MATTER : Application for a writ of certiorari and a writ of mandamus or alternatively a writ of prohibition against ROSS MONGER, Director of the Conciliation & Review Directorate constituted under the Workers' Compensation and Rehabilitation Act 1981

INDUSTRIAL PROGRESS CORPORATION PTY LTD trading as ROOFMART WA

Workers' compensation - Degree of disability - Dispute - Review hearing and determination - New evidence - New claim made for increased level of disability - Res judicata - Applicability - Whether new claim an abuse of process - Prerogative relief - Discretionary considerations

Workers' Compensation and Rehabilitation Act 1981, s 84Z, s 93C, s 93D, 93E

Workers Compensation and Rehabilitation Regulations 1982, reg 19J(1)

The Affected Person (Respondent) : Leonard Cohen & Co

Bird v Commonwealth [1988] HCA 23; (1988) 165 CLR 1

Blair v Curran [1939] HCA 23; (1939) 62 CLR 464

Christmas Island Resort Pty Ltd v Geraldton Building Co Pty Ltd (No 5) (1997) 140 FLR 452

McNair v Mayne Nickless Ltd t/as Metropolitan Security Services (1997) 17 WAR 191

Midgley v Monger [2000] WASC 291

R v Judges of FCA & Adamson; Ex parte WA National Football League (Inc) [1979] HCA 6; (1979) 143 CLR 190

Re Monger; Ex parte Ivey [1999] WASC 250

Thomas v Arimco Mining Pty Ltd (2000) 24 SR(WA) 142

Toolan v Metropolitan (Perth) Passenger Transport Trust [2001] WASCA 131

Western Australia v Commonwealth [1975] HCA 46; (1975) 134 CLR 201

Williams v Spautz [1992] HCA 34; (1992) 174 CLR 509

Yat Tung Investment Co Ltd v Dao Heng Bank Ltd [1975] AC 581

1 ANDERSON J: This is an application for a writ of certiorari and a writ of mandamus or, alternatively, a writ of prohibition against the Director of the Conciliation & Review Directorate constituted under the Workers' Compensation and Rehabilitation Act 1981. At the conclusion of argument on 20 July 2001, the application was dismissed. The Court announced that reasons would be handed down in due course.

2 The application is by an employer which was respondent to a claim made under the Act by one of its employees who may be referred to as the claimant.

3 For present purposes, we can take the facts to be that the claimant sustained an injury by accident during the course of his employment on 28 October 1997. On that date, he experienced an onset of lower back pain which progressed down the right lower limb, radiating to the ankle. These symptoms deteriorated over time and he became unfit for his work as a metal worker. There was medical opinion to the effect that he had suffered a spinal disc injury in the form of a "significant posterior annular tear at L5/S1".

4 The employer did not dispute the claimant's claim that he had suffered an injury to his back which was compensable, but a dispute did arise as to the degree of disability. This dispute arose in the context of the restrictions which are contained in the Act on the awarding of common law damages: s 93C. Damages may not be awarded unless certain requirements are met: s 93E. If the degree of disability is less than 30 per cent, damages can only be awarded if "the worker has a significant disability and elects, in the prescribed manner, to retain the right to seek damages ... ": s 93E(3)(b). A significant disability is one which is "agreed or determined" to be "not less than 16 per cent": s 93E(4).

5 We can take it that the claimant made an election in the prescribed manner to retain his right to seek damages and that the employer did not agree that the claimant had a "significant disability". The forms and papers with respect to that aspect of the matter are not before us. As the employer did not agree that the claimant had a significant disability, that question had to be determined and these proceedings are concerned with that aspect of the matter; ie, the determination process.

6 The determination process began when the claimant exercised his right under s 93D(5) to "refer the question to the Director" by lodging with the Conciliation & Review Directorate a Form 22 - that is, the form prescribed by reg 19J(1) of the Workers Compensation and Rehabilitation Regulations 1982. The Form 22 was lodged on 1 December 1999. The form calls for a description of the injury and a statement by the claimant as to the degree of disability for which the claimant contends. In the form which he lodged, the claimant contended for a "relevant level of disability" of not less than 16 per cent and supported that claim with medical reports. The next step was for the Director to issue a Form 23, which he did on 10 December 1999. This is the paper by which the Director notifies the employer that a question has been referred to the Director as to the worker's relevant level of disability.

