MATTER : Application for Writ of Certiorari and Writ of Mandamus, Alternatively, a Writ of Prohibition against ROSS MONGER Director of the Conciliation & Review Directorate constituted under the Workers' Compensation and Rehabilitation Act 1981

Workers' compensation - Dispute as to degree of disability - Decision by Director of Conciliation & Review to refer dispute to review officer - Initial medical evidence insufficient - Effect on jurisdiction of Director and review officer - Whether review officer bound to inquire into validity of Director's referral

Practice and procedure - Writ of certiorari - Time for application - Whether time limit applicable - Whether Director of Conciliation & Review a "court or tribunal" within O 56 r 11(1)

Workers' Compensation and Rehabilitation Act 1981, s 84Z, s 84ZN, s 84ZW, s 93D

Workers' Compensation and Rehabilitation Regulations 1982, reg 19J

Appeal from decision of compensation magistrate allowed

Midgley v Ross E Monger, Director Conciliation & Review Directorate [2000] WASC 291

Re Crosser; ex parte Rutherford & Anor [2001] WASCA 422

Re Monger, ex parte Industrial Progress Corporation Pty Ltd [2001] WASCA 281

Re Monger; ex parte Cargo Enterprises Pty Ltd [2001] WASC 19

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

Re Monger; ex parte Swan Portland Cement Ltd [2001] WASCA 321

Re Monger; ex parte Western Power Corporation [2000] WASC 271

Re Skirving; ex parte Forward, unreported; FCt SCt of WA; Library No 980737; 18 December 1998

Re Wong & Ors; ex parte Hays, unreported; FCt SCt of WA; Library No 980575; 5 October 1998

1 MALCOLM CJ: I have had the advantage of reading in draft the reasons to be published by both Anderson J and Fitzgerald AJ. I agree with their Honours' conclusions that prerogative relief by way of certiorari should be refused, but the appeal against the decision of the learned Compensation Magistrate should be allowed, the decision of the learned Magistrate dismissing the appeal from the Review Officer should be quashed and substituted by an order allowing the appeal, on the basis that the decision of the Director to refer the dispute concerning the degree of the appellant's disability was beyond jurisdiction and incapable of conferring jurisdiction upon the Review Officer. I particularly wish to express my agreement with the reasons to be published by Anderson J as well as the additional reasons to be published by Fitzgerald AJ.

2 In my opinion, while the Director is not a "tribunal" within the meaning of O 56 r 11 of the Rules of the Supreme Court 1971 so that the time limit in that rule does not apply directly, it would be appropriate as a matter of discretion to apply the provisions to the present case by way of analogy. In my opinion, while certiorari should be refused as a matter of discretion on the merits of the case, it also follows that in this particular case no useful purpose could be served by granting it. If it is wrong to conclude that the time limit does not apply, I agree with Anderson J that it would be appropriate to refuse to extend the time within which to make the application.

3 I note that by a letter dated 17 June 2002, the solicitors for the respondent requested that these proceedings be listed before a bench of five Justices in order to argue that the decision in Re Monger; ex parte WMC Resources Ltd [2002] WASCA 129 should be reviewed insofar as the majority in that decision wrongly concluded that the Director of the Conciliation and Review Directorate was not a "tribunal" within the meaning of O 56 r 11 of the Rules of the Supreme Court. Further, it was argued in Re Monger; ex parte WMC Resources Ltd that, even if O 56 did not apply in terms, the six-month time limit should be applied by analogy: cf Re Smith; ex parte Rundle (1991) 5 WAR 295 at 319 per Malcolm CJ. The basis for the request in this respect was that this submission had not been considered by the majority in Re Monger; ex parte WMC Resources Ltd, (supra). In my opinion, no reason has been advanced to depart from the decision of the majority.

4 WALLWORK J: I agree with the reasons for judgment and the conclusions of Anderson J and Fitzgerald AJ.

6 ANDERSON J: There is before the Court (1) an appeal by an employer under s 84ZW of the Workers' Compensation and Rehabilitation Act 1981 from a decision of a compensation magistrate and (2) an application by the employer for an extension of time under O 56 r 11(1) of the Rules of the Supreme Court within which to apply for an order for a writ of certiorari directed to Mr Ross Monger, the Director of the Conciliation and Review Directorate established under the Act, and (3) a motion for orders absolute in the first instance in respect to the application for certiorari. Both the appeal and the application for certiorari arise out of the same proceedings involving a worker, Mr Santos, and an employer, United Construction Pty Ltd.

7 The appeal by United Construction from the compensation magistrate's court will be dealt with in more detail presently. The application for prerogative relief seeks to have quashed the following decisions of the Director:

• the decision made by the Director on 24 December 1999 to accept a referral from Mr Santos under s 93D(5) of the Act;

• the decision made on the same date to notify the employer, United Construction, of the worker's referral pursuant to s 93D(7);

• the decision made on about 11 January 2000 that a dispute pursuant to s 93D(8) had arisen for the purposes of Pt IIIA; and

• the decision made about 14 days later that the question of the worker's degree of disability be referred pursuant to s 93D(10) for resolution by a review officer.

