Lukacevic v Coates Hire Operations

(8) Notwithstanding subsection (7), where the appeal is from a judgment after a trial or hearing on the merits, the Court shall not receive further evidence except on special grounds. (9) Subsection (8) does not apply to evidence concerning matters occurring after the trial or hearing.' 52 The restriction upon the adducing of further evidence contained in s.75A(7) and (8) has been construed to involve a test where the appellant must show, inter alia, that the evidence could not have been obtained with reasonable diligence for use at the trial: Akins v National Australia Bank (1994) 34 NSWLR 155 at 160. There is a separate test provided for in s.75A(9), which allows a general discretion to admit evidence as to matters occurring after the date of the trial, but this discretion is not at large and regard must be had "to the context in which [the discretion] arises and also to the general public interest in the finality of litigation" : Doherty v Liverpool District Hospital (1991) 22 NSWLR 284 at 296; Glover v Australian Ultra Concrete Floors Pty Limited [2003] NSWCA 80 at paragraph 36…" 16 The MAP reviewed the material before it, including the reports of other psychiatrists and the submissions, and concluded the Medical Assessment Certificate of the AMS should be confirmed.

The dispute 17 The plaintiff, submitted, in short, that

(a) the third defendant denied him procedural fairness in failing to take into account a relevant consideration in refusing to consider fresh evidence under WIM s 328(3) in the form of the Statement about what had occurred at the examination before the AMS;

(b) section 328(3) permits the giving of fresh evidence on an appeal, if it "was not available to the appellant before that medical assessment or could not reasonably have been obtained by the appellant before that medical assessment". The evidence about what occurred at the medical assessment clearly fell into that category. Section 328(3) does not confer a discretion upon a MAP to refuse to accept such evidence;

(c) alternatively, if the MAP had a discretion not to admit the evidence, then it erred in the exercise of that discretion in that it asked the wrong question, applied the wrong test or failed to exercise its discretion at all;

(d) the MAP erred in purporting to apply a blanket rule, in holding that statements challenging the recording of an applicant's history by an AMS should not be admitted on appeal because the AMS would have to be "accorded procedural fairness" and "the continual opening and re-opening of the evidence is not in the interests of justice". 18 The first defendant submitted, in short, that

(a) fresh evidence was only admissible in the appeal in the discretion of the MAP;

(b) the discretion was properly exercised to exclude the "fresh evidence" in this case;

(c) if the Statement had been received the outcome would have been no different.

WIM provisions 19 The medical assessment provisions of WIM are contained in Pt 7 thereof. Those provisions are complemented by the guidelines issued pursuant to s 376(1) WIM, see also ss 331 and 328(2). 20 Section 322(1) WIM provides: "The assessment of the degree of permanent impairment of an injured worker for the purposes of the Workers Compensation Acts is to be made in accordance with WorkCover Guidelines (as in force at the time the assessment is made) issued for that purpose." 21 Section 328 WIM provides: "(1) An appeal against a medical assessment is to be heard by an Appeal Panel constituted by 2 approved medical specialists and 1 Arbitrator, chosen by the Registrar. (2) The appeal is to be by way of review of the original medical assessment. The WorkCover Guidelines may provide for the procedure on an appeal. (3) Evidence that is fresh evidence or evidence in addition to or in substitution for the evidence received in relation to the medical assessment appealed against may not be given on an appeal unless the evidence was not available to the appellant before that medical assessment or could not reasonably have been obtained by the appellant before that medical assessment." 22 Guideline 40 provides that the appeal form must attach: "a copy of the medical assessment certificate being appealed. a copy of all reports and documents that the party sent to the Commission to be referred to the AMS prior to the assessment. any submissions the party wants to make in support of the grounds of appeal."

Similarly with the defendant's reply to the appeal (Guideline 41). 23 Guideline 43 provides: "The Appeal Panel, comprising two AMSs and an Arbitrator, will undertake a preliminary review of the documents. The parties are not present for this preliminary review. The Appeal Panel decides on the appropriate action to take in the appeal including whether the worker should be examined and if new evidence should be allowed. The Appeal Panel may set a date for an assessment hearing or may decide the appeal on the papers without further involvement from the parties."

