CSR Limited v Busbridge

1. On that basis, the plaintiff put to the delegate that "the workers earnings after the injury" - "E" in s 35(1) - was $1,413 per week. On no reasonable approach could this figure be described as his "current weekly earnings" or weekly earnings after injury. The very next payslip showed that in the week ending 6 July 2014, Mr Busbridge earned just $487.20. The delegate correctly approached the matter by reference to s 44I.
2. The plaintiff now contends that the delegate fell into jurisdictional error by failing to take into account the Job Markets Australia figure of $1,389 on the basis that this amount is "the greater amount" as between it and the current weekly earnings properly calculated.
3. It appears (from paragraphs 57-58 of her report) that the basis upon which the delegate disregarded the Job Markets Australia figure was that the AW Workwise report contained "vastly differing amounts". That was a reference to the variation between the Job Markets Australia figure ($1,389), the award wage ($760.20) and the local labour market average wage ($1,000). The plaintiff did not make any submission to the delegate as to how to reconcile those varying figures because it sought to rely on an actual pay period where Mr Busbridge earned more than $1,389 (ie $1,413).
4. The defendant's approach in this Court was to describe the Job Markets Australian figure as "meaningless". He argued that the Job Markets Australia figure was devoid of any real content because it referred to the earnings of a "production operator" in general terms without any reference to, or identification of, any industry that might be relevant to Mr Busbridge's history of employment and skills acquired in the particular industry in which he had worked for many years. The defendant argued that while such a generic approach might be applicable to a job such as a teacher or a nurse, it was unhelpful for a job where wages might vary greatly depending on the industry in which one worked. An analogy was drawn with a company director whose income earning capacity is entirely different depending on the industry, size of the company and other variables.
5. The defendant made no similar submission before the delegate which is unsurprising given that the decision he sought to have reviewed made no reference to the Job Markets Australia figure (although the original decision did). The form that the defendant filled out stated simply: "I think [the work capacity decision] should be changed to be increased to the difference between my AWE of $1,530-00 per week and my current wage (whatever that might be) as there is no evidence to suggest that I am able to earn more than I am currently earning. Also, due to being casual, any time off sick I do not get paid at all."
6. The delegate was placed in a difficult position in coming to a conclusion as to the worker's earnings after the injury ("E") for the purpose of s 35. Neither party addressed the Labour Market Analysis contained in Appendix 1 of the AW Workwise reports or contended that it was relevant. The unrepresented worker left an assessment of his weekly earnings after injury to the delegate, ("whatever that may be"). The employer, at [2.4] of the decision subject to the merits review before the delegate and in its reply to the merits review stated that the worker was "capable of securing alternative employment and [had] demonstrated a capacity to earn up to and at least $1,413 gross per week". That figure was based on a single pay period during which the worker had made $1,413 and was not representative of his average earnings. Neither party made reference to, or relied upon, the Job Markets Australia figure of $1,389 per week figure or explained how it did (or did not) come within the terms of s 35(1)E(a) as an "amount the worker is able to earn in suitable employment."
7. The delegate was aware of the Job Markets Australia figure but concluded that it was difficult to use that figure in view of the "vastly differing amounts" in the same report concerning the average wage and local labour market. The plaintiff now says that the average wage was irrelevant altogether and that the local labour market was not relevant because the definition of suitable employment in s 32A excludes consideration of the worker's place of residence. In many, if not most circumstances that submission may be correct but there is a real difficulty in asserting jurisdictional error on the part of the delegate in circumstances where the Job Markets Australia figure was not referred to in the letter of 30 July 2014 notifying Mr Busbridge of the result of its internal review or in its reply to the application for a merit review dated 29 August 2014. On each occasion the plaintiff relied on the single pay slip for 8 June 2014. Its initial decision (dated 10 June 2014) was based on the Job Markets Australia figure but by the time the matter went to the delegate it appeared to have abandoned its reliance on that figure. No explanation for this was provided to the delegate and there was no reference to the Job Markets Australia figure.

