RailCorp NSW v Registrar of the Workers Compensation Commission of NSW

Court of Appeal (NSW)|2014-03-13|Before: Macfarlan JA, Ward JA, Emmett JA, Harrison J, MacFarlan JA

Judgment 1MACFARLAN JA: I agree with Emmett JA. 2WARD JA: I agree with Emmett JA. 3EMMETT JA: This appeal is concerned with decisions made by the first respondent, the Registrar of the Workers Compensation Commission of New South Wales (the Registrar), in connection with the assessment of the incapacity of the second respondent, Mrs Ragaa Haroun, as a result of injuries suffered by Mrs Haroun in the course of her employment by the appellant, RailCorp NSW (RailCorp). The decisions in question were made under the provisions of the Workplace Injury Management & Workers Compensation Act 1998 (NSW) (the Management Act) in relation to the referral of medical disputes between RailCorp and Mrs Haroun to approved medical specialists for the purpose of providing medical assessment certificates in respect of Mrs Haroun's incapacity. Ultimately, any assessment will lead to a determination under the Management Act by the Workers Compensation Commission (the Commission) as to the entitlement of Ms Haroun to compensation in relation to the injuries suffered by her.

The Relevant Statutory Scheme 4Under s 321 of the Management Act, the Registrar may refer a medical dispute for assessment. The term "medical dispute" is defined in s 319 as a dispute between a claimant and the person on whom a claim is made about any item on a given list of matters, including, inter alia, the degree of permanent impairment of the worker as a result of an injury. The parties to the dispute may agree on the approved medical specialist who is to assess the dispute. If the parties have not agreed within seven days after the dispute is referred, the Registrar is to choose the approved medical specialist who is to assess the dispute. 5Under s 325, the approved medical specialist to whom a medical dispute is referred is required to give a medical assessment certificate as to the matters referred for assessment. Under s 326, an assessment certified in a medical assessment certificate is conclusively presumed to be correct as to certain matters in any proceedings before a court or the Commission. The matters that are presumed to be correct include the degree of permanent impairment of a worker as a result of an injury. 6Under s 327(1), a party to a medical dispute may appeal against a medical assessment. However, under s 327(4), an appeal is not to proceed unless the Registrar is satisfied, on the face of the application and any submissions made to the Registrar, that at least one of the grounds of appeal specified in s 327(3) has been made out. Those grounds are as follows:

