The first defendant was employed by the plaintiff. He suffered an injury at work on 25 March 2009. He was carrying a 25kg bag on his left shoulder. After carrying it for about a minute he noticed pain in the left side of his neck going down to his left arm. There was associated swelling over the top of the left shoulder. The plaintiff continued to have pain and discomfort for which he was treated but without much success. He eventually underwent a spinal fusion at C4/5 and C5/6 levels. That operation relieved much of the pain in his left arm and numbness on the left side. It also improved, but did not completely relieve, the pain in the neck. He subsequently had a C3/4 fusion on 4 April 2014.
There was a medical dispute between the first defendant and the plaintiff, including a dispute with respect to permanent impairment and the amount of any deduction for a pre-existing condition.
That led to an examination by an assessor at the Worker's Compensation Commission, Dr Ho (the AMS). The AMS assessed the first defendant as having a 28% whole person impairment. The assessment was dated 28 June 2017.
The plaintiff filed an appeal against the certificate of the AMS. The grounds of appeal were these:
(1) The assessment was made on the basis of incorrect criteria;
(2) The medical assessment certificate contains a demonstrable error.
When completing the application to appeal, the plaintiff's lawyers answered in the affirmative to the following questions:
4.2 Are submissions attached detailing the grounds of the appeal?
4.3 Do you request that the worker be re-examined by an AMS who is a member of the Appeal Panel?
4.4 Do you request the opportunity to present oral submissions to the Appeal Panel?
The appellant's submissions to the Appeal Panel relevantly said this:
3. The Appellant says, firstly, that it is not appropriate to refer the matter for further Assessment as an alternative to the Appeal and also says that the issue as to whether the worker should be reassessed by the Appeal Panel is an issue which should be addressed at the oral hearing which is sought by the Appellant. The Appeal does not raise any threshold issues, save to the extent set out in these Submissions.
4. The Appellant is of the view that this Appeal cannot be determined "on the papers" and rather is a matter in which an oral hearing before an Appeal Panel is required. Such an oral hearing is necessary to address the inconsistencies between the views expressed by the Approved Medical Specialist and medical evidence admitted in the proceedings and to properly address the significance of the substantial pre-existing pathology, the fact of that pre-existing condition having been the subject of the treatment and the impact of these various matters on the assessment of impairment and on the deduction for pre-existing abnormality. In the view of the Appellant such matters cannot properly be traversed or articulated by written submissions alone.
…
6. …
(d) The AMS has indicated that he bases his assessment on matters including a detailed history taken (see paragraph 9) but in doing so he has failed to have regard to the clear and demonstrable inaccuracy in the history provided to him. In this regard the AMS has recorded in the history at the top of page 3 that the Claimant "declined any previous or subsequent accidents, injuries or condition". …
In the Opposition notice to the appeal against the decision of the AMS, the first defendant indicated in answer to question 2.3 that the appeal could be decided by the Appeal Panel solely on the basis of the written application and any written notice of opposition lodged.
On 13 September 2017 the appeal was referred by a delegate of the Registrar to an appeal panel. That decision noted that the plaintiff had requested an oral hearing which the first defendant opposed. It also noted that the Appeal Panel might also require the worker to be re-examined by the Appeal Panel. The Registrar was satisfied that a ground of appeal was made out in respect of the assessment of the cervical spine and the deductible proportion.
On 10 November 2017 the Appeal Panel confirmed the medical assessment certificate issued by Dr Ho. In the course of so doing the Appeal Panel said:
The appellant employer did not request that the claimant be re-examined by an AMS who was a member of the Appeal Panel.
The Appeal Panel held that there was a failure by the AMS to engage with the evidence or to explain why the deduction of one tenth was made, and that failure was a demonstrable error. The Panel said that the AMS failed to consider the evidence upon which the employer based its submissions and, although he made a deduction of one tenth, the AMS did not indicate his reasoning.
The Panel held, nevertheless, on an independent consideration of the evidence, that they were not satisfied that the assessment should be altered. They held that the plaintiff had not been able to point to any specific opinion that would justify a higher deduction pursuant to s 323 of the Workplace Injury Management and Workers Compensation Act 1998 (NSW).
The plaintiff by a summons filed 15 December 2017 sought an order in the nature of certiorari quashing the decision of the Appeal Panel and an order in the nature of mandamus remitting the application to a medical appeal panel for determination in accordance with law.