Ground one

1. Under ground 1, the plaintiff contends that the delegate "misunderstood the statutory test to be applied in assessing weekly payments", "erred as to her jurisdiction", "misconceived the task" she had to perform "and/or" failed to take into account a relevant consideration.
2. The starting point for a consideration of this ground is the recognition that not all factual or legal errors give rise to an appropriate case for judicial review. The Workers Compensation scheme, and the legislative framework under which it operates casts the responsibility of the merits review of the employer's decision upon the WorkCover Authority and not on this Court. It is not appropriate to parse the language of the delegate or examine her reasons with a critical eye attuned to error: see, for example, Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; 185 CLR 259 at 271-272, Collector of Customs v Pozzolanic Enterprises Pty Ltd [1993] FCA 456; 43 FCR 280 at 287.
3. In Minister for Immigration and Ethnic Affairs v Wu Shan Liang at 271-272: "When the Full Court referred to "beneficial construction", it sought to adopt an approach mandated by a long series of cases, the best exemplar of which is Collector of Customs v Pozzolanic. In that case, a full Court of the Federal Court (Neaves, French and Cooper JJ) collected authorities for various propositions as to the practical restraints of judicial review. It was said that a court should not be 'concerned with looseness in the language ... nor with unhappy phrasing' of the reasons of an administrative decision-maker. The Court continued: 'The reasons for the decision under review are not to be construed minutely and finely with an eye keenly attuned to the perception of error'. These propositions are well settled. They recognise the reality that the reasons of an administrative decision-maker are meant to inform and not to be scrutinised upon over-zealous judicial review by seeking to discern whether some inadequacy may be gleaned from the way in which the reasons are expressed. In the present context, any court reviewing a decision upon refugee status must beware of turning a review of the reasons of the decision-maker upon proper principles into a reconsideration of the merits of the decision. This has been made clear many times in this Court. For example, it was said by Brennan J in Attorney-General (NSW) v Quin: 'The duty and jurisdiction of the court to review administrative action do not go beyond the declaration and enforcing of the law which determines the limits and governs the exercise of the repository's power. If, in so doing, the court avoids administrative injustice or error, so be it; but the court has no jurisdiction simply to cure administrative injustice or error. The merits of administrative action, to the extent that they can be distinguished from legality, are for the repository of the relevant power and, subject to political control, for the repository alone.'"
4. See also, for example, Muralidharan v Minister for Immigration & Ethnic Affairs (1996) 136 ALR 84 at 94-95 (Sackville J), Bojko v ICM Property Service Pty Ltd [2009] NSWCA 175 at [36] (Handley AJA), Campbelltown City Council v Vegan [2006] NSWCA 284; 67 NSWLR 372 at [121]-[122] (Basten JA).
5. However, there are limits to the proposition that an administrative decision maker's reasons should be construed beneficially. Stone J in SZCBT v Minister for Immigration and Multicultrual Affairs [2007] FCA 9 at [26] said: "The Minister urged a 'beneficial' construction of the Tribunal's reasons and referred to comments made in Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259, in particular at 271-272. The phrase 'beneficial construction', as used in Wu Shan Liang has a specific meaning, and was certainly not intended to mean that any ambiguity in the Tribunal's reasons be resolved in the Tribunal's favour. Rather, the construction of the Tribunal's reasons should be beneficial in the sense that the Tribunal's reasons would not be over-zealously scrutinised, with an eye attuned to error. In this sense a 'beneficial' approach to the Tribunal's reasons does not require this Court to assume that a vital issue was addressed when there is no evidence of this and, indeed, the general thrust of the Tribunal's comments suggest that the issue was overlooked."
6. Further, while to "fulfil a minimum legal standard, the reasons need not be extensive", "where more than one conclusion is open, it will be necessary for the [decision maker] to give some explanation of its preference for one conclusion over another": Campbelltown City Counsel v Vegan (supra) at [121]-[122] (Basten JA).
7. On a fair reading of the delegate's reasons, she was keenly aware of the statutory requirements of her jurisdiction. The "consideration" that the plaintiff contends that the delegate failed to take into account was the Job Markets Australia wage for Production Operator. It was submitted that the amount was "taken to be capable of earning as a Production Operator … was a mandatory consideration" as a matter of statutory construction. The distinction between a relevant consideration for judicial review purposes and relevant material was emphasised by Gleeson JA in Rodger v De Gelder [2015] NSWCA 211 at [84]-[86]. In spite of the fact that neither party sought to draw her attention to the Job Markets Australia wage (or even refer to it) the delegate did make reference to it and explained her reason for concluding that it should not be used in the calculus. Those reasons were not irrational or unreasonable.
8. While a different decision maker may have taken a different approach, the fact that the delegate did not simply find the highest possible wage, having correctly (if implicitly) dismissed the plaintiff's urging to take into account the amount that the defendant earned in a single pay period, did not constitute a misconception of her task or a failure to exercise her jurisdiction lawfully.
9. Insofar as there was more than one conclusion open on the evidence, the decision maker explained her reasons for preferring the actual weekly earnings. Again, it would have been open to the delegate to come to a different conclusion, but the decision that she made was within her jurisdiction. In circumstances where the plaintiff had not contended that the Job Markets Australia figure should be used, even in the alternative, I am unable to conclude that the delegate failed lawfully to exercise the jurisdiction.
10. I would reject ground 1.

