Court of Appeal (WA)|2005-09-23|Before: Wheeler JA

Re Burvill; Ex Parte Bains Harding Industries Pty Ltd [2005] WASCA 181 (23 September 2005)

RE BURVILL; EX PARTE BAINS HARDING INDUSTRIES PTY LTD [2005] WASCA 181 (23 September 2005)

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

CITATION : RE BURVILL; EX PARTE BAINS HARDING INDUSTRIES PTY LTD [2005] WASCA 181

MATTER : Application for a Writ of Certiorari against Dr P W BURVILL, Dr C ZANETTI and Dr A HARPER as members of a Medical Assessment Panel constituted under the Workers' Compensation and Rehabilitation Act 1981

Workers' compensation - Jurisdiction of a review officer to refer a question to a medical assessment panel when medical evidence not in compliance with s 93D(5) and (6)

Workers' Compensation and Rehabilitation Act 1981 (WA), s 5, s 84ZH, s 84ZN, s 93D, s 145A

Department of Family & Children's Services v Furnace [2001] WASCA 285

R v Murray; Ex parte Proctor [1949] HCA 10; (1949) 77 CLR 387

Re Monger; Ex parte Dutch [2001] WASCA 220; (2001) 25 WAR 96

Re Monger; Ex parte United Construction Pty Ltd [2002] WASCA 253

Ansett Australia Ltd v Medical Assessment Panel (1998) 19 WAR 395

Clough Engineering v Thomas [2004] WASCA 36

Craig v State of South Australia [1995] HCA 58; (1995) 184 CLR 163

Palazzolo v Brown [2002] WASCA 49

R v Gillett; Ex parte Rusich [2001] WASCA 111

Re Alexeef; Ex parte Paul [2002] WASC 291

Re Babban; Ex parte Suleski [2001] WASCA 289

Re Croser; Ex parte Rutherford [2001] WASCA 422; (2001) 25 WAR 170

Re Knezevic; Ex parte Carter [2005] WASCA 139

Re Monger; Ex parte Cook's Construction Pty Ltd [2004] WASCA 165

Re Monger; Ex parte McLaughlin [2004] WASC 126

Re Wong; Ex parte Inghams Enterprises Pty Ltd [2004] WASCA 247

United Construction Pty Ltd v Maketic [2003] WASCA 138

Waterside Workers' Federation v Gilchrist, Watt & Sanderson [1924] HCA 61; (1924) 34 CLR 482

1 WHEELER JA: I have had the advantage of reading in draft the reasons for decision of McLure JA. I agree with those reasons and have nothing to add.

2 MCLURE JA: This is the return of an order nisi for a writ of certiorari against the members of a Medical Assessment Panel ("Panel") purportedly acting under Pt VII of the Workers' Compensation and Rehabilitation Act 1981 (WA) ("Act"). The applicant contends, firstly, that the Panel had no jurisdiction to answer the question referred to it by a review officer and, secondly, that the Panel's reasons are so deficient as to give rise to an error of law. The question referred to the Panel related to the extent of a work-related disability suffered by Mr N Siljanoski ("claimant"). The claimant, by his counsel, sought and obtained leave to appear in opposition to the application.

3 The claimant claimed to have suffered physical and psychiatric injuries as a result of an accident in the course of his employment with the applicant. Under Pt IV Div 2 of the Act, common law damages can only be awarded if it is agreed or determined that a claimant's degree of disability is not less than 30 per cent or not less than 16 per cent. In June 2003 the claimant, acting pursuant to s 93D(5) of the Act, lodged a Form 22 referring to the Director of Conciliation and Review ("Director") the question whether he had a degree of disability of not less than 30 per cent. The applicant disputed the claimant's claim that his degree of disability was not less than 30 per cent.

4 On or about 13 October 2003, the Director referred the question of the claimant's degree of disability to a review officer for resolution under the provisions of Pt IIIA of the Act.

5 At a directions hearing before Review Officer Whitford-Harvey ("the review officer") in April 2004 the applicant challenged the review officer's jurisdiction to hear and determine the claimant's application on the ground that the Form 22 had been improperly accepted by the Director contrary to s 93D(5) and (6) of the Act on the ground that the medical reports provided to the Director were not "medical evidence" of the kind required by the Act, relying on Re Monger; Ex parte Dutch [2001] WASCA 220; (2001) 25 WAR 96. The review officer determined that he had jurisdiction.

6 On or about 2 June 2004 the review officer referred the question of the degree of the claimant's psychiatric disability to the Panel. In written

reasons dated 29 June 2004 the Panel concluded that the claimant had a psychiatric disability of 40 per cent.

7 The review officer, without reference to a Panel, determined the extent of the complainant's physical disability. In August 2004, the review officer determined that the complainant's total degree of disability was not less than 30 per cent.