The two grounds for judicial review were these:
Ground one
1. The third defendant failed to take into account the plaintiff's request that a medical member of the third defendant exercise its power to examine the first defendant, because the third defendant mistakenly thought that the plaintiff consented to the matter being determined without a medical examination.
Particulars
1.1 The third defendant was bound to consider the plaintiff's request that the medical panel examine the plaintiff.
Ground two
2. The appeal panel failed to perform its statutory task, or failed to give adequate reasons for its decision when, having found error in the certificate of the AMS, it failed to address the gravamen of the opinions of the plaintiff's doctors, and more particularly, failed to address their opinions that the work injury was a temporary aggravation of an underlying condition, and explain why their opinion differed from that of the plaintiff's doctors (Vegan (2006) 67 NSWLR 372).
Written submissions were filed on both sides. The matter was fixed for hearing on 2 August 2018 before me. On 24 July 2018 my Associate received an email from counsel for the plaintiff, written with the consent of senior counsel for the first defendant saying that the parties had reached an agreement with respect to the appropriate orders. A copy of the orders were attached to the email and provided as follows:
1. Orders (sic) in the nature of certiorari quashing the decision made on 10 November 2017 by the Third Defendant, the Appeal Panel constituted under s 4328 (sic) of the Workplace Injury Management and Workers Compensation Act 1998 (NSW).
2. Remit the matter to the Second Defendant, the Registrar of the Workers Compensation Commission, for the purpose of constituting an Appeal Panel to determine the matter according to law.
3. No order as to costs.
In the light of that email I listed the matter at short notice before me to inform the parties that I considered it inappropriate for the Court simply to rubber stamp consent orders where what was being sought was an order in the nature of certiorari quashing the Appeal Panel's decision. The parties made brief submissions to the effect that it was sufficient for the consent orders to be made if I was satisfied with the plaintiff's argument that the Appeal Panel had committed an error of law.
My attention was drawn to the decision of French J when his Honour was a judge of the Federal Court of Australia in Kovalev v Minister for Immigration and Multicultural Affairs [1999] FCA 557. That was a case involving a decision of the Refugee Review Tribunal which affirmed a decision of the Minister to refuse the plaintiff a Protection Visa. Shortly prior to the hearing of an appeal to the Federal Court, the parties submitted to French J a minute of a proposed consent order that the decision of the Tribunal be set aside and that the matter be remitted to the Tribunal for determination according to law. Justice French noted at [3] that the minute did not specify the basis upon which the matter was to be remitted.
His Honour indicated that he was not prepared to make an order in the terms sought unless and until the following conditions were met:
1. The error of law grounding the decision to set aside the Refugee Review Tribunal's decision and which it was required to address by order of the Court was specified in the proposed order.
2. The Court was satisfied that there was a proper basis for setting aside the decision and remitting the matter to the Refugee Review Tribunal.
Subsequently a revised consent order was submitted which identified certain matters that the Tribunal was obliged to do in the particular case including making such findings of fact as were necessary on the material before it to come to a view about the issues in the case. The revised consent order was then made.
Justice French went on to set out a number of reasons why an order disposing of proceedings by consent must be self-explanatory. If the matter is remitted to a tribunal to be decided according to law it is necessary for the court itself to be informed of the nature of the error conceded by the parties. The consent order might then need to be drafted in such a way that the Tribunal understood how it was to go about its task in the circumstances of the instant case.
Finally, French J made two further points relevant to the present matter. His Honour said:
[14] This approach to the making of consent orders does not require exacting inquiry into the basis for every such order that is sought. There are many consent orders both of an interlocutory and a final nature which are perfectly regular and within power on their face and which reflect a considered resolution by parties of legal capacity to make the agreements reflected by those orders. One example of a "routine order" of this kind is a consent order dismissing an application. There are other orders which have particular public interest elements and require closer examination before the Court accedes to them.
…
[19] I do not think it necessary that a Judge in making consent orders of this kind should ordinarily elaborate reasons for being satisfied that they are within power and appropriate. I do not propose to do so in this case. I think it sufficient that the Judge be satisfied of the matters which I have referred to earlier and that the terms of the consent order themselves reflect the basis upon which the matter is being remitted to the Tribunal. It may be that parties submitting a consent order in such cases as well as formulating it with the requisite specificity could submit a brief joint memorandum identifying from the record those parts of the decision-maker's decision or process which disclose the conceded error.
