The approach to jurisdictional error
24It is appropriate to recite the relevant terms of s 62 of the MAC Act:
"62 Referral of matter for further medical assessment
(1) A matter referred for assessment under this Part may be referred again on one or more further occasions in accordance with this Part:
(a) by any party to the medical dispute, but only on the grounds of the deterioration of the injury or additional relevant information about the injury, or
(b) by a court or claims assessor.
(1A) A matter may not be referred again for assessment by a party to the medical dispute on the grounds of deterioration of the injury or additional relevant information about the injury unless the deterioration or additional information is such as to be capable of having a material effect on the outcome of the previous assessment.
(1B) Referral of a matter under this section is to be by referral to the member of staff of the Authority who is designated by the Authority for the purpose (in this Part referred to as the proper officer of the Authority)."
25Since it is not immediately apparent to some how one enforces a right granted by statute, it is necessary to reiterate certain propositions that might otherwise be considered trite.
26Where a person refuses or fails to perform a public duty imposed upon that person by statute, an aggrieved party may command the performance of that duty by seeking and obtaining the writ of mandamus or, in New South Wales and some other jurisdictions, orders in the nature of mandamus. On the other hand, where a person purports to perform a statutory function in want or excess of jurisdiction, that person may be restrained (or subsequent conduct reliant upon that action restrained) by an aggrieved party seeking and obtaining the writ of prohibition, or, in New South Wales and some other jurisdictions, orders in the nature of prohibition: see Public Service Association of South Australia v Federated Clerks' Union of Australia, South Australian Branch [1991] HCA 33; (1991) 173 CLR 132 (hereinafter, "PSA (No 1)") at 144-145, per Brennan J, at 153, per Deane J, and at 166, per McHugh J. One or more of those orders ultimately issued in Singh v Motor Accidents Authority of NSW (No 2) [2010] NSWSC 1443 (hereinafter, "Singh (No 2)").
27As the High Court described it in R v Blakeley; Ex parte Association of Architects, Engineers, Surveyors and Draughtsmen of Australia [1950] HCA 40; (1950) 82 CLR 54 at 75:
"If an authority with limited jurisdiction has no power to make a conclusive decision as to the existence or non-existence of a collateral matter upon which jurisdiction depends, and makes a wrong preliminary decision either way, the mistake will be corrected by mandamus or prohibition - by mandamus if he wrongly decides that he has no jurisdiction, by prohibition if he wrongly decides that he has jurisdiction.
In the present case the Commissioner has in my opinion erroneously decided that there are no disputes existing between the Association and its members on the one hand and the employers who were served with the log on the other. He has wrongly declined to exercise his power and to perform his duty of hearing and determining the disputes. Therefore, in my opinion, mandamus should issue."
This passage was recently reiterated, with approval, in Public Service Association of South Australia v Industrial Relations Commission (SA) [2012] HCA 25; (2012) 86 ALJR 862 (hereinafter, "PSA (No 2)"), at [58], per Gummow, Hayne, Crennan, Kiefel and Bell JJ.
28The terms "excess of jurisdiction" and "want of jurisdiction" are frequently used in referring to inferior courts or tribunals in a manner which is interchangeable, but there is, strictly, a distinction. The term "want of jurisdiction" generally refers to conduct or an act which is beyond the general power of court or tribunal, while "excess of jurisdiction" generally refers to conduct or an act within general power but performed in breach of the statutory conditions necessary to authorise the conduct or act: see PSA (No 1) at 164, per McHugh J, in dissent.
29In PSA (No 1), the High Court, by majority (Brennan, Dawson and Gaudron JJ) determined that a refusal of leave to appeal by a Full Commission of the Industrial Commission of South Australia was affected by jurisdictional error, because the Full Commission refused leave on the ground that the Registrar of the Industrial Commission, from whom the appeal was sought to be taken, was exercising a discretionary power. The High Court found that the Full Commission had wrongly categorised the nature of the decision under appeal and that the refusal of leave involved an excess of jurisdiction. Therefore, the denial of leave by the Commission, even though within the kind of order that could be made, was amenable to prohibition notwithstanding the privative clause that purported to operate.