Factual Background 8On 24 June 2005 and 14 July 2005, Mrs Haroun suffered separate injuries in the course of her employment by RailCorp. She subsequently made claims for lump sum compensation arising out of those injuries based upon an assessment of whole person impairment. A dispute between RailCorp and Mrs Haroun as to the extent of her impairment was originally referred for assessment to Dr Edward Schutz, an approved medical specialist under the Management Act. On 22 November 2006, Dr Schutz provided a certificate of assessment of whole person impairment of 1% for the injury on 24 June 2005 and of whole person impairment of 1% for the injury on 14 July 2005. On appeal to the Medical Appeal Panel (MAP), those assessments were confirmed. 9Mrs Haroun brought proceedings in the Supreme Court seeking judicial review of the decision of the MAP. Those proceedings were dismissed and an appeal from that dismissal to the Court of Appeal was unsuccessful. On 29 June 2007, the Commission determined Mrs Haroun's lump sum entitlements in accordance with Dr Schutz's assessments and made orders accordingly. RailCorp paid the compensation due under those orders. 10Subsequently, Mrs Haroun made a claim for further lump sum compensation. RailCorp denied that claim on 19 May 2011 and, on 7 September 2011, Mrs Haroun lodged an application with the Commission for the medical dispute that had thus arisen to be dealt with under s 321. That required the Registrar to refer the dispute to an approved medical specialist for assessment. 11On 20 September 2011, RailCorp proposed that Dr Schutz be appointed as the approved medical specialist for the purposes of the dispute notified on 7 September 2011. At 12.48pm on 29 September 2011, Mrs Haroun's solicitors sent a facsimile to the Registrar saying that they were instructed to oppose the request by RailCorp to have the medical dispute referred to Dr Schutz as the approved medical specialist. The facsimile asserted that, in the absence of agreement between the parties, Mrs Haroun was entitled to attend an approved medical specialist appointed by the Registrar and was not bound to return to the same approved medical specialist who had assessed her previously. 12At 1.50pm on 29 September 2011, a delegate of the Registrar sent an email to the solicitors for Mrs Haroun and the solicitors for RailCorp attaching a proposed referral to Dr Schutz for assessment of Mrs Haroun's permanent impairment. The email said that any objection to the referral as framed should be lodged and served within seven days. 13By email sent at 2.01pm on 29 September 2011, Mrs Haroun's solicitors responded to the Registrar's delegate, reiterating that Mrs Haroun objected to having the matter referred to Dr Schutz and requesting the Commission to make a random allocation of an approved medical specialist to examine her. By email sent to the Registrar's delegate at 2.24pm, RailCorp's solicitor said that the referral should be to Dr Schutz, as the claim was in respect of deterioration subsequent to the previous medical assessment certificate and, on that basis, Dr Schutz was in the best position to assess the claim. RailCorp's solicitors asserted that Mrs Haroun should provide reasons as to why she objected to the referral to Dr Schutz. 14At 3.32pm on 29 September 2011, the Registrar's delegate sent a further email to the parties' solicitors, saying that it was the practice of the Registrar, where a claim for deterioration resulting in permanent impairment is made, to refer the matter back to the same approved medical specialist as had previously been appointed, to ensure consistency and fairness. The delegate noted that the previous assessment by Dr Schutz as to permanent impairment had been the subject of an appeal but that his assessment had been confirmed on appeal. 15The 3.32pm email said that, in circumstances where there were no submissions made as to why Dr Schutz was unable to make an assessment, and the parties had not reached agreement as to the appointment of an approved medical specialist, the Registrar was required to appoint the approved medical specialist. The email then said: The Registrar appoints Dr Schutz in accordance with standard practice. Clearly enough, that email constituted an exercise of the power conferred by s 321(2). 16At 10.24am on 30 September 2011, Mrs Haroun's solicitors sent another email to the Registrar's delegate asserting that, during the previous examination conducted by Dr Schutz, the conduct of Dr Schutz had been unprofessional. Five reasons were given for that assertion. The email then asserted that Mrs Haroun had lost confidence in Dr Schutz and in the accuracy of his findings at the previous examination. The email then submitted that, on the basis of the reasons then given, the Registrar "should reconsider referring the matter to be re-examined by [Dr Schutz]". 17At 12.09pm on 30 September 2011, the Registrar's delegate responded by email to Mrs Haroun's solicitors, saying that the issues raised effectively amounted to a complaint regarding the conduct of Dr Schutz. The delegate asked whether that was the first time those issues had been raised, noting that the earlier examination had taken place almost five years previously. The email said that further consideration to the request would be given "upon your response". 18Mrs Haroun's solicitors replied by email at 1.59pm on 30 September 2011, saying that Mrs Haroun had had a "bad experience" with Dr Schutz and did not see why she should have to see him again. The solicitors asserted that Mrs Haroun was not required to do so and asked whether the Registrar required sworn evidence from her regarding the complaints. The solicitors said that, should that be necessary, they would obtain sworn evidence from Mrs Haroun. The email ended with a request that the Registrar "please reconsider having the matter referred to [Dr Schutz]". 19At 2.51pm on 30 September 2011, the Registrar's delegate responded by email to the 1.59pm email from Mrs Haroun's solicitors. That email said that a "statutory determination" had been made to appoint Dr Schutz as the approved medical specialist to determine the medical dispute in the matter. The email asserted that, once the appointment of an approved medical specialist had been made, it was "not open" to the Registrar to change it simply on the basis of an application by one party, "in the absence of an appropriate legal basis to do so". The email asserted that: on the information provided, there is no legal basis upon which the decision to appoint Dr Schutz as AMS [approved medical specialist], should be altered. 20The 2.51pm email went on to refer to "WorkCover Guidelines" that made it clear that Mrs Haroun was entitled to be accompanied to the examination with Dr Schutz by a support person and suggested that that was a course that she may wish to consider. The email said that, alternatively, if Mrs Haroun was able to reach an agreement with RailCorp regarding the appointment of an alternative approved medical specialist within seven days, the Registrar would appoint that approved medical specialist. 