Supreme Court of WA|2002-11-27|Before: Mr P, Roberts-Smith J, Lure J

Re Monger; Ex Parte Barminco Pty Ltd [2002] WASC 279 (27 November 2002)

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

CITATION : RE MONGER; EX PARTE BARMINCO PTY LTD [2002] WASC 279

MATTER : An application for a Writ of Certiorari against ROSS MONGER, THE DIRECTOR OF THE CONCILIATION & REVIEW DIRECTORATE constituted under the Workers' Compensation & Rehabilitation Act 1981 (WA) ("Director")

Workers' Compensation - Prerogative writ - Certiorari - Decision of Conciliation Directorate under Workers' Compensation and Rehabilitation Act 1981 (WA) to accept application under s 93D of the Act - Whether medical opinion supported by medical evidence - Whether medical evidence sufficient - Whether relief should be refused on discretionary grounds

Workers' Compensation and Rehabilitation Act 1981 (WA), s 84ZN(1), s 84ZW s 93D(5)-(10), s 93E

Workers' Compensation and Rehabilitation Regulations 1981 (WA), reg 19J

Re Monger; Ex parte Ivey [1999] WASC 250

Re Monger; Ex parte Shire of Wyndham-East Kimberley [2002] WASC 165

Ex parte Savage and Savage [1989] WAR 46

1 McLURE J: This is the return of an order nisi for a writ of certiorari made by Roberts-Smith J on 20 August 2001 ordering the Director of the Conciliation & Review Directorate ("Director") to show cause why a writ of certiorari should not be issued to remove into this Court for the purpose of being quashed, certain decisions made by the Director under s 93D of the Workers' Compensation and Rehabilitation Act 1981 (WA) ("Act").

2 The Director's decisions the subject of the application are:

(a) to accept an application made by Mr Peter MacPhilomey ("the worker") by a Form 22 received by the Conciliation & Review Directorate on 8 December 1999 pursuant to s 93D(6) of the Act;

(b) to forward to the applicant a Form 23 Notice of Referral of Question of Degree of Disability pursuant to s 93D(7) of the Act and reg 19J(1) of the Workers' Compensation and Rehabilitation Regulations 1981 (WA) ("Regulations") made under the Act;

(c) that a dispute pursuant to s 93D(8) of the Act had arisen for the purposes of Pt IIIA of the Act; and

(d) that the question of the worker's degree of disability be referred pursuant to s 93D(10) of the Act for resolution under the provisions of Pt IIIA (other than Division 2) of the Act.

(a) pursuant to s 93D(6) of the Act the Director was required to examine the alleged medical evidence of the worker produced to the Director in support of the Form 22 application;

(b) the alleged medical evidence submitted by the worker to the Director in support of the Form 22 application did not comply with the requirements of the Act in that it:

(i) merely expressed a medical opinion, and contained no "medical evidence" of the kind required by s 93D(6); and

(ii) failed to correctly assess the worker's degree of permanent loss of use of the alleged injured body part in accordance with Schedule 2 of the Act where such an assessment could be made in accordance with Schedule 2 of the Act, contrary to the provisions of s 93D(2) of the Act.

(c) As a consequence of the matters referred to at par (b) the Director:

(i) should have rejected the worker's Form 22 on the basis it did not comply with the Act;

(ii) should not have issued a Form 23 Notice of Referral of Question of Degree of Disability pursuant to s 93D(7) of the Act and reg 19J(1) of the Regulations;

(iii) should not have determined that a dispute pursuant to s 93D(8) of the Act had arisen for the purposes of Pt IIIA of the Act; and

(iv) should not have referred under s 93D(10) of the Act the question of the worker's degree of disability for resolution under the provisions of Pt IIIA (other than Division 2) of the Act.

4 Roberts-Smith J also ordered that the worker's application in the Conciliation & Review Directorate be stayed until the determination of the application for a writ of certiorari. The Director did not appear and filed a notice to abide by the Court's decision. The worker appeared and was represented by counsel at the hearing. He opposed the issue of a writ of certiorari.

5 The Act was amended, with effect from 5 October 1999, to limit the circumstances in which courts in this jurisdiction could award common law damages for disabilities compensable under the Act. The effect of the amendments is that damages can only be awarded if it is agreed or determined that the degree of disability of the worker is not less than 30 per cent, or the worker has a "significant disability" (defined by s 93E(4) as a degree of disability agreed to be, or determined to be, not less than 16 per cent) and the worker has elected, in the prescribed manner, to retain the right to seek damages.