Ground two

1. The plaintiff contends that the references that the delegate made to the award wage and the local labour market wage meant that she took into account irrelevant considerations. That assertion may have had more substance if the delegate had settled on, or used, either of those figures directly in calculating the rate of weekly payments. However, her use of those figures was simply to highlight the anomaly, or as she put it the "vastly differing amounts" in the AW Workwise report. It raised a question in her mind as to the validity of the Job Markets Australia wage and its applicability as "an amount the worker was able to earn in suitable employment" (my emphasis).
2. Taking these figures into account in this way did not amount to a jurisdictional error. The delegate's reasons were transparent and the figure that she used as "E" in the equation was a figure contemplated by the terms of s 35(1)E(b).
3. I would reject ground 2.

Ground three

1. The third ground of appeal asserts that the plaintiff was denied procedural fairness and/or that the delegate failed to comply with procedures mandated by the Guidelines for Work Capacity Decision, Internal Reviews by Insurers and Merit Reviews by the Authority ("the Guidelines"). The Guidelines are delegated legislation issued pursuant to s 44(1) of the Act and s 376(1) of the Workplace Injury Management and Workers Compensation Act 1988 (NSW).
2. Guideline 10.6 allows a "Merit Reviewer" (such as the delegate in this case) to determine their own procedures and provides that the rules of evidence do not apply. However, the guideline provides that the merits review is subject to the requirements of procedural fairness. To a substantial degree the content of procedural fairness is defined by the Guidelines. The plaintiff relies on 10.2 and 10.7 in particular: "Acknowledgement of insurer's reply 10.2 The Authority will write to the worker and insurer as soon as practicable and preferably within 7-days of receiving the reply from the insurer to acknowledge receipt of the reply and to: 10.2.1 advise whether any further information is required from either of the parties for the purposes of the review; and 10.2.2 confirm that a review of a work capacity decision does not operate to stay the decision or otherwise prevent the taking of action based on the decision." "Merit Reviewer and findings - Section 44(3)(e) 1987 Act 10.7 The Merit Reviewer is to take such measures as are reasonably practicable to ensure that the parties understand the nature of the application, the issues to be considered and the role of the Reviewer as an independent decision-maker, and that the parties have had an opportunity to have their submissions and any relevant documents or information considered"
3. The plaintiff submits that the delegate breached these guidelines and in so doing breached the requirement for procedural fairness by denying the plaintiff the opportunity to be heard. The amended summons asserted that once the delegate determined that she should assess the weekly earnings in the way that she did "the second defendant should have alerted the parties to the perceived deficiency in the evidence, because it was an issue identified by the second defendant on the review, and allowed the parties to make submissions on the question or provide further evidence." Alternatively, "the second defendant should have requested further evidence pursuant to clause 10.2.1 of the Guidelines."
4. The plaintiff submitted in writing that "procedural fairness and the delegated legislation required the [delegate] to alert the parties (and in particular the insurer) to the issue that it had identified and to the deficiency or ambiguity in the evidence, or to request further information in order to resolve that issue, and to make an assessment." In the alternative, given her inquisitorial powers, the delegate should have obtained evidence herself (and provided it to the parties for comment), or requested further evidence from the parties (and allowed the parties to comment).
5. The defendant submitted that the delegate did not identify any deficiency in the evidence. Rather, she concluded that part of the evidence was not probative and "in broad terms accepted the approach argued for by Mr Busbridge." (The defendant also submitted that "CSR saw fit to first rely upon and then argue on the basis of the limited material contained in the AW Workwise report." That is not correct. CSR did not rely on the amounts referred to in the annexure to the AW Workwise report. Rather, it relied on the actual earnings of the defendant in the week ending 8 June 2014.)
6. I am unable to accept, in the circumstances of this case, that clause 10.2 made it mandatory (or "required") the delegate to seek further evidence or further submissions from the parties or that she ought to have embarked on an evidence gathering exercise of her own. The evidence was not ambiguous and nor were the submissions of the parties. There is no suggestion that "any further information is required from either of the parties" in order for the delegate to undertake the review. There is nothing to suggest that the plaintiff did not understand the process or was denied the opportunity to be heard. The form of "reply to an application for merit review" included in part 3 the opportunity for "RESPONSE TO THE WORKER'S APPLICATION" which was explained as follows: "Now that you have received the worker's application, outline your response to the request that the decision(s) should be changed, as clearly as you can. Tell us what you want. Outline your reasons for any opposing view, and what you base it on. You can refer to and attach new information."