21The decision evidenced by the email at 2.51pm on 30 September 2011 was not expressly impugned by the parties in the proceedings at first instance. However, the primary judge concluded that the decision was invalid in so far as the Registrar failed to take into account that there was in fact an appropriate legal basis for altering the decision to appoint Dr Schutz, and thus he fell into jurisdictional error by mistakenly denying his power to reconsider an earlier decision. RailCorp contended that it was denied procedural fairness in relation to the determination by the primary judge that that decision was invalid, since that decision had not been put in issue in RailCorp's summons. It will be necessary to return to that question. 22On 6 October 2011, the Registrar's delegate notified the solicitors for both parties that an appointment had been arranged for Mrs Haroun to be assessed by Dr Schutz on 3 November 2011. The communication requested Mrs Haroun to attend the examination promptly and to take with her any relevant medical reports relating to her claim against RailCorp. 23On 1 November 2011, Mrs Haroun's solicitors wrote to the Registrar, referring to the scheduled appointment with Dr Schutz on 3 November 2011. The letter asserted that, on the last occasion when Mrs Haroun was seen by Dr Schutz, she found him to be "both unprofessional and uncomfortable to be around". The letter made more specific allegations concerning Dr Schutz's conduct towards Mrs Haroun at that previous examination, and attached a statement dated 23 October 2011 signed by Mrs Haroun, outlining in more detail incidents that she alleged had occurred on that day. The letter said that Mrs Haroun was "extremely adamant" about not wanting to see Dr Schutz after her previous experiences and requested the Registrar to consider making an alteration to the approved medical specialist by whom Mrs Haroun was to be examined. 24At 2.35pm on 2 November 2011, the Registrar's delegate sent an email to Mrs Haroun's solicitors in response to the letter of 1 November 2011, explaining that it was the Commission's practice to have further loss claims assessed by the same approved medical specialist where possible. The email referred to the Registrar's email of 30 September 2011 inviting the parties to agree on an alternative approved medical specialist to conduct the examination. The delegate continued by observing that no further correspondence had been received until 1 November 2011, when particulars of Mrs Haroun's complaints against Dr Schutz were provided to the Commission for the first time. The delegate said that, while the Registrar had the ability to investigate complaints against approved medical specialists, the passage of five years since the initial examination arguably made any investigation impractical at that point. The email ended by saying that Mrs Haroun should attend the appointment scheduled for the following day. 25By email sent at 2.44pm on 2 November 2011, Mrs Haroun's solicitors responded to the delegate's email of 2.35pm, saying that they were instructed that Mrs Haroun would not attend the examination with Dr Schutz the following day. The email said that, given the circumstances "as conveyed in some detail already", the Commission "could quite easily of its own accord show some degree of flexibility" in selecting an alternative doctor. The email urgently sought "your reconsideration and some degree of compassion". 26At 3.47pm on 2 November 2011, the Registrar's delegate sent a further email to both parties' solicitors, saying that, in light of the advice from Mrs Haroun's solicitors that she would not attend the examination on the following day, the Commission had cancelled the appointment with Dr Schutz "to avoid any unnecessary inconvenience" to him. The email went on to say that, "as a means of progressing this matter in a timely fashion", the Registrar proposed to appoint Dr Philippa Harvey-Sutton to examine Mrs Haroun. The email said that a revised referral document would be issued shortly and that an appointment could be made for 14 December 2011. The email ended by asking both parties whether the proposed appointment was acceptable to them. 27At 4.23pm on 2 November 2011, the solicitors for RailCorp sent an email to the Registrar's delegate objecting to the referral to Dr Harvey-Sutton and saying that it was RailCorp's position that, as the matter was in respect of a claim for deterioration since the previous medical assessment certificate, Dr Schutz was in the best position to assess the claim. RailCorp's email observed that that was the usual procedure of the Commission and that no evidence had been provided by Mrs Haroun that should change the usual procedure. 28RailCorp's email of 4.23pm also observed that the complaints in respect of the earlier assessment "are five years out of time" and that Mrs Haroun had not provided any statement as to her complaints about the initial examination. The email said that, if Mrs Haroun had complaints against Dr Schutz at the time of the initial assessment, she would be expected to have made complaints to the Registrar at the time or to have included such complaints in the appeal to the MAP and in the related proceedings in the Supreme Court and the Court of Appeal. The email said that RailCorp strongly objected to the referral to Dr Schutz being cancelled and to the further referral to Dr Harvey-Sutton. RailCorp submitted that Mrs Haroun should be required to attend the appointment with Dr Schutz. 29At some time on 2 November 2011 after 4.23pm, RailCorp's solicitors were provided with a copy of the letter of 1 November 2011 from Mrs Haroun's solicitors together with the statement signed by Mrs Haroun. At 9.04am on 4 November 2011, RailCorp's solicitors sent an email to Mrs Haroun's solicitors and the Registrar's delegate indicating that RailCorp had now received the signed statement from Mrs Haroun. The email submitted that, having regard to the seriousness of the complaints, Mrs Haroun should file and serve a sworn affidavit. It is significant that RailCorp's solicitors did not suggest that the matters dealt with in the statement signed by Mrs Haroun would not justify revoking the decision to refer the dispute to Dr Schutz. The only complaint appears to have been that Mrs Haroun had not sworn to the correctness of her complaints. 30On 7 November 2011, the Registrar wrote to both parties' solicitors, referring to the previous correspondence, and confirming that the signed statement from Mrs Haroun dated 23 October 2011 had been received, together with the submissions in reply from RailCorp. The Registrar said that the allegations contained in Mrs Haroun's statement were very serious and that the only way to determine whether the complaints could be substantiated was to conduct an investigation. The Registrar said that an investigation would be commenced shortly but that, in order to allow the dispute to proceed and not be delayed by the investigation, a determination had been made that the examination should be conducted by Dr Harvey-Sutton. 31An amended referral for assessment by Dr Harvey-Sutton of the degree of permanent impairment of Mrs Haroun was issued on 9 November 2011. On 3 January 2012, Dr Harvey-Sutton provided a medical assessment certificate, in which she certified a whole person impairment of 4% for the first injury and whole person impairment of 11% for the second injury. 32On 31 January 2012, RailCorp lodged an application to appeal to the MAP against the decision of Dr Harvey-Sutton. On 23 February 2012, Mrs Haroun filed a notice of opposition to any such appeal. On 9 March 2012, a delegate of the Registrar made a decision that none of the grounds of appeal as specified in s 327(3) had been made out by RailCorp and that the appeal was not to proceed.