8 The applicant appealed the review officer's determination to the Compensation Magistrates Court under s 84ZN of the Act. One of the grounds of appeal was that the review officer erred in law in determining that the Director's referral of the application was valid and that he had jurisdiction. The applicant contended the review officer should have found that the medical evidence filed in support of the claimant's application was not medical evidence for the purposes of s 93D of the Act.

9 Prior to the hearing of the appeal, the claimant conceded that the review officer did not have jurisdiction. By his solicitors, he consented to orders in the appeal that it be allowed, that the review officer's determination be quashed and that his application under s 93D be dismissed for want of jurisdiction. The claimant has since filed another Form 22 with the Director.

10 The applicant contends in this Court that the review officer did not have jurisdiction to refer to the Panel the question relating to the claimant's psychiatric disability and, as a consequence, the Panel's decision is void and should be quashed. The claimant conceded that, if the applicant succeeds on the jurisdiction ground, the Court should make the order nisi absolute. The claimant did not resile from his concession that the review officer's determination of the degree of disability was beyond jurisdiction. However, the claimant contended that, notwithstanding a lack of jurisdiction, the review officer had the power to refer the question to the Panel.

11 Subsections (2) and (5) to (10) of s 93D are relevant to the question of jurisdiction. Subsection (2) details how the worker's degree of disability is to be assessed. Subsections (5) to (10) materially provide:

"(5) If the worker and the employer cannot agree on whether the degree of disability is not less than the relevant level, the worker may, subject to subsection (6), refer the question to the Director.

(6) A question can only be referred under subsection (5) if the worker produces to the Director medical evidence from a medical practitioner indicating that, in the medical practitioner's opinion, the degree of disability is not less than the relevant level.

(7) As soon as practicable after receiving a referral under subsection (5) the Director is to notify the employer in accordance with the regulations.

(8) If within 21 days after being notified under subsection (7) the employer notifies the Director in accordance with the regulations that the employer considers that the degree of disability is less than the relevant level, a dispute arises for the purposes of Part IIIA.

(9) The Director is to consider the dispute in consultation with the parties.

(10) Except in a case to which subsection (11) applies, if the dispute is not resolved by agreement the Director is to refer the question for resolution under the provisions of Part IIIA (other than Division 2)."

12 The Court in Dutch held that medical evidence which was not in compliance with subs (2) and (6) of s 93D did not confer any jurisdiction on the Director under s 93D(10) to refer the question of a worker's degree of disability to a review officer for determination. There was no challenge in this case to the correctness of Dutch which remains the law in this State: Re Monger; Ex parte United Construction Pty Ltd [2002] WASCA 253.

13 Dutch is also authority for the proposition that, if the Director had no jurisdiction to refer the dispute to a review officer, the review officer was without jurisdiction to conduct the review: Dutch at [85] per Malcolm CJ; Re Monger; Ex parte United Construction at [44] per Anderson J.

14 The question in this case is the validity of the review officer's referral to the Panel. A review officer's power to refer a question to a medical assessment Panel is contained in s 84ZH of the Act. It materially provides that, if permitted by s 145A to do so, a review officer may refer a question as to, inter alia, the degree of disability assessed in accordance with s 93D(2) for determination by a medical assessment panel. Section 145A relevantly requires a conflict of medical opinion on the question between a medical practitioner engaged by the worker and a medical practitioner provided and paid by the employer.

15 Section 93D(10) is the only avenue by which a dispute as to the degree of disability can get to the dispute resolution provisions in Pt III of the Act.

16 The claimant accepted that the Director did not have jurisdiction to refer the dispute as to whether the claimant had a degree of disability of not less than 30 per cent to the review officer and the review officer did not have jurisdiction to determine that dispute. As I understand the claimant's submission, it was to the effect that the referral to the Panel was valid because the review officer had jurisdiction to determine the validity of the referral from the Director and, hence, his own jurisdiction (see United Construction at [42] and [43]) and at the time the review officer referred the question to the Panel, he had yet to determine the question of jurisdiction.

17 As I understand the facts, the review officer expressly determined the question of jurisdiction before he made the referral to the Panel. In any event, as discussed below, the timing of the referral is not, in my view, determinative.

18 Whether or not the review officer had jurisdiction to make the referral to the Panel depends upon the correct characterisation of the statutory requirement for medical evidence that complies with subs (2) and (6) of s 93D. It is clear from Dutch (and United Construction) that compliant medical evidence is an essential preliminary or condition precedent to the jurisdiction of the Director and the review officer to proceed with the performance of their substantive powers: see, for example, R v Murray; Ex parte Proctor [1949] HCA 10; (1949) 77 CLR 387; The Laws of Australia, vol 2 [114], [120], [121] and [130]. That being the case, the jurisdiction of review officers to determine jurisdiction (which can only be provisional) should be exercised, expressly or impliedly, at the outset and before proceeding to exercise their substantive statutory powers.