6 The decisions the subject of this application are referred to, expressly or impliedly, in s 93D(5) to (10) inclusive of the Act which materially provide:

"(5) If the worker and the employer cannot agree on whether the degree of disability is not less than the relevant level [not less than 30 per cent or not less than 16 per cent], the worker may, subject to subsection (6), refer the question to the Director.

(6) A question can only be referred under subsection (5) if the worker produces to the Director medical evidence from a medical practitioner indicating that, in the medical practitioner's opinion, a degree of disability is not less than the relevant level.

(7) As soon as practicable after receiving a referral under subsection (5) the Director is to notify the employer in accordance with the regulations.

(8) If within 21 days after being notified under subsection (7) the employer notifies the Director in accordance with the regulations that the employer considers that the degree of disability is less than the relevant level, a dispute arises for the purposes of Part IIIA.

(9) The Director is to consider the dispute in consultation with the parties.

(10) ... if the dispute is not resolved by agreement the Director is to refer the question for resolution under the provisions of Part IIIA (other than Division 2)."

7 Under reg 19J(1) a referral by the worker under s 93D(5) is to be made in the form of Form 22. A notification under s 93D(7) by the Director to the employer is to be in the form of Form 23 (reg 19J(2)). A notification by the employer under s 93D(8) is also to be made in the form of Form 23 (reg 19J(3)).

8 The facts are not in dispute. On 15 December 1997 the worker made a claim for workers' compensation in respect of injuries allegedly suffered by him on 12 December 1997 at or in the course of his employment with the applicant. The worker commenced to receive weekly workers' compensation payments from 12 December 1997.

9 On or about 7 December 1999 the worker lodged with the Directorate a Form 22 purportedly pursuant to s 93D(5) of the Act. In the Form 22, the injury is described as "back, right arm, left arm, right leg", the degree of disability as assessed by a medical practitioner is described as "60%, 20%, 50%, 10%" and the relevant level of disability as not less than 30 per cent. The Form 22 was lodged together with medical reports of Dr R Randall, both dated 30 November 1999. Both were addressed to the worker's solicitors. The first is in the following terms:

"Mr MacPhilomey was injured at work on 12th December 1997.

Now almost two years after the accident he has continual severe lower back pain, loss of sensation to the right aspect of his right leg. A marked reduction in the strength of his left wrist and continual pain in the right wrist.

Mr MacPhilomey is unable to sustain any work for other than a short period of time and he will never be employed again in any work resembling that in which he was employed.

I would put his loss of function as 80%."

10 The material part of the second letter of 30 November 1999 is as follows:

"Assessment of percentage loss in respect to items:-

36A 60%

Right Arm 20% Loss of function

Left Arm 50% Loss of function

Right Leg 10% Loss of function

All these are a direct result of the accident by Mr MacPhilomey at work on 12th December 1997."

11 Under cover of a letter dated 22 December 1999 from the Director to the applicant (copied to its insurer) the Director stated:

"In accordance with s 93(7) of the Workers' Compensation & Rehabilitation Act, the attached Form 23, Notice of Referral of Question of Degree of Disability is referred to you for your attention.

Unless you notify me within 21 days that you object to the level of disability you will be regarded as having agreed to the level of disability.

Should you consider the degree of disability is less than the relevant level claimed by the worker, you are required to complete the Employer's Objection section on the Form 23 and return it within 21 days of receipt of this notification to: [the Director]."

The Director also enclosed a copy of the Form 22 and Dr Randall's medical reports. The applicant signed and returned to the Director the Form 23.

12 The next event the subject of evidence is a preliminary review before a review officer on 30 March 2000. At the preliminary review, the worker requested the application be adjourned sine die to enable him to obtain further medical evidence to support the application. It appears his application for an adjournment was successful.

13 On 22 March 2001 the worker's solicitors requested that the Form 22 application be relisted for a further preliminary review which occurred on 10 April 2001. At that time the worker's representative provided to the applicant's agent a copy of a report of Dr Andrew Harper dated 27 June 2000. The application was listed for a review hearing on 9 August 2001.

14 On 30 July 2001 the Full Court delivered its decision in the test case of Re Monger; Ex parte Dutch & Ors (2001) 25 WAR 96; [2001] WASCA 220. At the review hearing on 9 August 2001 the applicant sought and obtained an adjournment to enable it to file this application.

