appeal.
After the panel's certificate and its reasons were provided, Mr Cottom enquired of the Commission whether his application to admit late documents had been provided to the panel to consider.
The Commission's advice was that it and the accompanying documents were accessible to the panel via the portal. But neither it nor the appeal panel gave him any advice about whether the panel members had become aware of the application or accessed it or the accompanying documents through the portal.
Certainly, the parties received no communication from the panel about Mr Cottom's application, the Race Club's opposition to it, or the opportunity it sought to be heard on the application.
I am satisfied that the proper inference to be drawn from all the evidence is thus that either the appeal panel was not made aware of the application which it needed to access through the portal in order to consider and resolve it, or that the application was overlooked by the panel.
That conclusion flows inevitably from the reasons which the panel gave for the conclusions which it reached about the appeal.
The result was a failure to consider or determine Mr Cottom's disputed application, the resolution of which depended on the statutory scheme, particularly s 328(3).

The appeal panel's reasons

There was no issue that the panel was obliged to give reasons for its decision. Those given did not deal with Mr Cottom's application to rely on further documents, or the dispute over that application.
In its reasons the panel explained the background to the appeal, without reference to Mr Cottom's application or the documents which accompanied it. The factual background given referred to the history of Mr Cottom's knee injury, medical examinations up to December 2015 and Dr Burns' 2020 medical assessment and certificate.
The panel decided that it was unnecessary for Mr Cottom to be further examined. That is consistent with it being unaware of his claimed deterioration, further injury and the application to rely on further documents. As is the panel's statement that it had "before it all the documents which were sent to the MA for the original medical assessment", which it had taken into account.
The panel did refer, under the heading "Fresh evidence", to s 328(3) and to Mr Cottom's supplementary statement of November 2020 in which he explained his concern that Dr Burns had not taken into account symptoms which he was then suffering. But it did not accept that Dr Burns had ignored what Mr Cottom had told him in the examination.
Under the heading "Discussion and Findings" the appeal panel dealt with the claimed failure by Dr Burns to adequately examine Mr Cottom, which it rejected as being bereft of factual foundation, given the opinions which Dr Burns had expressed, and the reasons given for the conclusions he reached. It determined that Mr Cottom's November 2020 supplementary statement was irrelevant, without which there was no basis for his second ground of appeal.
The November statement was not the one which accompanied Mr Cottom's application to rely on further documents. But the approach adopted to the consideration of what that statement contained is consistent with the panel being prepared to consider the additional material Mr Cottom sought to rely on, if his application and the further documents had come to its attention.
Of course, necessarily it first had to resolve what lay in issue between the parties about that application and those documents. That, it failed to do.
The panel also dealt with Mr Cottom's scarring, quoting from Dr Burns' certificate. It concluded that the determination which he had made about Mr Cottom's degree of permanent impairment was open, Dr Burns having had the considerable advantage of having seen Mr Cottom's scarring.

