Inghams Enterprises Pty Limited v Vojnikovich

Judgment 1The plaintiff, Inghams Enterprises Pty Ltd, commenced these proceedings seeking orders quashing a decision made by a Medical Appeal Panel under the Workplace Injury Management and Workers Compensation Act 1998 (NSW), in relation to a claim made by the first defendant, Ms Vojnikovich, on the basis of various alleged error, including error as to the matters relevant to the application of a deduction for a pre-existing abnormality under s 323 of that Act. 2On 26 September 2014, Inghams asked the Court to make consent orders quashing the Appeal Panel's decision and remitting the matter to the Registrar for referral to a differently constituted Appeal Panel under s 328 of the Act, in circumstances where it was submitted that the parties had agreed that an error had occurred and where they had reached an agreement which resolved the entire dispute lying between them. There was no separate appearance that day for Ms Vojnikovich. 3It was then accepted that the Court had to be satisfied that the orders sought were within power and appropriate. What was required, it was submitted, was at least a prima facie view that there had been reviewable error, for the Court to have the power to make the orders sought. Reference was made to Kovalev v Minister for Immigration & Multicultural Affairs [1999] FCA 557; (1999) 100 FCR 323 at [17] - [19] and Xiao v Minister for Immigration & Multicultural Affairs [2001] FCA 459; (2001) 109 FCR 129 at [19] - [27]. 4In Kovalev, French J (as he then was) observed at [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." 5In Xiao, the Minister did not concede error but conceded that it was appropriate for the matter to be remitted without a concluded view as to error being formed. It was concluded at [19] that the concession that the matter should be remitted because a relevant decision had not been considered, was "an acceptance that there was an error of law in that the Tribunal incorrectly applied the law to the facts in that it did not consider the reasoning in Nong". There was also an issue between the parties as to the correctness of Nong v Minister for Immigration & Multicultural Affairs [2000] FCA 1575; (2000) 106 FCR 207, which also had to be resolved. 6There were finally no such concessions or arguments advanced in this case. 7In evidence were the terms of the parties' settlement, as well as documents identifying the medical dispute referred for assessment under s 319 of the Act; the Medical Assessment Certificate issued in December 2013 by the Approved Medical Specialist; Inghams' application to appeal the Medical Specialist's decision; written submissions advanced on appeal; and the Appeal Panel's statement of reasons, given after a hearing on the papers. 8The error identified by Inghams went to the operation and application of s 323 of the Act, dealt with at [30] of the written Appeal Panel's decision, where it was said: "While the AMS unfortunately indicated that he had "elected" not to apply a deduction, the Panel was of the view that even if the AMS had erred in expressing his views concerning the section 323 deduction in this manner, there was no evidence of any impairment arising from a pre-existing condition or pre-existing abnormality. The Panel accepts that the Respondent worker had no symptoms before she commenced work with [sic] Appellant. She performed heavy duties for over six months in a cool environment." 9When short oral submissions were made for Inghams on 26 September, Ms Vojnikovich was not represented. I asked whether the position was that it was agreed between the parties that in their assessment the Appeal Panel had applied the wrong test. The response was, "Yes, erred in law, misapplied the section, asked the wrong question or applied the wrong test. Your Honour I rely upon that agreed error." It later emerged that there was no such agreement. 10On 29 September 2014, the parties were advised that I would be assisted by the provision of a short note clarifying the error which it was agreed had been made, as discussed by French J in Kovalev. In the alternative they were asked to take steps to have the matter relisted. 11I took that course because I understood that the parties had agreed that the Appeal Panel's decision was to be quashed, with the result that the Medical Specialist's decision would be reinstated, given the error identified at [30] of the Appeal Panel's decision. There, however, it appeared on examination of the decision that the Appeal Panel had agreed with the Medical Specialist as to certain factual questions and had reached the same conclusion as to deduction, albeit for different reasons. In the result, given the approach discussed in Kovlev, it appeared important to identify with precision the error which the parties had agreed and on which the Court's jurisdiction to make the order sought rested. 12That was because it has long been recognised that a court will be justified in making consent orders if it has jurisdiction and power to do so but parties cannot, by consent, confer power upon the court to make orders which the court lacks power to make (see Thomson Australian Holdings Pty Ltd v Trade Practices Commission [1981] HCA 48; (1981) 148 CLR 150 at 163). 