15 Certiorari is available to quash a decision of the Director made under s 93D of the Act: Ex parte Dutch (supra). Further, the Full Court in Ex parte Dutch considered the function of the Director under s 93D(6) and what was required for a referral under s 93D(5) and (6) of the Act. The leading judgment was delivered by Malcolm CJ, with whose reasons Wallwork and Owen JJ agreed. Malcolm CJ described the function of the Director under s 93D(6) as follows (at par 52):

"In this context, the function of the Director under s 93D(6) is not purely administrative. In other words, it is not his function simply to receive the medical evidence and, if it indicates some level of disability, to act in accordance with s 93D(7) and the other relevant provisions: ... . On the contrary, the Director is required to examine the medical evidence and to make some analysis of it so as to confirm whether it indicates a degree of disability not less than the relevant level, namely, whether it is not less than 16% or not less than 30%:"

16 Further, Malcolm CJ discussed the requirements of "medical evidence" as follows (at par 54):

"I consider that the proper construction of s 93D(6) is that it requires the provision of a medical report which, on its face, states the medical practitioner's opinion as to the degree of disability or contains information which permits a conclusion from the opinion expressed that the medical practitioner has formed a relevant opinion."

17 As to what is meant by "medical evidence indicating an opinion", Malcolm CJ said (at par 43):

"In my opinion, the reference to 'medical evidence indicating an opinion' necessarily requires something to be added to support the expression of an opinion indicating a particular degree of disability for the purposes of s 93D(6). If that were not the case the provision could and should have referred simply to an 'opinion by a medical practitioner' indicating that the degree of disability was not less than the relevant level. Further, the use of the expression 'medical evidence' is significant, as the subsection could simply have referred to 'evidence from a medical practitioner'. However, in my opinion, the use of 'indicating' in the relevant provision requires the Director to make an examination of the medical evidence referred to in support of the opinion to determine whether it was objectively capable of so indicating."

18 His Honour pointed out (at par 44) that the extent of the facts and the reasons to be supplied in a medical report will vary from case to case according to the nature of the disability.

19 No challenge has eventuated to the decision of Ex parte Dutch: Re Monger; Ex parte United Construction Pty Ltd [2002] WASCA 253.

20 The worker expressly conceded that Dr Randall's reports did not satisfy the requirements of s 93D(6) of the Act as explained in Ex parte Dutch. Such a concession was entirely appropriate. Dr Randall in his reports did not refer to any medical evidence upon which he relied to support his opinions. In addition, there is no sufficient indication, save perhaps in relation to Item 36A of Sch 2 to the Act, that the other disabilities are in Dr Randall's opinion permanent disabilities: Ex Parte Dutch, per Malcolm CJ at 28. Accordingly, the applicant is, prima facie entitled to prerogative relief.

21 However, the worker submitted that, notwithstanding the decisions were in excess of jurisdiction, the Court should in the exercise of its discretion refuse relief.

22 The remedy of certiorari is discretionary: Re Smith & West Australian Development Corporation; Ex parte Rundle (1991) 5 WAR 295. Thus, a court may find an administrative act to be unlawful but may decline to intervene. However, it is appropriate that the discretion to refuse relief be exercised with great care: Gudgeon v Black (1994) 14 WAR 158; Wade H W R and Forsyth C F, "Administrative Law" 7th ed, Clarendon Press, Oxford, 1994, 718; Bingham T, "Should Public Law Remedies be Discretionary?" (1991) Pub LJ 64 at 67 - 68.

23 Even in cases in which the Court would normally exercise its discretion in favour of an applicant, it may refuse to do so when there has been undue delay, and prejudice to others who have acted on the assumption that the decision sought to be impugned was valid: Re Smith (supra) at 315, 320, 321; R v Magistrates Court at Lilydale; Ex parte Ciccone [1973] VicRp 10; [1973] VR 122 at 133 - 134.

24 The worker relies on the applicant's delay in making the application, the prejudice occasioned to him by the delay and the availability of an alternative remedy as grounds for refusing relief.