30The minority in PSA (No 1) (Deane and McHugh JJ) in separate judgments determined that there was no excess or want of jurisdiction and, in the case of McHugh J, no jurisdictional error. In so deciding each of the judges in the minority took that which nowadays would be classed as a narrow view of jurisdictional error, while the majority took a view consistent with the more recent authorities on jurisdictional error.
31QBE, in these proceedings, relies upon the extended or modern view as to jurisdictional error and relies on my previous decision in Singh v Motor Accidents Authority of NSW [2010] NSWSC 550 (hereinafter, "Singh (No 1)") to construe the provisions of s 62 of the MAC Act as requiring conditions for the exercise of power that are jurisdictional facts, namely the existence of additional relevant information about the injury and whether the information is "capable of having a material effect on the outcome of the previous assessment". QBE submits that a proper application of the Court's judgment in Singh (No 1) would have the Court, consistently, hold that these are jurisdictional facts, which must exist as objective facts, and the non-existence of which precludes a referral.
32In Singh (No 2), the foregoing analysis in Singh (No 1) was qualified by reference to the jurisdictional fact being the objective existence of "a ground" of additional relevant information capable of having a material effect on the outcome: see Singh (No 2) at [39] - [40].
33As the judgment of the Court of Appeal in Rodger v De Gelder [2011] NSWCA 97; (2011) 80 NSWLR 594 makes clear, my judgment in Singh (No 1) was overruled (see, in particular, the authorised headnote in the New South Wales Law Reports). QBE relies upon the fact that the Court of Appeal in Rodger v De Gelder expressly declined to deal with the question of jurisdictional fact, leaving, on the submission of QBE, the reasoning in Singh (No 1) and Singh (No 2) unaffected in that respect.
34The analysis in Singh (No 1) and Singh (No 2) of the term "jurisdictional fact" remains formally unaffected. In general, it depended upon well-known and often applied authority. In Singh (No 1) I said:
"[44] In some respects the term 'jurisdictional fact' is a misnomer. The most useful definition is that of the High Court in Gedeon v Commissioner of the New South Wales Crime Commission [2008] HCA 43; (2008) 236 CLR 120 at 139. There, the High Court (Gummow, Kirby, Hayne, Heydon, Crennan and Kiefel JJ) said:
'[43] The expression "jurisdictional fact" was used somewhat loosely in the course of submissions. Generally the expression is used to identify a criterion the satisfaction of which enlivens the exercise of the statutory power or discretion in question. If the criterion be not satisfied then the decision purportedly made in exercise of the power or discretion will have been made without the necessary statutory authority required of the decision maker.'
[45] The expression has been used for many years and was used to include 'constitutional facts', i.e. those criteria the existence of which enlivened legislative power: see for example the determination by the High Court, over many years, of the existence of 'an industrial dispute extending beyond the limits of any one State' in considering the jurisdiction of the federal arbitral body.
[46] But the criteria which requires satisfaction to enliven the exercise of statutory power is not necessarily confined to 'a fact'. It may often be a mixed question of fact and law. The fact may be the existence of an opinion of a particular decision-maker or some other person: see for example Corporation of the City of Enfield v Development Assessment Commission [2000] HCA 5; (2000) 199 CLR 135.
[47] Thus in City of Enfield, supra, (at [28]) the High Court referred to the term 'jurisdictional fact' as one 'often used to identify that criterion, satisfaction of which enlivens the power of the decision-maker to exercise a discretion. Used here, it identifies a criterion, satisfaction of which mandates a particular outcome.' In that case, the criterion requiring satisfaction was the consent of both the Minister and the Council: City of Enfield, supra, at [28] (per Gleeson CJ, Gummow, Kirby and Hayne JJ).