13I relisted the matter on 29 October 2014, there having been no approach from the parties. That day both Inghams and Ms Vojnikovich were represented. It emerged that there was no agreement as to the error which Inghams had identified on 26 September, but still both parties pressed the Court to make the orders which they had consented to. 14Inghams provided short written submissions identifying the error to be the Appeal Panel's treatment of the issue of deduction under s 323 of the Act. The Approved Medical Specialist had assessed Ms Vojnikovich to be suffering carpal tunnel syndrome and hence impairment of her upper extremities at 14%. He had "elected" not to apply a deduction under s 323 on account of a pre-existing condition. 15Inghams applied for a review of that decision under s 327(3)(c) and (d), complaining, amongst other things, about the treatment of the pre-existing abnormality. Its case was that a deduction for a pre-existing abnormality was not a matter of discretion. 16In its decision the Appeal Panel said that it had conducted its own review of the material before it and had reached its own conclusions as to the correct assessment of Ms Vojnikovich's left and right upper extremities. Inghams submitted that it was implicitly there accepted that it was an error to elect not to apply a deduction. The Appeal Panel had still concluded that there should be no deduction, because there was no impairment prior to the work injury, accepting that Ms Vojnikovich had no symptoms before she commenced work with Inghams. 17Inghams' case was that in reaching that conclusion the Appeal Panel had posed the wrong question. The correct question was whether any pre-existing condition or abnormality contributed to the current impairment, regardless of whether it had previously caused symptoms. Inghams relied on D'Aleo v Ambulance Service (Court of Appeal (NSW), 12 December 1996, unrep) the relevant paragraphs of which were incorrectly said to have been cited in Cole v Wenaline Pty Ltd [2010] NSWSC 78 at [29] - [32]). 18It was explained for Ms Vojnikovich that those submissions were not agreed and that there was an issue between the parties as to whether the alleged error had been made by the Appeal Panel. Given the settlement, that question did not, however, need to be determined. In those circumstances, Ms Vojnikovich also pressed for the making of the orders to which she had agreed, submitting that it was in the interests of justice that these proceedings so be brought to a conclusion. 19The parties also submitted that it would be consistent with the provisions of s 56 of the Civil Procedure Act 2005 (NSW), which provides that the overriding purpose of that Act is to facilitate the just, quick and cheap resolution of the real issues in the proceedings, for the Court to make the orders sought. They urged the conclusion that to refuse to make the orders sought would unnecessarily protract the proceedings and increase the parties' costs. 20Unquestionably it is in the parties' interests and consistent with the requirements of s 56 of the Civil Procedure Act, for the proceedings to be brought to an end without further cost or court time. Whether, however, that can be achieved in the way the parties propose, depends upon the Court's jurisdiction to make the orders to which they have agreed, as they each accepted. 21The difficulty is that while the underlying dispute between the parties has been entirely resolved on the terms agreed, it has not been agreed that the Appeal Panel erred in the way submitted for Inghams. To the contrary, it was submitted for Ms Vojnikovich that the correctness of the Appeal Panel's decision remained a live issue, notwithstanding the settlement on terms favourable to her. 22For Inghams it was submitted that the Court's jurisdiction to make the orders sought rested on s 23 and s 69 of the Supreme Court Act 1970 (NSW). On its approach, so long as the Appeal Panel's decision was one which could become the subject of orders in the nature of the prerogative relief which it sought, if the Court was satisfied that the interests of justice demanded that the orders be made, the Court had power to quash the Appeal Panel's decision, even if not satisfied that error had been established. 23Those 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. 24In 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]). 25The 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]). 26In 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. 27The question of whether error which enlivens the exercise of this Court's supervisory jurisdiction had occurred cannot easily be resolved without even an articulation of that argument. 28Further, even that the error which Inghams complains of occurred, is not readily revealed by paragraph [30] of the Appeal Panel's decision on which its submissions relied. 29Section 323 requires when the degree of permanent impairment resulting from an injury is assessed, that there be a deduction made for "any proportion of the impairment that is due to any previous injury ... or that is due to any pre-existing condition or abnormality". The Medical Specialist did not find that Ms Vojnikovich had a previous injury, pre-existing condition or abnormality. He said there may have been "an underlying predisposition" to injury. He "elected" to make no deduction because severe nerve entrapment had been shown and because Ms Vojnikovich had been asymptomatic before commencing her employment. 