7 In this case, the Form 23 notified the employer that the claimant claimed a degree of disability of 25 per cent and that this was a "relevant level of disability" of "not less than 16 per cent" and called on the employer to notify the Director within 21 days whether the employer considered that the claimant's degree of disability was less than the relevant level. This the employer did on 14 December 1999 by signing the bottom section of the Form 23 in a designated space and returning the form to the Director. It was this which formally gave rise to a dispute: s 93D(8). Acting pursuant to his powers under s 84Z, the Director made arrangements as to the review officer who was to deal with the dispute. The matter was referred to the review officer, Mr Whitford. There was a hearing called a "preliminary review" on 1 March 2000 and a full review hearing on 28 July 2000. Medical evidence was presented on both sides. In some of the medical reports there were references to "psychological disability" and to "depression and anxiety" and to "psychiatric disability".

8 It appears from Mr Whitford's record of proceedings that he accepted submissions made on behalf of the employer to the effect that "the psychological/psychiatric overlay should be excluded from the assessment as liability has not been accepted in that regard". See record of proceedings of review, par 64. What the claimant's counsel had to say about this does not appear. It is, however, clear that Mr Whitford's determination of the relevant level of disability excluded so much of the disability as may have been related to psychiatric or psychological disorders.

9 If I might respectfully say so, I do not understand the legal basis for this approach. It would seem to me that a psychiatric disorder which is a consequence of a compensable back injury is as much a part of that injury as all of the other conditions and symptoms which follow upon the injury. It is true that Sch 2 to the Act, which is a table of compensation payable with respect to specific injuries, makes no reference to psychiatric or psychological disorders consequent upon physical injury. But Sch 2 makes no reference to symptomatology at all, not even to pain. This cannot mean that assessments are to be made without taking into account the disabling effect of symptoms or morbid conditions arising from the injury. There is nothing in s 93D(2) which supports the proposition that if a sequela is not referred to in Sch 2, it must be excluded from the assessment.

10 Mr Whitford's assessment was that the claimant did have a relevant level of disability of not less than 16 per cent and he sent to the Director a determination to that effect on 22 August 2000. It is accepted on both sides that the assessment upon which the determination was based did not include any degree of disability contributed to by the psychological or psychiatric disorders referred to by the doctors. There was no attempt to measure or quantify the psychiatric or psychological disorders as part of the claimant's degree of disability. This is clear enough from Mr Whitford's record of review in which he says at par 82:

" ... I find that the weight of medical evidence supports a determination that the applicant suffers a disability of not less than 16%. This assessment is achieved in the absence of consideration of psychological or psychiatric overlay ... "

11 Meanwhile, the claimant had been seen by a consultant psychiatrist, Dr Law. This consultation was on 3 July 1999, after the Form 22 had been lodged at the Directorate, but before the review hearing on 28 July 1999. A report was not forthcoming from Dr Law until 18 August, after the review hearing, but a few days before Mr Whitford handed down his determination. It is a lengthy report and for present purposes it is sufficient to reproduce this part of Dr Law's diagnosis:

"Mr Win Pe is suffering from a moderately severe mixed anxiety-depression disorder. There are also periodic suicidal thoughts and feelings ... the anxiety-depressive disorder is related to, and secondary to his chronic back pain problem, which had resulted from the back injury sustained at the work accident on the 28 October 1997."

12 As to the level of disability, it was Dr Law's opinion that:

"The percentage of his permanent disability would be the sum of his physical, subjective chronic pain, and diagnosed psychiatric-psychological disorders. The current indication is that his disability exceeds 30% if all the three areas are considered."

13 On 28 August 2000, a second Form 22 was lodged on behalf of the claimant in respect to the injury by accident. In this Form 22, the description of the claimant's disability was "back injury, psychiatric injury" and the relevant level of disability claimed was "not less than 30 per cent". The Director received this Form 22 and sent out a Form 23 on 1 September 2000 and, on return of that Form 23 by the employer, the Director decided to refer the matter for review by Mr Whitford on the basis that a dispute pursuant to s 93D(8) had arisen. This dispute proceeded to a preliminary review hearing on 31 October 2000 before Mr Whitford, but before any further step could be taken to conclude the review the proceedings which are now before this Court were initiated by the employer. As I have said, the relief which is sought is for the issue of a writ of certiorari and a writ of mandamus or, alternatively, a writ of prohibition. The certiorari which is sought seeks a quashing of the Director's decisions to accept the second Form 22 and to send out a second Form 23, and the decision to treat the return of the second Form 23 as giving rise to a dispute for the purposes of Pt IIIA of the Act. The mandamus which is sought is against the Director commanding him to "reject or dismiss the second Form 22". The prohibition which is sought is against the Director prohibiting him from "determining the second Form 22".