[48] The determination of whether a circumstance or fact is 'jurisdictional' depends upon the construction of the statute. In turn, that depends upon a determination as to whether the legislature intended that the absence or presence of the objective criterion will or will not invalidate action under the statute. This was one of the fundamental issues that the High Court discussed in Project Blue Sky v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355. The issue was discussed by the Court of Appeal in Timbarra Protection Coalition Inc v Ross Mining NL & Ors [1999] NSWCA 8; (1999) 46 NSWLR 55. In dealing with issues arising under the Environmental Planning and Assessment Act 1979, his Honour Chief Justice Spigelman (with whom Mason P and Meagher JA concurred) said:
'[37] The issue of jurisdictional fact turns, and turns only, on the proper construction of the Statute. (See e.g. Ex parte Redgrave; Re Bennett (1946) 46 SR (NSW) 122, 125). The Parliament can make any fact a jurisdictional fact, in the relevant sense: that it must exist in fact ("objectivity") and that the legislature intends that the absence or presence of the fact will invalidate action under the statute ("essentiality"). (Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28 at [91]- [93]).
[38] "Objectivity" and "essentiality" are two interrelated elements in the determination of whether a factual reference in a statutory formulation is a jurisdictional fact in the relevant sense. They are interrelated because indicators of "essentiality" will often suggest "objectivity".
[39] Any statutory formulation which contains a factual reference must be construed so as to determine the meaning of the words chosen by Parliament, having regard to the context of that statutory formulation and the purpose or object underlying the legislation. There is nothing special about the task of statutory construction with regard to the determination of the issue whether the factual reference is a jurisdictional fact. All the normal rules of statutory construction apply. The academic literature which describes "jurisdictional fact" as some kind of "doctrine" is, in my opinion, misconceived. The appellation "jurisdictional fact" is a convenient way of expressing a conclusion - the result of a process of statutory construction.
[40] Where the process of construction leads to the conclusion that Parliament intended that the factual reference can only be satisfied by the actual existence (or non-existence) of the fact or facts, then the rule of law requires a Court with a judicial review jurisdiction to give effect to that intention by inquiry into the existence of the fact or facts.'
[49] The reference, by the High Court of Australia, to the inconvenience of determining that the legislature has made the jurisdiction contingent upon the actual existence of the state of facts, as distinct from the opinion or determination of a court or tribunal (see Parisienne Basket Shoes Pty Ltd v Whyte [1938] HCA 7; (1938) 59 CLR 369 at 391, per Dixon J), does not apply to a circumstance where the criteria are not to be determined by a court or tribunal, at all."
35As is clear from the foregoing analysis, whether any particular criterion is a jurisdictional fact will depend most importantly on the construction of the statute. The foregoing analysis, upon which QBE relies, is an analysis predicated on the conclusion that the Proper Officer is doing no more than an administrative step and is not determining or affecting the rights of the parties.
36The Court of Appeal in Rodger v De Gelder made clear that such a conclusion is incorrect. As Beazley JA said in Rodger v De Gelder (at [69]), the task of a Proper Officer is not "only procedural" and (at [70]):
"The task of the Proper officer involves making a decision that affects rights, as it is the outcome of the medical assessment that determines whether or not a person has an entitlement to damages for non-economic loss. True it is that it is the outcome of the further medical assessment (if any) that determines the legal rights of the parties. However, the decision of the Proper Officer as to whether the further information or deterioration in the injury is capable of having a material affect on the outcome of the previous assessment, 'sufficiently "determines" or is connected' with that decision and ... is amenable to an order in the nature of certiorari."
37As a consequence of that finding, the Court of Appeal found it unnecessary to consider the further issue of whether the criteria in s 62(1)(a) and s 62(1A) of the MAC Act were jurisdictional facts.
38Nevertheless, the effect of the judgment in the Court of Appeal, apart from formally overruling Singh (No 1) (and by inference Singh (No 2)) significantly affects the statutory context of the conditions in s 62(1)(a) and s 62(1A) of the MAC Act and, as a consequence, the construction of the legislation. That different context impacts significantly upon whether or not the provisions in s 62 are jurisdictional facts. I will return to this later in the judgment.