A similar issue arose in Xiao v Minister for Immigration and Multicultural Affairs (2001) 109 FCR 129; [2001] FCA 459. In that case the Minister, although desirous for the matter to be returned to the Migration Review Tribunal, was not prepared to concede that an error of law had been made in the decision under review, only that the Tribunal had not considered a particular case said to be relevant to the decision of the Tribunal.
Justice Nicholson appeared to take the view at [24]-[27] that it was necessary for the court to find an error of law before the Court could exercise the power under s 481 of the Migration Act 1958 (Cth). His Honour noted the concession that the particular authority had not been considered, and held that that amounted to an error law. In those circumstances he was prepared to make the consent orders. His Honour considered (at [23]) that it was not necessary for the consent orders to state the nature of the reviewable error where that was made clear in any reasons for making the consent orders.
Inghams Enterprises Pty Limited v Vojnikovich [2014] NSWSC 1519 was a case where the parties sought to have Schmidt J make consent orders quashing an appeal panel's decision and remitting the matter to the Registrar for referral to a differently constituted appeal panel to be decided according to law. While the parties agreed that the matter should be returned to the tribunal to be determined, the defendant did not agree that a legal error had been made. The plaintiff in that case, who was also the plaintiff in the present case, submitted that if the Court was satisfied that the interests of justice demanded that the consent orders be made then the Court had power to quash the Appeal Panel's decision, even if not satisfied that error had been established.
Justice Schmidt said in response to that submission:
[23] Those submissions cannot be accepted. Contrary to Inghams' submissions, the decision in Xiao, does not support the case it advanced. There, an error was identified, which it was concluded provided a sufficient jurisdictional basis for the making of the order quashing the Tribunal decision there in question.
[24] In this case, while the Court undoubtedly has supervisory jurisdiction over the Commission under the provisions of the Supreme Court Act pursuant to which Inghams brought these proceedings, the exercise of that supervisory jurisdiction is not at large, as has long been recognised (see Victims Compensation Fund Corp v GM [2004] NSWCA 185 (2004) 60 NSWLR 310 at [31]).
[25] The exercise of that jurisdiction depends on relevant error being established, as discussed in Kirk v Industrial Relations Commission (NSW); Kirk Group Holdings Pty Ltd v WorkCover Authority of (NSW) (Inspector Childs) [2010] HCA 1; (2010) 239 CLR 531. There, the difficulty in determining in a particular case whether, if error has occurred, it is a jurisdictional error because the decision maker has made a decision outside the limits of the functions and powers conferred upon it, or does something which it lacks power to do, or whether the error is an error within jurisdiction, involving a decision which the decision maker is authorised to decide, was discussed (see at [66] - [70]).
[26] In this case, I am not satisfied that jurisdictional error has been established. These are adversarial proceedings. While the parties have resolved their underlying dispute and Inghams has identified the error which, on the case it advanced, the Appeal Panel fell into, the contrary argument has not been identified, let alone articulated.
Her Honour briefly examined the argument put forward by the plaintiff and said at [34] that it was not clear that the error on which the plaintiff's case rested was in truth an error of law but was rather an error of fact. In those circumstances her Honour was not satisfied that the Court had jurisdiction to make orders quashing the Appeal Panel's decision.
In the present case, the first defendant does not concede that there is legal or jurisdictional error. He simply says that he is mindful of the risk of defending the summons including a potential costs order. That was why the consent orders had been agreed to. On one view, that leaves the parties in the same position as in Inghams Enterprises v Vojnikovich.
It seems to me, however, that I can be comfortably satisfied by an examination of the submissions that the plaintiff in the present case establishes that an error of law has occurred as a result of the failure of the Appeal Panel to have regard to the plaintiff's request for an examination by an assessor on the Panel. The plaintiff eschewed any suggestion that the failure on the Panel's part was a breach of procedural fairness. Rather, it was said to be a failure to take into account a relevant consideration that the Panel was obliged to take into account. The ground can only be made out if a decision maker fails to take into account a consideration which he is bound to take into account in making the decision: Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 39.
The plaintiff's case receives support from the judgment of Bell J when her Honour was a judge of this Court in Dar v State Transit Authority of NSW [2007] NSWSC 260. In that case the plaintiff, who had been the respondent to the appeal to the Appeal Panel, had expressly requested in their submission opposing the appeal that the matter be determined "on a hearing basis so as to allow further oral submissions". The Appeal Panel in that case said this in their reasons:
DECISION MADE AFTER PRELIMARY REVIEW WITHOUT HOLDING AN ASSESSMENT HEARING
[13] The parties did not object to the determination of the matter without an Assessment Hearing and both parties supported an assessment on the papers.
