13 On 9 May 2006, 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.
14 The hearing took place on 6 February 2007. Counsel have relied on written submissions. The writing has been supplemented by oral argument.
15 There was argument as to the tests that should be applied by the delegate when having regard to the specified grounds. The plaintiff took the stance that the approach presented by Basten JA should be adopted (it was said to be that a specified ground could not be "dismissed as patently untenable or colourable" . The second defendant took the position that the role of the Registrar was to decide whether or not any specified ground of appeal had been made out.
16 In my view, these proceedings can be disposed of without further addressing that matter. Whilst I still maintain the view taken in Wikaira (see Mahenthirarasa v State Rail Authority of New South Wales & Ors [2007] NSWSC 22), it is not suggested that the delegate applied the wrong test in this case. The reasons do no more than employ the statutory language. It was conceded that it was not possible to discern which test had been applied.
17 There was some desultory argument concerning what comprised "the record". The argument was not pursued as there appeared to be a consensus that the matter was not of significance in this case.
18 The plaintiff appeared to abandon a submission that the record included all documents which the delegate had before him when he made his decision. The case proceeded on the basis that the certificate and the decision of the delegate was the relevant documentation.
19 Some brief discussion took place as to the meaning to be attributed to the words "demonstrable error". These 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).
20 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 the power to correct (s325(3)).
21 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.
22 The second reading speech contains the following concerning "demonstrable error" and "incorrect criteria":-
"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. It should also be noted that the appeal on the grounds of incorrect criteria does not allow appeals to challenge or overturn the guidelines. It is designed to cover circumstances where the guides themselves have been incorrectly applied."
23 Save for references to certain of this material, the expressions "demonstrable error" and "incorrect criteria" excited no further argument.
24 Whilst three specified grounds were relied on in the application to the Registrar, only two are looked to in these proceedings (the specified ground in sub-section (3)(b) of availability of additional relevant information was no longer pursued). The additional evidence is restricted to that which was not available to the appellant before the medical assessment appealed against, or that could not reasonably have been obtained by the appellant before the medical assessment.
25 Whilst the reasons for the abandonment of this ground were not elaborated, it may be that it was because the evidence did not fall within the confines of that restriction.
26 In the application made to the Registrar, the plaintiff relied not only on submissions but proffered a statement from each of Marie Hiavic and Robert Porter. The submissions contained assertions of fact said to have been made on the instructions of the plaintiff herself. The statements and the assertions contained material suggesting factual error in the assessment made by Dr Parmegiani.
27 The certificate has the status accorded to it by section 326 of the Act.
28 In so far as a challenge is made in this Court to his assessment on the basis that the certificate contains demonstrable error the case is maintained largely by way of the assertion of alleged error or inadequacy in the history which forms part of the certificate (there was also an apparent allegation of inconsistency between a finding that the plaintiff's memory was in tact and the recorded history (she was a poor historian)). This allegation can be immediately put aside as I am not satisfied that it can be sustained.
29 Generally speaking, in the present case, it is said that the error in, or inadequacy of, history was, inter alia, of the nature of either a failure to record or accurately record history that was given or a failure to ask relevant questions (see paragraphs 24 and 25 of the plaintiff's written submissions).
30 In the present case, the initial problem confronting the plaintiff is the difficulty had in the demonstration of such error. There is an evidentiary hurdle which she could not overcome. All that the plaintiff can look to is competing assertion (made subsequent to the certificate) and speculation. The contents of the certificate do not support the assertion of error. In the circumstances the challenge failed at this threshold stage.
31 The reaching of that view makes it unnecessary to further consider whether any alleged error could constitute a "demonstrable error" which the certificate contains.
32 Accordingly, I am not satisfied that there was error on the part of the delegate in dealing with this ground.
33 I now turn to the allegations made in support of the argument that the assessment was made on the basis of incorrect criteria (see paragraphs 26-29 of the plaintiff's written submissions).
34 In dealing with these allegations, the initial problem is that of discerning the meaning to be attributed to the language that expresses this ground of appeal. It was not a matter that was really dealt with in submissions. It seemed to be common ground that the WorkCover guides for the evaluation of permanent impairment of Chapter 2 (the guidelines) fell within the statutory concept of "criteria". However, what is contemplated by the language of the ground is far from clear. A literal construction of the statutory provision could suggest that the ground exists where incorrect criteria has been used in the making of the assessment (as opposed to error in the application of correct criteria). This may not be consistent with what was said by Parliament ("It is designed to cover circumstances where the guides themselves have been incorrectly applied"). This statement may be regarded as not being helpful. For present purposes it suffices to say that whatever was intended did not include an appeal on the merits.
35 In dealing with this aspect of the matter, the Court was taken to Table 11 which is the psychiatric impairment rating scale (PIRS). It provides that behavioural consequences of a psychiatric disorder are assessed on six scales, each of which evaluates an area of functional impairment. Table 11.12 and 11.13:-
"11.12 Behavioural consequences of psychiatric disorder are assessed on six scales, each of which evaluates an area of functional impairment:
1. Self care and personal hygiene (Table 11.1)
2. Social and recreational activities (Table 11.2)
3. Travel (Table 11.3)
4. Social functioning (relationships) (Table 11.4)
5. Concentration (Table 11.5)
6. Employability (Table 11.6)
11.13 Impairment in each area is rated using class descriptors. Classes range from 1 to 5, in accordance with severity. The standard form must be used when scoring the PIRS. The examples of activities are examples only. The assessing psychiatrist should take account of the person's cultural background. Consider activities that are usual for the person's age, sex and cultural norms."