MATTER : An application for Writ of Certiorari and a Writ of Mandamus, alternatively a Writ of Prohibition against ROSS MONGER, DIRECTOR OF THE CONCILIATION & REVIEW DIRECTORATE constituted under the Workers' Compensation and Rehabilitation Act 1981

Practice and procedure - Workers' compensation - Application of O 56 r 11(1) to decisions of Director of the Conciliation and Review Directorate - Director's decision a "proceeding" under O 56 r 11(1) - Office of Director a "tribunal" under O 56 r 11(1)

Practice and procedure - Prerogative writs - O56 r 1(1) - Application for prerogative writ commenced at time of filing notwithstanding later filing of supporting affidavit

Workers' Compensation and Rehabilitation Act 1981

Rules of the Supreme Court, O 56 r 11(1), O 56 r 1(1)

Grassby v The Queen [1989] HCA 45; (1989) 168 CLR 1

Hot Holdings Pty Ltd v Creasy (1996) 185 CLR 149

McNair v Press Offshore Ltd (1997) 17 WAR 191

R v Criminal Injuries Compensation Board; Ex parte Lain [1967] 2 QB 864

1 OWEN J: This is an application for the determination of two preliminary issues arising from an application for writs of certiorari, mandamus and prohibition against the Director of the Conciliation and Review Directorate ("the Director"). In relation to the writ of certiorari, the applicant seeks orders quashing a series of decisions made by the Director. The main focus of the applicant's attack is on the Director's initial decision to accept an "application" made by Alfred Dutch ("Dutch") dated 14 December 1999 on the grounds that it did not comply with s 93D of the Workers' Compensation & Rehabilitation Act 1981 ("the Act").

2 Dutch was employed by the applicant. He alleges that he suffered injuries to his knees in a series of incidents occurring in the course of his employment. He commenced proceedings in the Conciliation and Review Directorate in order to have his relevant degree of disability assessed for the purpose of s 93D of the Act.

3 The applicant and Dutch were unable to agree on whether the worker's degree of disability exceeded the relevant level, namely 16 per cent. Dutch completed a Form 22, which is dated 14 December 1999, referring to the Director the question of his degree of disability. In the form he claimed that his degree of disability, as assessed by a medical practitioner, was 25 per cent. The Form 22 was accompanied by a letter from a medical practitioner stating:

"Having assessed Mr Dutch last in July 1999 - as a result of injuries at work ... I believe he has a degree of permanent disability in the whole body of 25% as a direct result of those injuries. This takes into account both his physical and psychological disability."

4 On 30 December 1999 the Director signed a Form 23, giving notice that the question of the degree of disability had been referred to him for consideration. It is the decision of the Director to accept the referral that is the subject of the application for prerogative relief.

5 On 4 July 2000 (slightly more than six months after the decision to accept the referral) the applicant filed the application for prerogative writs. It was not accompanied by an affidavit. However, a supporting affidavit was filed on 4 August 2000.

6 I need now to refer to s 93D. The first four subsections of s 93D set out the definition of the term "relevant level" in relation to a degree of disability and then set out various formulae for the assessment. Section 93D then continues:

"(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).

(11) If the dispute relates to a disability mentioned in section 33, 34 or 35, the dispute is to be referred to a medical panel for determination as described in section 36 and so far as applicable this Act applies in relation to the reference as if it were a reference under section 36 except that the only question to be considered and determined on the reference is the question that was referred.

(12) Unless notification is given by the employer under subsection (8), the employer is to be regarded as having agreed that the degree of disability is not less than the relevant level."

7 The gravamen of the applicant's complaint is that the referral by Dutch to the Director of the question of the degree of disability was not capable of being accepted by the Director because there was no "medical evidence" of the type envisaged by s 93D(6). In particular, the letter from the medical practitioner contained no clinical findings and it gave no indication that the medical practitioner had made an assessment in accordance with the methods contained in s 93D.

8 The applicant has requested that, before the application for an order nisi is heard, the Court deal with two preliminary issues:

1. Does the time limit of six months in O 56 r 11(1) of the Rules of the Supreme Court apply to decisions of the Director?

2. For the purpose of determining whether the application was made within time, is it instigated when the application is filed or when the supporting affidavit is lodged?

9 For the purpose of deciding these issues I will assume that a decision of the Director under s 93D (5) and s 93D (6) to accept a referral is a decision of a type that would ordinarily be subject to review by prerogative writ.

Does O 56 r 11(1) apply to the Director's decisions?