The Proceedings 33By summons filed on 13 April 2012, RailCorp commenced proceedings in the Common Law Division. The relief claimed by RailCorp was as follows: (1)The determination by the Registrar on 7 November 2011 be quashed or set aside; (2)The decision of the Registrar on 29 September 2011 be reinstated; (3)The medical assessment certificate of Dr Harvey-Sutton be quashed; (4)If Orders 1 and 2 are not made, the decision of the Registrar made on 9 March 2012 be set aside; (5)The proceedings be remitted to a MAP. 34On 26 March 2013, for reasons published on that day, the primary judge ordered that RailCorp's claim for judicial review failed and that its summons be dismissed. Her Honour ordered RailCorp to pay Mrs Haroun's costs as agreed or assessed. 35On 17 June 2013, RailCorp filed a notice of appeal from the orders of 26 March 2013 and filed an amended notice of appeal on 19 June 2013. RailCorp claims to be entitled to appeal without leave on the basis that the potential amount at stake in the proceedings is in the order of $195,973.43. That amount is supported in an affidavit sworn by RailCorp's solicitor and filed on 8 August 2013.

The Appeal 36By its amended notice of appeal, RailCorp relied on the three grounds as follows:

The primary judge erred in holding that the Registrar's determination of 30 September 2011 was affected by jurisdictional error and was invalid.
The primary judge erred in holding that the decision of the Registrar on 7 November 2011 to appoint a new approved medical specialist remains a valid exercise of power.
The primary judge erred in considering the validity of the decision of 9 March 2012 in so far as her Honour failed to consider the effect of the determination of 29 June 2007 as giving rise to an issue estoppel between the parties.

37At the commencement of the hearing of the appeal, counsel for RailCorp abandoned the third ground. Accordingly, it is not necessary to consider whether the fact of the earlier determination in 2007 precluded Dr Harvey-Sutton from reaching the conclusion that she recorded in her certificate of 3 January 2012. 38Mrs Haroun filed a notice of contention, seeking to support the decision of the primary judge concerning the delegate's decision of 7 November 2011 on the ground of election by RailCorp. She contends that, once the decision of 7 November 2011 had been made, RailCorp had an election, either to seek judicial review of that decision or to treat the decision as valid and proceed with the assessment by Dr Harvey-Sutton, subject only to any statutory right to appeal against that assessment to the MAP. Mrs Haroun asserts that RailCorp elected the second alternative and that, in those circumstances, the Court would not, in the exercise of its discretion, grant relief of the nature claimed by RailCorp in respect of the decision. 39The short answer to that contention may be that it is not inappropriate for an applicant for judicial review to exhaust the remedies available under the relevant legislative scheme before seeking relief under s 69 of the Supreme Court Act 1970 (NSW). That is to say, it would not necessarily follow that, by merely endeavouring to exhaust the process contemplated by the Management Act in relation to medical assessment, RailCorp had acquiesced in the validity of the Registrar's decision of 7 November 2011 (see Rodger v De Gelder [2011] NSWCA 97; 80 NSWLR 594 at [91]-[92]). However, for reasons that will become apparent, it is unnecessary to decide the question raised by Mrs Haroun's contention.