25 Firstly, the ground of delay. It was accepted by the parties that the six month time period for making an application for a writ of certiorari contained in O 56 r 11 of the Rules of the Supreme Court 1971 (WA) does not apply to a decision of the Director under s 93D of the Act: Re Monger; Ex parte WMC Resources Ltd & Anor [2002] WASCA 129; Re Monger; Ex parte United Constructions Pty Ltd (supra). There are differing views in this Court as to whether the six month time period under O 56 r 11 should be applied by way of analogy: Re Monger; Ex parte United Construction Pty Ltd (supra) per Malcolm CJ at par 3, cf Anderson J (with whom Templeman J agreed). I am persuaded by the reasoning of Anderson J (at pars 27, 28 and 30) that it should not. The decisions of the Director under s 93D do not have an adjudicative character, have no discretionary element and do not determine rights. Thus, the policy favouring finality in adjudicatory decisions which determine rights has no application here. Further, the decisions made by the Director provide the jurisdictional underpinning for decisions taken by review officers at subsequent times. In these circumstances I see no good policy reason for applying O 56 r 11(1) by analogy.

26 The applicant filed its application for prerogative relief on 14 August 2001, approximately 20 months after the acceptance of the worker's referral under s 93D(5) of the Act. That is a very considerable delay. The applicant's explanation for the delay is that at all material times until 10 April 2001, when the worker provided a copy of Dr Harper's report, the applicant's insurer was of the opinion that on the medical evidence as it stood the worker's claim could not succeed. Further, it was unclear as to whether the worker was proceeding with the application.

27 After the Full Court decision was handed down on 30 July 2001 the applicant's insurers sought and obtained advice from its solicitors concerning the application of Ex parte Dutch. On 3 August 2001 the insurer received advice from its solicitors to the effect that it appeared the Director had incorrectly accepted the worker's referral because Dr Randall's medical reports did not comply with the Act.

28 It was common cause that the case of Ex parte Dutch was a test case on the proper construction of s 93D(5) and (6) of the Act and that there was widespread knowledge in the industry of the relevant legal issues sometime after late July 2000 when the decision of Thorp v Wanneroo City Council (unreported CM (WA), 49/00, 31 July 2000) was delivered.

29 Although the delay was lengthy, I am not satisfied that it was "undue". At all material times until April 2001 it was unclear whether the worker's claim had any merit. The delay between the filing of the referral and April 2001 was at the worker's request to enable him to obtain expert evidence. Further, based on the worker's submissions, I infer that both parties advisers were aware of the legal issues the subject of the test case in Ex parte Dutch. The applicant moved speedily after that decision was delivered. I would not in the exercise of my discretion refuse to grant prerogative relief solely on the basis of the applicant's delay.

30 I turn to the question of prejudice. The worker says he was prejudiced by the delay. He relies on the fact that from June 2000 he consulted with and obtained medical reports from a number of experts and attended at the preliminary hearing on 10 April 2001. The worker is on a disability pension and has an arrangement with his lawyers whereby, although his legal costs are payable at the conclusion of the claim, he is required to pay the disbursements for which he has had to borrow money.

31 However, the costs will not be wasted. It was accepted by both the applicant and the worker that there is no impediment to the worker filing a fresh application in respect of a disability not less than 30 per cent. It was also accepted by both the applicant and the worker that although the worker would not now be able to claim for a disability not less than 16 per cent (by virtue of s 93E of the Act) it was not the result of any delay in the applicant lodging this application. In these circumstances, I am not satisfied that the worker has been prejudiced to any significant extent by the applicant's conduct. He like many others has been affected by the difficult issues of construction arising under the Act which were addressed, in part, in the test case of Ex parte Dutch.

32 The final ground relied on by the worker is that there was, and continues to be, an alternative remedy. The availability of an alternative remedy is a relevant factor in the exercise of the Court's discretion to grant or refuse prerogative relief: Gudgeon v Black (1994) 14 WAR 158 at 186. The usual alternative remedy is an appeal. In those circumstances the test that is applied is whether an appeal would be an equally convenient, beneficial and effective remedy: Tooth & Co Ltd v Parramatta City Council [1955] HCA 21; (1955) 97 CLR 492 at 498; Gudgeon v Black (supra) at 187. It is also relevant to consider whether the appellate body was unable or ill-equipped to rule on a ground of review, such as lack of jurisdiction, where difficult matters of legal interpretation arise.