19 It is incorrect to characterise a referral by a review officer to a Panel under s 84ZH of the Act as being relevantly related to a review officer's jurisdiction to determine the question of jurisdiction. A referral to a Panel can only be connected with the determination of the substantive dispute. The absence of a condition precedent to jurisdiction invalidates all exercises of substantive power, including the referral and the Panel's decision. In such circumstances, the timing or outcome of the review officer's consideration of jurisdiction cannot validate the exercise of substantive power. In any event, even if the review officer had not expressly determined that he had jurisdiction prior to the referral, the referral to the Panel is an implied decision by the review officer that he had jurisdiction to proceed: United Construction at [43] per Anderson J. Thus, the referral to the Panel, like the referral to the review officer, is invalid.

20 The claimant relied on the decision of this Court in Department of Family & Children's Services v Furnace [2001] WASCA 285. In that case, a dispute had arisen between a worker and an employer as to whether an injury sustained by the worker was caused or contributed to by his employment. The dispute was referred to the Director for conciliation under s 84N of the Act who made arrangements for a conciliation officer to conciliate the dispute (s 84O). The conciliation officer referred certain questions to a medical assessment panel pursuant to s 84R of the Act. The claimant relied on the case for the proposition that the only relevant limits to the referral power are those in s 84R (and by extension s 84ZH) and s 145A. The Court rejected the applicant's contention that a conciliation officer had no power to refer a matter to a medical assessment panel until it had been determined that a worker had a disability as defined in s 5 of the Act. However, there was no suggestion in Furnace (and in my preliminary view, no proper basis for one) that causation is an essential preliminary or condition precedent to proceeding with the exercise of powers leading to the determination of the matter.

21 For these reasons I would uphold the applicant's contention that the review officer had no jurisdiction to refer the question to the Panel and that, accordingly, the Panel's determination is invalid.

22 In the circumstances, it is unnecessary to address the adequacy of the Panel's reasons. However, I wish to comment on the claimant's suggestion that if the reasons were deficient, the Court should in the exercise of its discretion refuse certiorari and issue a writ of mandamus to the Panel requiring it to perform its duty to give reasons according to law. There are some obvious advantages in the same Panel being given the opportunity to provide fresh reasons (following certiorari) or supplementing their existing reasons (by recourse to mandamus).

However, as the matter was not fully argued before us, the appropriate course is to defer its consideration and determination to another time.

23 In conclusion, the order nisi should be made absolute and the decision of the Panel quashed on the return without further order of the Court.

24 PULLIN JA: I have read the reasons prepared by McLure JA. I agree with those reasons and have nothing to add.

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

CITATION : RE BURVILL; EX PARTE BAINS HARDING INDUSTRIES PTY LTD [2005] WASCA 181 (S)

Re Burvill; Ex parte Bains Harding Industries Pty Ltd [2005] WASCA 181

Corporate Affairs Commission v Bradley [1974] NSWLR 391

Knight & Anor v F P Special Assets Ltd [1992] HCA 28; (1992) 174 CLR 178

1 JUDGMENT OF THE COURT: These reasons concern the costs of the application in Re Burvill; Ex parte Bains Harding Industries Pty Ltd [2005] WASCA 181. In that case the Court ordered that the order nisi the subject of the application should be made absolute and the decision of a Medical Assessment Panel quashed.

2 The applicant seeks an order that Mr N Siljanoski ("claimant") pay the applicant's costs of the application to be taxed. The Panel's decision the subject of the application related to the extent of a work-related disability suffered by the claimant. The claimant, by his counsel, sought and obtained leave to make submissions in opposition to the application. He was not a party to the application but in effect an intervener.

3 We accept that this Court has the power to make the costs order sought by the applicant. The Court has an unfettered discretion in that regard. In O'Toole v Charles David Pty Ltd (1991) 171 CLR 232 the High Court said (at p 311) that it is only in special circumstances that it is appropriate for a Court to make an order for costs against an intervener or, at all events, an order which would have the result that an intervener pay to one of the parties more than the amount by which the costs of that party had been increased by the intervention.

4 Two issues were raised at the hearing. The first concerned the jurisdiction of a review officer to refer a question to a Panel and the second related to the adequacy of the Panel's reasons. If the claimant had not participated in the application, the Court would have sought assistance from a representative of the State Solicitor's Office as amicus curiae. The matters raised by the claimant would, in our assessment have been raised by, or with, the amicus. We are not persuaded that the length of the hearing was extended as a result of the claimant's participation.

5 In these circumstances, we would not in the exercise of our discretion order the claimant to pay the applicant's costs. We would make no order in relation to the costs of the application.

Compensation and Rehabilitation Act 1981

Department of Family & Children's Services v Furnace

At a glance

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Judgment (64 paragraphs)

Re Burvill; Ex Parte Bains Harding Industries Pty Ltd [2005] WASCA 181 (23 September 2005)

RE BURVILL; EX PARTE BAINS HARDING INDUSTRIES PTY LTD [2005] WASCA 181 (23 September 2005)

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Legislation Cited (1)

Cases Cited (8)