Validity of Decision of 30 September 2011 40A fair reading of the email sent at 2.51pm on 30 September 2011 (the September Decision Email) indicates that the delegate was saying that, on the information provided on behalf of Mrs Haroun, he was not persuaded that there was a basis for altering the decision to appoint Dr Schutz. The reference to "an appropriate legal basis" should fairly be understood as no more than a reference to a ground for altering the decision that had some basis in law. 41The ground that was advanced on behalf of Mrs Haroun was her assertion that the conduct of Dr Schutz during the previous examination had been unprofessional, such that she had lost confidence in him. Five particulars of unprofessional conduct had been provided as follows: (1)Dr Schutz was dismissive of Mrs Haroun's report of her injuries; (2)Dr Schutz casually dismissed complaints by Mrs Haroun that she was being required by Dr Schutz, as part of the examination, to perform movements and positions that she was unable to perform because of her injuries; (3)Dr Schutz was eating during the examination; (4)Dr Schutz did not examine the scans that Mrs Haroun had brought with her to the examination; (5)Dr Schutz repeatedly checked Mrs Haroun's handbag for contents. 42The September Decision Email did no more than inform the parties that, on the basis of that complaint as particularised, the Registrar's delegate was not satisfied that the original decision to appoint Dr Schutz should be altered. It was not a refusal to exercise jurisdiction or a denial of the existence of jurisdiction. Rather, the Registrar's delegate was exercising his jurisdiction by making a decision not to alter the original decision. In so far as the primary judge concluded that the decision of 30 September 2011 was invalid, her Honour erred. 43However, the matter is of no moment unless it can be demonstrated that, by making the decision of 30 September 2011, following Mrs Haroun's request of 29 September 2011 to reconsider the original decision, the Registrar's power to consider referral to a different specialist was exhausted. It will be necessary to consider that question in dealing with RailCorp's contentions that the decision of 7 November 2011 was invalid.

Validity of the Decision of 7 November 2011 44There were two bases upon which RailCorp contended that the decision of 7 November 2011 was invalid. The first was that, by making the decision of 30 September 2011, the power of the Registrar to reconsider the original decision to refer the assessment to Dr Schutz was exhausted, such that the Registrar no longer had power to entertain any further request for reconsideration of the decision to refer the assessment to Dr Schutz. The second basis was that RailCorp was denied procedural fairness by the Registrar in the process of making the decision of 7 November 2011.

Whether the Power was Exhausted 45RailCorp's stance in relation to the first basis, that the power to reconsider had been exhausted, became quite unclear. In its written submissions, RailCorp contended that, by making the decision of 30 September 2011, the Registrar had already lawfully exercised the statutory power under s 378(1), by refusing Mrs Haroun's application for reconsideration. RailCorp contended that, from that point on, having exercised the power of reconsideration, the Registrar was functus officio and simply did not have power to determine the very same matter again. 46In her written submissions, Mrs Haroun accepted that, at common law, a power is spent once it has been exercised and that a decision-maker is functus officio when the decision-maker has performed a statutory duty or exercised a statutory power that is not capable of being exercised on more than one occasion. However, she submitted, unless one can discern a contrary intention from the Management Act, s 48(1) of the Interpretation Act 1987 (NSW) (the Interpretation Act) would displace the common law position and s 378(1) of the Management Act does not display a contrary intention. Section 48(1) provides, relevantly, that if an Act confers or imposes a function on any person or body, the function may be exercised from time to time as occasion requires. In any event, Mrs Haroun submitted, the terms of s 378 do not limit the occasions when the reconsideration power may be exercised, nor do they confine the number of reconsiderations available to the Registrar in respect of the same matter. 47There may be a question as to whether there is any work for s 48 to do in the present circumstances, where s 378 confers on the Registrar an express power to reconsider any matter that has been dealt with by the Registrar, such as a referral for assessment under s 329(1). That is to say, there may be a question as to whether reconsideration of a matter under s 378 is the exercise of a function within the meaning of s 48. That appears to have been the argument foreshadowed in RailCorp's written submissions. 48However, in the course of oral argument, counsel for RailCorp was asked whether he wished to press the point that the Registrar did not have power as at 7 November 2011, and how he proposed to deal with s 48. The response was that s 378 "trumps" s 48. However, counsel said, the Court need not be troubled by any of that because of the unfettered power in s 378, making it unnecessary to consider the Interpretation Act. When pressed to indicate why the power under s 378 cannot be exercised and re-exercised, counsel responded that, even though the power is unfettered in its terms, it must be exercised lawfully in accordance with the principles of administrative law, without denying natural justice. He said that, if there was an application for reconsideration, and the other side had an opportunity to consider the application and to make appropriate submissions in response to it, there would be no problem whatsoever in a reconsideration of the original decision under s 378(1). 49While the response of RailCorp's counsel was not completely clear, it is reasonable to proceed on the basis that the contention that the Registrar was functus officio after 30 September 2011 was abandoned. Accordingly, it is unnecessary to deal with the question of whether the Registrar had power to make the decision of 7 November 2011. In any event, it is difficult to see why there would be any constraint on the Registrar's power to reconsider a referral, at least at any time prior to the completion of an examination by the approved medical specialist.