7. This was an opportunity for the plaintiff to put its case, including an alternative case based on the annexures to the AW Workwise reports including the Job Markets Australia figure of $1,389. Its reply was as follows: "CSR Limited maintain their current decision that the worker has full capacity for work and therefore his entitlement to weekly compensation is nil. The reasons to maintain the decision are as follows: (a) The worker is certified for normal hours with the restriction or, 'avoid all contact with products involved in cement manufacture'. (b) The vocational assessment with AW Workwise of 16/05/2013 assessed the worker as having capacity to return to pre-injury duties as a production operator provided he is not exposed to cement dust, that the worker has 17 years of experience in the industry and therefore has extensive knowledge and transferrable skills to obtain employment as a production operator, warehouse administrator and production manager with a different employer. (c) The worker has been employed with BDS Recruitment Regional Pty Ltd, working for Allied Mills as an Assistant level 1 on casual basis since 29/10/2013 and working more than 15 hours per week. He has been able to sustain this employment for the last ten months. (d) The worker was paid weekly compensation for more than 52 weeks, therefore his current AWE is calculated to be $1,464.70 gross per week. It is noted that in week ending 08/06/2014, the worker earned $1,413 per week in his current employment. (e) The Nominated Treating Doctor, confirms that the worker can work in any position provided that contact with concrete dust is avoided. (f) The worker has not submitted any additional documents to support his request for further review. As a result of the above information, CSR Limited do not accept that the worker has an entitlement to ongoing weekly benefits for the following reasons: - The only restrictions on the worker's capacity is to avoid cement based products - The worker has been assessed as having extensive knowledge, experience and transferable skills to maintain his current employment - The worker has demonstrated that he is capable of earning up to and at least $1,413 per week - The worker has been able to maintain his current employment with BDS Recruitment Regional Pty Ltd, working for Allied Mills as a Mills Assistant Level 1 for the last 10 months - As of 30 July 2014, AW Workwise advise that there are approximately 2,235 Production Operator positions within Sydney region of which the vast majority will be environmentally suited for the worker - There is no current medical information that support the workers absence from work due to his work-related condition - The worker has not submitted any additional information to support his request for review for our work capacity decision."
8. The plaintiff had the opportunity to put its case before the delegate. It elected not to place any reliance on the Job Markets Australia figure but to rely on the higher figure that it suggested, based on a single pay slip, that the plaintiff was earning in suitable employment. As Gleeson JA said in Jamal v Director of Public Prosecutions [2013] NSWCA 355 at [39]: "The obligation of procedural fairness is concerned with providing a person whose rights are potentially affected in a matter with the opportunity to deal with relevant issues. However, a party's failure to make proper use of that opportunity cannot be used to support the claim of procedural unfairness: Victims Compensation Fund Corporation v Nguyen [2001] NSWCA 264; (2001) 52 NSWLR 213 at 219 [37] per Mason P."
9. Similarly, in Allesch v Maunz [2000] HCA 40; 203 CLR 172 Kirby J said at [38]: "Sometimes, through stubbornness, confusion, misunderstanding, fear or other emotions, a party may not take advantage of the opportunity to be heard, although such opportunity is provided. Affording the opportunity is all that the law and principle require.
10. Similarly, procedural fairness does not require a decision maker to disclose what she is minded to decide or to invite comment on her process of reasoning: see, for example, Hoffmann-La Roche v Trade Secretary [1975] AC 295 at 369, Re Minister for Immigration and Multicultural Affairs and Anor; Ex Parte Miah [2001] HCA 22; 206 CLR 57 at [31], Sinnathamby v Minister for Immigration (1986) 86 ALR 502 at 506, Ansett v Minister (1987) 72 ALR 469 at 499, Asiamet (No 1) v Federal Commissioner of Taxation [2003] FCA 35 196 ALR 692. In Asiamet Emmett J explained at [79]: "79. A person who would be affected by the exercise of a statutory power is entitled to rebut or qualify further information, and comment by way of submission upon adverse material, from other sources that is before the decision-maker. A decision-maker is required to identify to the person affected any issue critical to the decision that is not apparent from its nature or the terms of the statute under which it is made. The decision-maker is required to advise of any adverse conclusion that has been arrived at, which would not obviously be open on known material. Subject to those qualifications, however, a decision-maker is not obliged to expose his or her mental processes or provisional views for comment before making the decision in question (Commissioner for ACT Revenue v Alphaone Pty Ltd [1994] FCA 1074; (1994) 49 FCR 576 at 591-592 (`Alphaone Case')). Nor is there any duty to disclose draft or preliminary views. Within the bounds of rationality, a decision-maker is generally not obliged to invite comment on the evaluation of the subject's case. It is only if the decision-maker proposes to reach an adverse conclusion that is not an obvious and natural evaluation of the material supplied by the applicant, that the applicant is entitled to be told of the tentative conclusion (Alphaone Case at 591)."
11. In the present case, no additional material came before the delegate and the adverse conclusion that she reached was not one that was not obviously open on the known material. It was in effect the conclusion to which the defendant invited the delegate to come and in relation to which the plaintiff was given the opportunity to respond. The delegate was not required to disclose her mental processes or provisional views for the comment of the parties.
12. I would reject ground 3.

Orders

1. None of the grounds for review are established. Accordingly I make the following orders: 1. The summons is dismissed. 2. The plaintiff to pay the first defendant's costs of the proceedings.

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: 10 September 2015