The failure to deal with Mr Cottom's application involved relevant error

Also, in in issue was whether the statutory scheme in fact required the disputed application to admit the further documents to be resolved by the panel, before it determined Mr Cottom's appeal.
In Sleiman v Gadalla Pty Ltd [2021] NSWCA 236 it was observed that there was a "safety valve" in the legislative scheme for the circumstance which had there arisen, provided by s 378. Namely, a deterioration which only came to light after an appeal had been determined: at [77]. That section permitted an application to an appeal panel for reconsideration of its decision in light of such a later deterioration.
Section 378 has since been repealed, removing this safety valve. That underscores the importance of the consideration and resolution of applications to rely on further evidence, before an appeal is determined, which s 328(3) permits.
In Mr Cottom's case the deterioration of his knee and further injury to his spine which he sought to advance by his application to rely on further evidence on his appeal, was advanced before the appeal panel made its decision.
It was s 328 which specified the procedure to be followed on that appeal. Section 328(3) provided that evidence "that is fresh evidence or evidence in addition to or in substitution for the evidence received in relation to the medical assessment appealed against may not be given on an appeal by a party to the appeal unless the evidence was not available to the party before that medical assessment and could not reasonably have been obtained by the party before that medical assessment".
Section 328(3) thus expressly provided for the application Mr Cottom made. So long as the documents he wished to rely on were not available or could not reasonably have been obtained before Dr Burns' assessment, he was entitled to rely on them on his appeal. The Race Club was of course entitled to be heard on that application, as it sought.
If the statutory criteria were satisfied, the relevance of those documents and what they established could also be put in issue before the panel and if raised by the Race Club, would also be for it to resolve.
Given the case which the Race Club advanced in these proceedings, it would have contended that those documents were not relevant to the grounds of appeal which Mr Cottom had advanced. That would have been disputed by Mr Cottom and would have been a matter for the panel to resolve.
True it is that Mr Cottom had not indicated in the appeal he had earlier filed, that he relied on deterioration in the condition of his knee. Logically, if the Race Club had contended that any of the further documents should not be received because a ground of deterioration had not been advanced, Mr Cottom is also likely to have sought to amend his grounds of appeal to include this claim.
It is difficult to see why such an amendment could not have been made or allowed. Particularly given that one ground of appeal which Mr Cottom had already advanced was additional information.
By his application Mr Cottom also sought to raise a further consequential impairment to his spine, which he claimed had also been caused by his original knee injury, but which had come to light only since Dr Burns had issued his certificate. He contended that was relevant to the assessment of his whole person impairment. The further information ground of his appeal appears to have made documents which evidenced such further injury relevant to the grounds of appeal which he had already advanced.
Resolution of the dispute over Mr Cottom's application would have required the appeal panel to take into account the requirements of s 322 earlier explained.
Under this statutory scheme, if the further information had been received, that could also have had an impact on the panel's decision about whether or not itself to examine Mr Cottom. That follows logically from the fact that Dr Burns had no reason to examine him for any resulting injury to his back.
In the result, that there was relevant error because of the panel's failure to consider Mr Cottom's application and what lay in issue between the parties over it, must be accepted.
Mr Cottom's application having been made as it was before the appeal was decided, given the provisions of s 328(3), it had to be considered and determined by the panel, there being an issue between the parties about the receipt of that further material, before the appeal was determined.
If there had been no issue between the parties about the receipt of the material, Mr Cottom would have been entitled to rely on it and the appeal panel would have had to consider the parties' submissions about what light it shed on the grounds of the appeal which he advanced. But the Race Club opposed its receipt.
If the Club contended, for example, that the evidence which Mr Cottom so sought to advance had been available at the time of his earlier medical assessment and so could not be advanced on the appeal, that had to be resolved by the panel before the appeal was determined.
If the material did fall within s 328(3), it only requiring that it was either not available to Mr Cottom before Dr Burns' assessment, or that it could not reasonably then have been obtained, he was entitled to rely on it and the panel had to consider it in determining his appeal.
In that event, the panel had to consider the cases which the parties advanced on the appeal, including in relation to taking that further evidence into account.

What is the consequence of the appeal panel's error?

It is not for this Court to determine what conclusion the panel would have reached in relation to Mr Cottom's application, had it and the Race Club's opposition to it been considered. But I am satisfied that there was a prospect that it might have succeeded, given what he sought to pursue.
As must the possibility that the appeal might then have taken a different course, an injury to Mr Cottom's spine then arising for consideration for the first time. That flows from the statutory requirement that not only all impairments which result from the same injury, but all impairments resulting from more than one injury arising out of the same incident, all be assessed together. That is required in order that the injured worker's resulting degree of permanent impairment is assessed at the one time.
The Race Club addressed in its submissions claimed deficiencies in Mr Cottom's statement and what it revealed about the deterioration of his knee and his claimed spinal impairment, as well as the limited medical investigation of the latter evidenced by the documents he sought to rely on. But on Mr Cottom's case that reflected the timing of what had occurred to him after Dr Burn's examination, as well as when medical appointments to investigate the condition of his spine, became available.
These were all arguments which were for the appeal panel to consider and in my view cannot be resolved on this application, especially given that Dr Burns had not had to consider any possible injury to Mr Cottom's spine.
I am thus also not satisfied that had the panel considered the parties' cases on Mr Cottom's disputed application, that it would have necessarily failed, given what is in issue about the matters on which the Race Club relied.
Mr Cottom's application not having been considered or resolved as it had to be, before the appeal was heard and determined by the panel, I am satisfied that justice requires that the orders sought must be made.

Costs

The usual order under the Uniform Civil Procedure Rules is that costs follow the event. In this case that is an order that Mr Cottom's costs, as agreed or assessed, be paid by the Club.
Unless the parties' approach to be heard within 14 days, that will be the Court's order.

Orders

For the reasons given: 1. Mr Cottom is given leave, nunc pro tunc, to file his summons out of time; 2. I declare that the appeal panel's 31 March 2022 decision, including the reasons given, are affected by error of law on the face of the record and by jurisdictional error; and 3. I now order that: 1. The appeal panel's 31 March 2022 decision is quashed; and 2. Mr Cottom's application to rely on further evidence and appeal be remitted to be dealt with according to law by a differently constituted appeal panel under the Workplace Injury Management and Workers Compensation Act 1998 (NSW).

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: 06 July 2023

At a glance

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Judgment (15 paragraphs)

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Legislation Cited (2)

Cases Cited (10)

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