Is there a discretion in relation to the receipt of fresh evidence by the MAP? 24 The plaintiff submitted s 328(3) was clear in its terms. Provided the evidence sought to be adduced was: "(a) fresh evidence or evidence in addition to or in substitution for the evidence received in relation to the medical assessment appealed against; and (b) the evidence was not available to the appellant before that medical assessment or could not reasonably have been obtained by the appellant before that medical assessment"

it is admissible. There is no discretion to reject it. The MAP erred in excluding the Statement in the purported exercise of a discretion which it did not have. 25 I do not agree. In my opinion, s 328 tacitly acknowledges the existence of a discretion to determine whether fresh evidence should be allowed on an appeal but limits one aspect of that discretion by precluding the admission of evidence which does not meet the prerequisites in s 328(3). Subject to that limitation, there remains a general discretion. 26 This is confirmed by guideline [43], which states that "The Appeal Panel decides…if new evidence should be allowed." 27 It is also consistent with the comments of Johnson J in Summerfield where his Honour said: "[57] …The Appeal Panel will itself apply a fresh evidence test under s.328(3) WIM Act for the purposes of the appeal. The Registrar's decision under s.327(3)(b) and (4) does not have the result that the additional relevant information which appears to exist will necessarily be admitted by the Appeal Panel at the hearing of the appeal. [58] …I see no warrant in the words of the statute, viewed in the context of the broad objectives and purposes of the legislation, to impose a harsher and more demanding test for fresh evidence on appeal under ss.327 and 328 than the test which applies on appeal from a civil trial court to the Court of Appeal in civil curial proceedings."

I do not read the comments in Zuanic v Gypro-Tech (Australia) Pty Limited (2006) 66 NSWLR 206 (at [72] and [73]) or Massie v Southern NSW Timber and Hardware Pty Limited [2006] NSWSC 1045 (at [49]-[50]), to which reference was made by the plaintiff during the hearing, to be inconsistent with that construction. 28 It is appropriate that the MAP have such a discretion. As counsel for the first defendant submitted "…if the position for which the plaintiff contends, namely, that there is no discretion admitted via the subsection, then any statement commenting on the process of the medical examination by the medical assessor, be it the obtaining of history, disagreement about history, understanding of what was put etc, would be admissible before the appeal panel because it would, plainly enough, satisfy either or both limbs of the test which my learned friend says is the sole gateway to admissibility under sub-s (3) of s 328. We say that can't possibly be so. It can't possibly be the intention of the Parliament to pass that provision in that form to operate in that way." 29 In my opinion, the MAP had a discretion in relation to the receipt of fresh evidence on the appeal.

The exercise of the discretion 30 In exercising the discretion regard must be had to the context in which the discretion arises and to the general public interest in the finality of litigation - Summerfield at [52]. 31 The plaintiff submitted that, if there was a discretion, its exercise miscarried as:

(a) the AMS, as the administrative decision maker, had no vested interest in the outcome of any appeal from his decision. As his rights and interests were not affected by the outcome of the appeal, there was no need to accord him "procedural fairness";

(b) the MAP was not required to adjudicate between the AMS and the plaintiff, nor to engage in a "continual opening and reopening of the evidence". 32 The reference to "procedural fairness" was not, it seems to me, a reference to the AMS but a reference to the first defendant. There was a legitimate concern that, if the Statement was admitted, procedural fairness to the first defendant would require a response to be obtained from the AMS in respect of the allegations of the plaintiff concerning the conduct of the assessment, the AMS being a competent, but not compellable witness - WIM s. 325(4). The admission of the Statement would lead to delay as information was sought from the AMS, the possibility of the plaintiff seeking a right of reply to the AMS and the MAP ultimately being required to adjudicate between the plaintiff and the AMS. These matters could lead to the prolongation of the appeal, contrary to the statutory scheme which seeks to achieve finality and would involve issues not contemplated by the appeal mechanism. 33 It was open to the MAP, in the exercise of its discretion, to reject the Statement. In my opinion, the plaintiff has not demonstrated the exercise of the discretion miscarried.

No different result would have ensued if the Statement was admitted into evidence 34 The MAP determined that it was not necessary for the plaintiff to undergo a further medical examination and that there was sufficient medical evidence before it for it to consider, evaluate and determine the issues raised on the appeal on the papers. 35 The MAP reviewed the documents forwarded to the AMS for his assessment, the AMS certificate and the submissions of the parties. It had particular regard to the reports of the three psychiatrists who had examined the plaintiff and the plaintiff's submissions. It considered and determined each of the four grounds of appeal raised in the plaintiff's submissions. The MAP reached its own conclusion concerning the correct assessment of the impairment and losses suffered by the plaintiff. 36 The Statement dealt essentially with two aspects, namely the manner in which the medical assessment examination was conducted by the AMS and the signs and symptoms of psychiatric problems of relative longstanding. The latter were not admissible within the terms of s 328(3) and, in any event, they were the subject of earlier histories and observations. 37 The MAP formed its own assessment. It did so having regard, inter alia, to the submissions by the plaintiff which relevantly replicated the issues raised by the Statement. The MAP, in considering the matter, was in no materially different position than had the Statement been admitted and been before it when its final determination was being made. 38 In my opinion, no different result would have ensued if the Statement had been admitted into evidence.

Conclusion 39 In my opinion, the application fails.

2. The plaintiff to pay the first defendant's costs of the summons. **********

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