Justice Bell noted at [64] that the defendant in that case acknowledged that the Appeal Panel proceeded upon a factually wrong basis, namely, that the plaintiff did not object to the determination of the matter without an assessment hearing and that the plaintiff supported an assessment on the papers. The plaintiff in that case asserted that the Appeal Panel's failure was one of not taking into account a relevant consideration.
Justice Bell said:
[67] It may be accepted that it was open to the Appeal Panel to determine that the appeal would proceed without an assessment hearing. However, there is force to the complaint that the Appeal Panel's discretion to decide whether to hold an assessment hearing was not properly exercised. It seems to me that it was not exercised at all because the Appeal Panel, wrongly, understood that each of the parties to this medical dispute wanted the appeal to be determined on the papers.
[68] The Appeal Panel's failure to take into account the plaintiff's wish to have an assessment hearing and make oral submissions would only justify setting its determination aside if it was bound to take this consideration into account: Minister for Aboriginal Affairs v Peko-Wallsend Limited (1985-1986) 162 CLR 24 Mason J at 39. In determining whether the Appeal Panel was bound to take this consideration into account it is necessary to have regard to the functions of the appeal panel under the Act. The appeal panel exercises a function that is judicial in nature. Its determination has potentially significant consequences for the parties. An assessment hearing offers the injured worker an opportunity to be legally represented and to have oral submissions advanced on his or her behalf. A party may be permitted to cross-examine a witness at an assessment hearing. The proceedings are recorded. An assessment hearing may offer important procedural protections to a party to a medical dispute.
[69] In this case the Appeal Panel was being invited by the defendant to find the degree of the plaintiff's impairment to be less than that assessed by Dr Meakin who had examined him by reference to material, which included surveillance film at a review conducted "on the papers". In my opinion the Appeal Panel was bound to take into account the plaintiff's wish that there be an assessment hearing and his desire to make oral submissions at it. The failure to take this consideration into account is an error of the kind described in Craig in the passage that I have set out (at [29] above).
Although there was no concession in the present case that a factual error had been made, it is difficult to see how no factual error was involved. The plaintiff had clearly answered in the affirmative to question 4.3.
The appellant did not fail to attach submissions. In those submissions it was said that the issue as to whether the worker should be reassessed by the Appeal Panel was an issue which should be addressed at the oral hearing which is sought by the appellant. The fact that paragraph 6(d) of the submissions deals with the inaccuracy in the history provided to the AMS could be seen as being related to the need for a re-examination of the worker by a member of the Appeal Panel.
In her written submissions the first defendant says that the word "application" in question 4.3 should be construed as meaning the application to re-examine the worker, whereas the word "application" when used in question 4.2 should mean the application for an appeal. Such an approach would be contrary to ordinary principles of construction of documents. The whole document was called "Application" and there is nothing to suggest that a more limited meaning should be given to that word where it was said in a number of places that a failure to attach submissions may result in the application being rejected. Question 4.3 spoke of a "request" for a worker to be re-examined and not an "application". No conclusion can be drawn that, in effect, no submissions were made. Nor can it be concluded, as the first defendant submitted in writing, that there was effectively no request.
The position is not different from that which obtained in Dar. The Appeal Panel made a factual error. They were obliged to take into account the request for re-examination and the request for an oral hearing. No reasons were given by them for rejecting either of those matters. Together they were a relevant consideration that needed to be taken into account. That was an error of law as identified in Craig v South Australia (1995) 184 CLR 163 at 179.
The outcome in the present case differs from what occurred in Kovalev because no concession was made with regard to an error of law. Like Nicholson J in Xiao and Schmidt J in Inghams Enterprises v Vojnikovich, it was necessary for me to examine the decision of the Appeal Panel to identify if an error of law was made. I am satisfied that there was such an error.
Accordingly, I make the following orders by consent:
(1) An order in the nature of certiorari quashing the decision made on 10 November 2017 by the Third Defendant, the Appeal Panel constituted under s 328 of the Workplace Injury Management and Workers Compensation Act 1998 (NSW).
(2) Remit the matter to the Second Defendant, the Registrar of the Workers Compensation Commission, for the purpose of constituting an Appeal Panel to determine the matter according to law.
(3) No order as to costs.
[2]
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Decision last updated: 10 August 2018