14 The common basis upon which this relief is pursued is expressed in the grounds of application in the following terms:

"The Director should have rejected the second Form 22 on the basis that a determination of the claimant's level of disability had already been made under the Act."

15 That is ground 7 of the application for certiorari and ground 8 of the application for mandamus and prohibition. It is really the only ground upon which relief is sought.

16 The broad proposition which appears to underlie the application is that res judicata in its widest sense should apply to reviews conducted under Pt IIIA of the Act. I would doubt the validity of that proposition. The principle upon which res judicata rests is explained in the judgment of Wigram V-C in Henderson v Henderson [1843] EngR 917; (1843) 3 Hare 100 at 115 where that Judge said:

" ... where a given matter becomes the subject of litigation in, and of adjudication by, a court of competent jurisdiction, the Court requires the parties to that litigation to bring forward their whole case, and will not (except under special circumstances) permit the same parties to open the same subject of litigation in respect of matter which might have been brought forward as part of the subject in contest, but which was not brought forward, only because they have, from negligence, inadvertence, or even accident, omitted part of their case. The plea of res judicata applies, except in special cases, not only to points upon which the Court was actually required by the parties to form an opinion and pronounce a judgment, but to every point which properly belonged to the subject of litigation, and which the parties, exercising reasonable diligence, might have brought forward at the time."

17 A review and determination by a review officer under Pt IIIA of the Workers' Compensation and Rehabilitation Act that a worker's relevant level of disability is not less than 16 per cent at a particular time might be difficult to equate to a final judgment of a court of competent jurisdiction with respect to a subject of litigation. In the first place, I can see nothing in Pt IIIA which would support the notion that a review hearing to resolve a dispute arising from a worker's election to retain the right to recover common law damages on the ground that he has a level of disability of not less than 16 per cent is intended to be finally binding as to the degree of disability. On the contrary, it seems plain that a determination or agreement that a worker has a relevant level of disability of not less than 16 per cent may be followed by a determination or agreement that the relevant level of disability is not less than 30 per cent. See ss 93E(8), (9) and (10).

18 Those provisions are clearly intended to provide for an adjustment to the rights of the claimant worker in the event that his relevant level of disability is found or agreed to be not less than 30 per cent after there has been either an agreement or a determination that his relevant level of disability is not less than 16 per cent. Whilst it may be argued that these provisions apply only to a case in which there may have been a deterioration in the worker's condition, and not to a case where further evidence has come to light about the degree of disability existing at the time of the first review, the provisions at least serve to underline the difference between the processes which are required to take place under Pt IIIA of the Act on the one hand and the litigation of a dispute to finality in a court of competent jurisdiction on the other. Whilst finality is a primary objective in ordinary litigation, it is not so easy to see that it is a primary objective in the assessment of levels of disability under Pt IIIA of the Workers' Compensation and Rehabilitation Act.

19 There is no need to come to a final conclusion on the point in this case. This application should be disposed of on discretionary grounds. When the hearing took place before Mr Whitford on 28 July 1999, Dr Law's report was not available. Perhaps it should have been, but the fact is it was not. I would not be prepared, in those circumstances, to exercise a discretion to grant prerogative relief having the effect of shutting the claimant out of whatever rights may arise from the fact that he now has evidence that his relevant level of disability is, in truth, not less than 30 per cent. I see no real injustice to the employer in allowing a second determination of the degree of disability sustained by this claimant, to whom additional medical evidence has now become available. As I have said, there is nothing in the Act which precludes it.

20 This is not to say that there may not be cases in which it would be an abuse of process for multiple determinations to be sought. This case is not such a case, in my opinion. As there is nothing in the Act which positively precludes a second review hearing and no injustice will be caused to the employer by a second review hearing, and as substantial injustice may be caused to the claimant by stopping the second hearing, I am not persuaded prerogative relief should be granted.

21 These are my reasons for joining in the decision of the Court at the conclusion of argument to discharge the orders nisi.

22 McKECHNIE J: The reasons given by Anderson J completely express my reasons for joining in the decision to discharge the orders nisi.

23 ROBERTS-SMITH J: On 20 July 2001 the Court gave judgment in this matter discharging the order nisi. Anderson J has set out his reasons in this matter. I agree with those reasons and have nothing further to add.