33 However, in this case it is not a question of an alternative remedy but rather an alternative forum and decision maker. Review officers have jurisdiction to hear and determine the question whether the Director acted in excess of his jurisdiction under s 93D in referring a dispute to a review officer. This was made clear in the Full Court decision of Ex parte United Construction (supra) which was delivered on 12 September 2002. The worker submits that this result was foreshadowed in Ex Parte Dutch. I accept that to be so. Malcolm CJ said in Ex parte Dutch (at par 85) that the decision of the Director was beyond jurisdiction and incapable of conferring jurisdiction on the review officer. However, the issue was raised again for consideration by the Full Court in Ex parte WMC Resources Ltd (supra) which decision was delivered in May 2002. In that case it was held to be arguable that the Director's non-compliance with s 93D did not render review proceedings valid and that a review officer did not have the jurisdiction to review the decisions of the Director under s 93D of the Act. As a result of the state of uncertainty as to the review officer's jurisdiction and powers, it was appropriate for the applicant to seek prerogative relief in this Court.

34 The worker further submits that even if it was appropriate to commence these proceedings, the matter should now be heard and determined by a review officer. In support of his submission that this Court should decline to grant relief, the worker submitted that the applicant could relitigate the matter before the review officer. That would be so if relief was refused in this Court on the basis that it was equally (or more) convenient, beneficial and effectual for a review officer to determine the issues. However, if the application was dismissed in this Court on the ground that there was no reviewable error of law, the legal issues thereby determined could not be relitigated before a review officer.

35 I accept that in many matters of judicial review, the pleas of res judicata or issue estoppel would not apply because these principles only bind the parties or their privies: Jackson v Goldsmith [1950] HCA 22; (1950) 81 CLR 446; Effem Foods Pty Ltd v Trawl Industries of Australia Pty Ltd (Receivers & Managers Appointed) (in liq) [1993] FCA 342; (1993) 43 FCR 510.

36 I leave to one side the questions whether the Director is a party to the judicial review proceedings and review officers his privies for the purposes of the doctrines of res judicata and issue estoppel. In this case, by reason of the worker's active participation at the hearing in this Court, the doctrines of res judicata and issue estoppel would apply to proceedings before a review officer. A "party" to proceedings in personam means not only a person named as a party as such but also one who intervenes and takes part in the proceedings: Australian Securities Commission v Marlborough Gold Mines Ltd [1993] HCA 15; (1993) 177 CLR 485 at 505; Spencer Bower & Turner, "The Doctrine of Res Judicata" 2nd ed, Butterworths, London, 1969 at 200. Further, even if there were a technical impediment to the application of these principles, it would be an abuse of process for the applicant to attempt to relitigate the legal issues before a review officer: R v Governor of Pentonville Prison; Ex parte Tarling [1979] 1 WLR 1417 at 1422; R v Secretary of State for the Home Department; Ex parte Momin Ali [1984] 1 WLR 663 at 669 - 670; Hunter v Chief Constable of the West Midlands Police [1981] UKHL 13; [1982] AC 529. It is unnecessary to consider what the position would be if prerogative relief was refused because of fairness discretionary considerations, such as undue delay, prejudice, waiver or acquiescence.

37 I return to the question whether relief should be declined because a review officer is also able to consider and determine the legal issues in this matter. To raise the question of the Director's jurisdiction before a review officer involves the same sort of collateral process as judicial review. However, review officers are not required to be legally qualified. Further, if a review officer makes an error of law, a party can only appeal to the Compensation Magistrate: s 84ZN(1). If the Compensation Magistrate makes an error of law there is an appeal, with leave, to this Court: s 84ZW. These factors favour judicial review particularly when difficult legal issues are involved.

38 However it is unnecessary to make a general statement as to the appropriate forum. Prerogative relief should be granted in this case. Having regard to the legal uncertainties as to the proper construction of the Act, it was appropriate for the applicant to bring this application. The medical reports are defective and the Director lacked the requisite jurisdiction under s 93D of the Act. The worker conceded that to be so. In those circumstances, the appropriate order is to exercise my discretion to grant relief so the parties can proceed in the Conciliation & Review Directorate without any further delay.

39 I propose to order that the order nisi be made absolute and that a writ of certiorari be issued directing the Director to remove into this Court for the purpose of being quashed the decisions the subject of the order nisi.

Rehabilitation Act 1981(WA)

Compensation and Rehabilitation Act 1981(WA)

Compensation and Rehabilitation Regulations 1981(WA)

Re Monger; Ex Parte Barminco Pty Ltd [2002] WASC 279 (27 November 2002)

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Re Monger; Ex Parte Barminco Pty Ltd [2002] WASC 279 (27 November 2002)

Legislation Cited (3)

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