10 The first of the preliminary issues that I have been asked to determine is whether O 56 r 11(1) of the Rules of the Supreme Court applies to decisions made by the Director. Order 56 rule 11(1) provides as follows:

"An order nisi for a writ of certiorari to remove a judgment, order, conviction or other proceeding of an inferior court or tribunal, or of a magistrate or justices, for the purpose of its being quashed, shall not be granted unless the application for the order is made within 6 months after the date of the judgment, order, conviction, or other proceeding, or within such other period as may be prescribed by any enactment, or except where a period is so prescribed, the delay is accounted for to the satisfaction of the court to which the application is made."

11 Counsel for the applicant submitted that the time limit provided for in O 56 r 11(1) did not apply for two reasons. First, it was not a "judgment, order or conviction or other proceeding". Secondly, the Director was not "an inferior court or tribunal, or ... a magistrate or justice [...]".

12 I agree that the decision of the Director is not a "judgment, order or conviction." Counsel for the applicant argued that it did not fit within the phrase "other proceeding". In one sense the referral of a question to the Director, under s 93D(5) and s 93D(6), is simply the initiating step of a dispute resolution process. It is not until the employer notifies the Director that it considers the worker's degree of disability to be less than the relevant level, pursuant to s 93D(8), that "a dispute arises for the purposes of Part IIIA". The next step, if the dispute is not resolved by agreement, is for the Director to refer the question for resolution under Pt IIIA: s 93D(10). Strictly speaking, therefore, a "dispute" in relation to matters dealt with in s 93D(5) to s 93D(10) did not arise until after the Director's decision to accept the referral made by Dutch under s 93D(5). Counsel then submitted that regard should be had to s 84B, which provides that "proceedings for the resolution of a dispute are not capable of being brought other than under Part IIIA". Counsel reasoned that it would follow that the Director's decision to accept the referral was made prior to the commencement of a "proceeding" for the resolution of the dispute and was, consequently, not itself a "proceeding".

13 In my view, however, the impugned decision can properly be characterised as a "proceeding" as that term is used in O 56 r 11(1). The fact that there is a "proceeding" for the purposes of s 84B does not, in my view, impinge upon the broad nature of the process upon which the parties and the Director embark in accordance with s 93D(5) to s 93D(10). That process falls outside Pt IIIA and the narrower use of the word "proceeding" in s 84B is not directly applicable. Regard must then be had to the normal use of language and the ordinary meaning of the word "proceeding" in O 56 r 11(1). One of the meanings ascribed to the word "proceeding" in The New Shorter Oxford English Dictionary is: "a step taken by a party in a case". Here, that which occurs under s 93D(5) to s 93D(10) may properly be regarded as a step in a process that may lead to an agreement or, if not to an agreement, to a "proceeding" under Pt IIIA. Either way, it could properly be regarded as "a step taken by a party in a case".

14 If the meaning of the word "proceeding" in O 56 r 11(1) is construed ejusdem generis with the words or phrases that go before it, at first glance a more restrictive interpretation of the word would be justified. However, when regard is had to the purpose of the rule, namely to facilitate certainty and finality in the decision-making process, a broader interpretation of the words is warranted.

15 In relation to the second of the applicant's submissions why O 56 r 11(1) should not apply, there can be no doubt that the Director is not an "inferior court", nor is he "a magistrate or justice". But is it appropriate to describe the office of the Director as a "tribunal" for these purposes? I think it is.

16 Counsel for the applicant submitted that O 56 r 11(1) applies only to a body exercising judicial power and not to an administrative decision-maker. In support of the submission reference was made to Re Smith; Ex parte Rundle (1992) 5 WAR 295, where Malcolm CJ, at 319, said of O 56 r 11(1) (wrongly described in the report as O 65 r 11):

"In my opinion it is, at least, extremely doubtful whether the rule applies to decisions of bodies or persons other than inferior courts or statutory tribunals. If it does not, the rule would not apply to a decision such as that made by the minister in the present case. Even if the rule does not apply, however, the nature of the remedy of certiorari is such that the court would require it to be sought promptly."

17 In my view, the office of Director can properly be described as a "statutory tribunal" within that dicta. Section 104A(1) and s 104B(1) of the Act provide:

"s 104A(1) There is to be established a Conciliation and Review Directorate consisting of the Director of Conciliation and Review, and such conciliation officers, review officers, and other staff as are required for the performance of the functions given by this Act to those officers.

s 104B(1) The Director is the principal officer of the Directorate and is responsible to the Executive Director in administrative matters concerning the Directorate but in matters concerning the resolution of disputes the Director is responsible directly to the Minister."