Denial of Procedural Fairness 50RailCorp's summons of 13 April 2012 did not raise as a ground for the relief claimed in respect of the decision of 7 November 2011 that RailCorp had been denied procedural fairness in the making of that decision. On the hearing of the appeal, counsel for RailCorp sought leave to amend the summons to raise that ground and then to rely on that matter as a ground of appeal. 51The new contention advanced on behalf of RailCorp was that the primary judge erred in holding that the Registrar's decision of 7 November 2011 remained a valid exercise of power, in circumstances where there had been a denial to RailCorp of procedural fairness in the making of that decision. RailCorp asserted in its written submissions that, based on "prior undertakings by the Registrar" and "the previous decisions made in relation to the matter", RailCorp held a legitimate expectation that the Registrar would not determine in her favour any reconsideration application made by Mrs Haroun without first informing RailCorp that such a favourable determination could occur and affording RailCorp an opportunity to make further submissions or to adduce evidence. When pressed, in the course of oral argument, for particulars of "the prior undertakings by the Registrar" and "the previous decisions made in relation to the matter", counsel for RailCorp simply identified the communications between the parties that have been summarised above. 52Counsel for RailCorp also sought to expand the basis of the alleged legitimate expectation by reference to a document entitled "Registrar's Guideline" published by the Registrar. That document was not tendered before the primary judge and had not previously been referred to by RailCorp. The document was a guideline of the way in which the Registrar would deal with requests for reconsideration, including the power conferred by s 378 of the Management Act. It is said that a party might make an application by way of letter that includes information specified in the guideline. The application for reconsideration should be made as soon as practicable after the party making the application becomes aware of the basis for seeking a reconsideration. The other party might indicate support or opposition by filing and serving, within 21 days, a reply that includes specified information. The document pointed out that the power in s 378 is a discretionary one and would be exercised in order to achieve the objective of providing a fair dispute resolution system. The document said that regard would be had to existing common law principles applicable to reconsideration applications, which were set out in the document. 53No explanation was proffered on behalf of RailCorp as to why the ground of denial of procedural fairness by the Registrar had not been raised in the proceedings before the primary judge. Further, no explanation was proffered as to why the Registrar's Guideline was not tendered before the primary judge. An allegation of a denial of procedural fairness requires an examination of all of the surrounding circumstances to determine whether or not such a claim can be established. There has been no exploration of the circumstances surrounding the making of the decision of 7 November 2011 and it is possible that material that throws light on that question could have been available. No basis has been established for the grant of leave to amend and to adduce fresh evidence. 54In any event, the communications in November 2011 summarised above demonstrate fairly clearly that RailCorp had every opportunity to advance submissions in opposition to Mrs Haroun's further request for reconsideration of the appointment of Dr Schutz. That is borne out by the fact that RailCorp made no complaint at the time that it had not been afforded an adequate opportunity to respond to Mrs Haroun's reasons for requesting reconsideration of the appointment of Dr Schutz. In the circumstances, there would be no utility in granting leave to RailCorp to raise the question of alleged denial of procedural fairness. Any such claim would be doomed to failure on the basis of the contentions now advanced.

Conclusion 55Leave to amend the originating summons, to rely on denial of procedural fairness in the making of the decision of 7 November 2011, should be refused. It follows that there is no ground of appeal remaining that could possibly succeed. The appeal should be dismissed. RailCorp should pay Mrs Haroun's costs of the appeal.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 08 April 2014

Workers Compensation Act 1998(NSW)

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