15 On 12 September 2005, the plaintiff filed a summons in this Court. It seeks relief in the nature of judicial review (s69 of the Supreme Court Act 1970 (NSW)). It seems to be generally accepted that the scope for intervention is as expressed in Craig v South Australia (1995) 184 CLR 163 at 179.
16 The summons relied on during the hearing did not contain any enunciation of grounds upon which relief was sought. Subsequent to the reserving of judgment, a formulation (which was presented in a proposed Amended Summons) was made as follows:-
"Ground one.
The First Defendant asked the wrong question, that error going to jurisdiction ( Craig v South Australia [184 CLR 163 at 179, line 21ff), and/or erred in law, that error being on the face of the record (section 69 of the Supreme Court Act ).
Particulars.
That the First Defendant should have asked whether or not the application merely pleaded valid grounds under section 327(3), and, possibly, whether valid grounds were pleaded which were not "colourable", "manifestly hopeless", "doomed to failure", "not arguable", or whether there was a "serious issue to be tried", whereas the First Defendant, in fact, inquired as to whether or not the grounds pleaded were "made out".
Ground two.
In the alternative to ground one (should the Court find that the Registrar had to be satisfied that grounds were "made out"), the First Defendant failed to take into account a relevant consideration, thus erring in law, and erring as to jurisdiction, in failing to consider whether or not the Third Defendant had "demonstrably erred" or "applied incorrect criteria" in applying a ¾ deduction under table 68A of the Workers Compensation Act 1987 for pre-existing condition, and a 10/11th deduction under table 327 of the Workplace Injury Management and Workers Compensation Act 1998 in relation to exactly the same injury ."
17 The hearing took place on 29 January 2007. There were three named defendants. All of the defendants have adopted a submitting role. Counsel appeared for the plaintiff. Counsel also appeared for the first defendant. He was present to deal with any question concerning costs. He did not participate in argument concerning the plaintiff's claim for relief.
18 The primary matter argued on behalf of the plaintiff was said to be that the first defendant applied the wrong test and thus asked the wrong question in addressing whether or not there was satisfaction that a ground of appeal exists. The argument looked to the obiter dicta in Vegan for support. It was said that the role of the Registrar was to address the question of whether or not a specified ground of appeal was arguable (as opposed to made out).
19 In written submissions, it was submitted that:-
"14. The Registrar's decision in this case is predicated, in the Applicant's decision, on the assumption that it is the role of the Registrar to evaluate the quality of the Applicant's argument and make an evaluative judgment, on the balance of probabilities, as to whether or not there is "application of incorrect [medical] criteria" or "demonstrable error", that is, it applies the test referred to in paragraph 8."
17. In the Plaintiff's submission, a proper reading of the Act requires simply that the Registrar exercising their powers under section 327 determines simply whether grounds are formally pleaded, whether there is an arguable case, or whether an appeal is manifestly hopeless; the test must involve a low thresh-hold (sic). The remainder of the review task then falls for consideration by the appeal panel."
20 For present purposes, it may be thought that what has been done by the legislature rings the death knell for the primary argument. It assists in confirming the view that the test propounded by the plaintiff is not what was intended by the legislature. As would appear from what has been earlier said, I do not depart from the view expressed in Wikaira. If that test was applied, in my view there was no error.
21 Even if that consideration be put aside, I consider that the argument remains confronted with an insurmountable problem. If a different view be taken and it is assumed, for the purposes of this hearing, that what the Registrar had to do at the relevant time is as alleged by the plaintiff, I still consider that the argument must fail.
22 In my view, a reading of the reasons does not support it. In the expression of the decision of the delegate the reasons seek to employ the statutory language (see, inter alia, paragraphs 3, 4 and 10). There is a neutrality in what was said. The chosen language may reflect what could be regarded by the Registrar and delegates as being placed in an invidious position. I am unable to discern from it what test was applied. It was also argued that other material contained in the reasons disclosed that the delegate was seeking to determine the matter on the balance of probabilities. I do not accept that submission. Accordingly, I am not satisfied that the primary argument has been made out.
23 There is also a further consideration. The relief sought by the plaintiff is discretionary in nature. Relief may not be granted if so doing would be a futility.
24 Even if a different view had been taken on the plaintiff's argument, I do not consider that the Court should refer the matter back to the Registrar unless there is utility in so doing. In this case, it would have to be shown that there was a ground of "incorrect criteria" or "demonstrable error" that needed to be addressed.
25 A further argument was briefly raised in oral submissions. It was put in written submissions as follows:-
"19. Further regardless of whether the test can be characterised as a "balance of probabilities" or an "arguable case" test, the Registrar has erred in failing to find that there is a "demonstrable error" (or arguable case that there is a demonstrable error) in the application of sections 68A and section 323.
20. That is because of the logical inconsistency between the deduction for pre-existing condition under section 68A of the old Act, using table 1, and the deduction for pre-existing condition under section 323 of the WIM Act, using table 2, in relation to precisely the same injury (pages 4 and 5 of the decision of the AMS decision, which is annexure 'G' in the documents exhibited to Michael Malley's affidavit, filed 9 September 2005 "the affidavit")."
21. This ground of appeal was raised at paragraph 10 of the appellant's appeal from the AMS, which is annexure "F" of the affidavit.
26 The certificate has the status accorded to it by section 326 of the Act.
27 The further argument was not developed and it seemed to me to be but faintly pressed at the hearing. In my view, the plaintiff failed to make out this argument. Further, there was a failure to persuade that what was done could constitute "demonstrable error" in the contents of the certificate. It may be added that even if a different view was taken on these matters, it was not shown that the ground had any real significance in relation to the assessment.
28 For completeness, I should make some brief observations concerning the matter of the meaning to be given to the words "demonstrable error" in their statutory context. This was not a matter on which the Court was given assistance by counsel.
29 The words are not defined in the Act. It may be said that the proper meaning to be given to these words in their statutory context remains at large (sub-section (3)(d) requires that the certificate contain such an error). A dictionary meaning given to "demonstrable" is "capable of being shown or logically proved". It would appear not to be intended to include "obvious error" which the Registrar has power to correct (s325(3)). In Merza v Registrar of the Workers Compensation Commission & Anor [2006] NSWSC 939, Hoeben J said that it was sufficient for the purposes of determining that case to conclude that such an error is an error that is readily apparent from an examination of the medical assessment certificate and the document referring the matter for assessment. He also observed that error alone was not sufficient. The second reading speech contains the following concerning "demonstrable error":-
"A demonstrable error would essentially be an error for which there is no information or material to support the finding made-rather than a difference of opinion."