18 This language, it seems to me, constitutes the Directorate, of which the Director is a part, as an organ or entity with particular roles and functions which derive their existence and scope purely from the statute.

19 If it is necessary to find some judicial aspect to the role of the decision-maker before O 56 r 11(1) can apply, the decision of Miller J in Re Monger; Ex parte Ivey [1999] WASC 250 is instructive. At [22] and [23] his Honour rejected the contention that the function of the Director was purely administrative. Miller J decided that the Director is required to consider the medical evidence attached to a Form 22 and ascertain whether it indicated a degree of disability exceeding the relevant level. If it did, the Director is required to notify the employer in accordance with s 93D(7). It seems to me that these determinations take the matter beyond something that is purely administrative and place it in the realms of the quasi-judicial.

20 For those reasons it seems to me that the proper construction of the rules is that the time limit of six months set by O 56 r 11(1) applies to a decision of the type under consideration in this case.

When is the application said to be instigated?

21 The second preliminary issue requires the Court to decide precisely when the application for certiorari was instigated. The application for a writ of certiorari quashing the Director's decision was filed on 4 July 2000. The affidavit in support of the application was not filed until 4 August 2000. Order 56 r 1(1) states that an application for a writ of certiorari or mandamus must be supported by affidavit. I must decide whether the application was initiated on the date of its filing or whether, by virtue of O 56 r 1(1), the application was initiated on the date the supporting affidavit was filed.

22 It seems to me that the application is commenced when the application is filed. For these purposes I think the summary judgment rule, O 14, provides a useful analogy. Order 14 r 2(1) provides that an "application [for summary judgment] shall be by summons supported by affidavit verifying the facts ... and stating that in the deponents belief there is no defence to that claim ... ". In Lill v Merchant Capital (WA) Ltd (1995) 15 WAR 536 an application for summary judgment was made but the supporting affidavit did not contain a statement to the effect that there was, in the deponent's belief, no defence to the claim. Ipp J decided, at 550, that the jurisdiction of the Court to grant summary judgment was not dependent on strict compliance with O 14 r 2(1). If the affidavit did not comply with the rule, the application would ordinarily be dismissed but that consequence did not inevitably follow. It all depended on the circumstances. Rowland J expressed a contrary view on that issue. Franklyn J expressed some reservation about the point but did not indicate a final view. In Hillboi Nominees Pty Ltd v Evenwood Pty Ltd [2000] WASCA 66 at [81] the Full Court expressly approved the approach of Ipp J on this issue.

23 Order 56 r 1(1) provides that an application for a writ of certiorari "may be made ex parte and must be supported by affidavit". The word "must" is, I think, to the same effect as the word "shall" in O 14 r 2(1). Interestingly, neither O 58 (proceedings by originating summons) nor O 59 (proceedings in chambers) mention affidavits in the context of the originating process. Nonetheless, it seems to me that the failure to file an affidavit at the same time as the originating process seeking prerogative relief is, because of the wording of O 56 r 1(1), a procedural defect. However, arguing by analogy from Lill and Hillboi, it is not a defect that goes to jurisdiction. In other words, once the originating process is filed, the jurisdiction of the Court is enlivened. It seems to me, therefore, that it is the filing of the originating process that should be seen as the operative date from which to assess whether or not the application was made within time. It is hard to imagine that an order nisi even, let alone an order absolute, would ever be granted without a supporting affidavit. This is because the discretion that lies in the Court to grant the order nisi can only be exercised judicially and it is hard to image how the discretion could be exercised judicially in the absence of an affidavit. The fact that an affidavit was not filed at the same time may have other consequences but it does not go to jurisdiction.

24 The failure of a party promptly to file and serve the supporting affidavit could have consequences for the proper and efficient progress of the litigation. Accordingly, this decision should not be seen as an encouragement to practitioners to do other than adopt the normal practice, namely, to file a proper and full affidavit along with the originating process: see Lill per Rowland J at 539.

25 On the other hand, the need to look at the circumstances of each case is highlighted by the peculiar situation in which this application was commenced. It is in the nature of a "test case". I am aware that something in excess of 100 applications were filed at or about the same time, all raising the same or similar issues. The desire of the several applicants to avoid the costs of preparing and filing an affidavit in each application, at least at the outset, is understandable.

1. Order 56 r 11(1) applies to each of the decisions referred to in par 2 of the application dated 3 July 2000 for a writ of certiorari.

2. The application for a writ of certiorari was regularly commenced when the application was filed on 4 July 2000 even though a supporting affidavit was not filed until 4 August 2000.