30The Appeal Panel accepted Inghams' case that s 323 provided no such discretion, but still concluded that no deduction was required, explaining at [30] that there was no evidence of any impairment arising from a pre-existing condition or abnormality and observing that Ms Vojnikovich had no symptoms before commencing work with Inghams. 31In Cole v Wenaline Pty Limited, on which Inghams' case rested, there was no question as to the Court's jurisdiction to make the orders sought under s 69 of the Supreme Court Act quashing the decision given by a Workers Compensation Commission Appeal Panel, on the ground of error on the face of the record. By way of contrast, in the summons commencing these proceedings, various error was identified, relevantly, it appears as: "Error by the Appeal Panel in the consideration of those matters relevant to the requirement for the application of a deduction for pre-existing abnormality." 32It was the proper construction of s 323 which arose for determination in Cole v Wenaline Pty Limited. In that case there was no issue that there had been a previous injury (see at [14]). I there concluded that firstly, the section is directed to a situation where there is a pre-existing injury, pre-existing condition or abnormality and that for a deduction to be made from what has been assessed to have been the level of impairment which resulted from a later injury at work, a conclusion is required, on the evidence, that the pre-existing injury, pre-existing condition or abnormality had caused or contributed to that impairment (at [29]). Secondly, I concluded that the section does not permit an assessment of whether a pre-existing injury, condition or abnormality caused or contributed to an identified impairment "to be made on the basis of an assumption or hypothesis, that once a particular injury has occurred, it will always, 'irrespective of outcome', contribute to the impairment flowing from any subsequent injury" (at [30]). 33I also said, however, at [26]: "There is no question that in so far as the Appeal Panel may have mistaken the evidence in arriving at its assessment that the prior injury resulted in a 50% contribution to the impairment which the plaintiff was suffering, that was an error of fact not amenable to review in these proceedings. It is only if it can be shown that there was an error of law involved in its approach to the resolution of the matter which fell to be decided, namely whether any proportion of the plaintiff's impairment was due to his previous injury, pre-existing condition or abnormality that the relief sought may be granted." 34In this case, whether Ms Vojnikovich had an abnormality which had contributed to her impairment was in issue. Given what the Appeal Panel observed at [30] of its decision, it is not clear that the error on which Inghams' case rests is in truth an error of law in the application of s 323 in the assessment of the contribution of a pre-existing abnormality to the impairment identified, rather an error of fact, if it was one, as to the existence of that abnormality. It was not suggested that there was any issue between the parties as to the correctness of Cole v Wenaline Pty Limited. That explains why Ms Vojnikovich was not prepared to concede the existence of the error of law which Inghams had identified. 35In the result, despite the terms of the parties' agreement, I am not satisfied that the Court has jurisdiction to make orders quashing the Appeal Panel's decision, notwithstanding the regrettable consequence that undoubtedly additional costs will be incurred by the parties. The making of such an order depends upon a finding that the Appeal Panel made a decision outside the limits of the functions and powers conferred upon it, or that it did something which it lacks power to do under the Workplace Injury Management and Workers Compensation Act. Unlike the situation in Xiao, here the parties have not established a basis on which such a finding can rest, Ms Vojnikovich having made no relevant concession as to error and error not otherwise having been clearly established. 36That does not, it seems to me, mean that orders could not be made in these proceedings, which would give effect to the parties' agreement. Understandably, given that the parties do not agree that the Appeal Panel made any error of law, the heads of agreement do not expressly require orders being made by this Court, quashing the Appeal Panel's decision. Orders dismissing these proceedings on payment of the agreed sum, in full satisfaction of the orders made in the Commission proceedings, can undoubtedly be made by consent. That would not require any finding of error and would raise no jurisdictional difficulty. 37A resolution, it would seem, is available to the parties, consistently with their obligations under the Civil Procedure Act and the terms of that agreement. That, however, is a matter for the parties to consider, consistently with the pragmatic course which they urged on the Court. 38For the reasons given, I decline to make the consent orders sought, the parties not having established that the Court has jurisdiction to make such orders.