The initial injury to the ankle and claim for compensation

8 Mr Santos was employed by United Construction as a rigger and sustained an injury by accident in the course of his employment on 1 February 1995. He made an immediate claim for weekly payments of compensation, and in the documents which were filled in at that time he described the injury by accident as:

"Foot caught against block of wood and pipe struck leg hurting ankle as well."

9 The nature of the injury was said to be "fracture, contusion" and the location was said to be "right shin and right ankle".

10 There was no fracture, the injury was not serious and Mr Santos returned to work after two days.

11 Shortly after returning to work, Mr Santos commenced to complain of pain in the right groin and hip. There is evidence that pain emanating from the hip is often felt in the groin. He stopped work on 28 February 1995 and was diagnosed as having avascular necrosis of both hips. Only the right hip and groin were painful. The condition was described in one medical report (Mr Brash, 27 June 2000) as "pre-existing, progressive, naturally occurring, bilateral avascular necrosis of both hips".

The second claim for compensation - "aggravation" of pre-existing hip condition

12 On 3 August 1995, six months after Mr Santos had fully recovered from his ankle and calf injuries and had ceased to be paid compensation, he submitted another claim for compensation, describing his injury as: "Injury to right foot, extending to right hip". He nominated the location of these injuries as "right foot and hip". The employer's insurer promptly wrote to him denying liability for any hip problems. Mr Santos did not work for three years after stopping work on 28 February 1995, and during that time (in April 1997) he had a successful right total hip joint replacement. He resumed work on 21 February 1998 as a crane driver, but has not worked since July 1999.

13 As indicated earlier, the initial injury to the right ankle and calf was not serious and recovered quickly. Mr Santos' second claim was based on the incapacity for work caused by the condition of the right hip, his case being that although the work accident did not cause the avascular necrosis, it lighted up this condition, causing it to become painful. The physiology is not explained in any detail in the medical information before the Court, but "aggravation" of the hip condition in the accident is a conclusion which was favoured by a medical specialist, Mr Wright, who said in a report of 12 July 1999:

"In view of the fact that he has suffered from avascular necrosis of both femoral heads, it is more likely than not that the avascular necrosis developed from causes unrelated to the accident. The accident on 1 February 1995 would appear to have caused some aggravation of the underlying avascular necrosis, rendering it symptomatic. It is unlikely that it would have accelerated the avascular process. It is possible that without an injury to the hip his right hip would have remained asymptomatic and he could have carried on working."

14 No doubt there will be the usual evidentiary difficulties with respect to causation if the damages action proceeds. When Mr Santos first reported the accident and described his injuries, he made no mention of a hip injury and in the first medical report there is no mention of pain in the region of the hip or groin. These potential difficulties with respect to proof of causation do not concern us at present.

The referral to the Director under s 93D(5)

15 Mr Santos took no step to pursue his claim after the employer's insurer denied liability with respect to the hip condition.

16 In October 1999 the Workers' Compensation and Rehabilitation Act was amended in order to limit the circumstances under which Courts in Western Australia may award common law damages in work accident cases. The effect of the amendments is that the Courts may not award damages in work accident cases contrary to the provisions of Div 2 of Pt IV of the Act which provide, amongst other things, 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.

17 Mr Santos wished to retain the right to pursue common law damages and in order to do so he was required by s 93D(5) of the amended Act to refer the question of his degree of disability to the Director of Conciliation and Review. He purported to do this on 13 December 1999 by lodging with the Conciliation and Review Directorate a Form 22 "Referral of question of degree of disability" in accordance with reg 19J of the Workers' Compensation and Rehabilitation Regulations 1982. He described his injury as a "right leg injury" and the date of it as 1 February 1995. He claimed a degree of disability of 60 per cent.

"(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, the degree of disability is not less than the relevant level."

19 With his Form 22, Mr Santos lodged a letter written by his medical practitioner, Dr Hewett, in purported compliance with the requirement to produce "medical evidence from a medical practitioner" and in this letter Dr Hewett expressed the opinion that "the degree of permanent whole body disability is exactly 60 per cent".

The failure to comply with s 93D(6) - "medical evidence"

20 The first important question is whether Mr Santos had succeeded in complying with the requirements of s 93D(6). This question arises in view of the decision of this Court in Re Monger; ex parte Dutch [2001] WASCA 220; (2001) 25 WAR 96 in which the Full Court (Malcolm CJ, Wallwork and Owen JJ) held that the medical evidence referred to in s 93D(6), that is, medical evidence submitted by the worker with his referral to the Director, must comply with certain criteria and will not be "medical evidence ... indicating that, in the medical practitioner's opinion, the degree of disability is not less than the relevant level" within the meaning of s 93D(6) if the evidence does not indicate a degree of permanent disability in accordance with s 93D(2), a rather complex subsection prescribing the manner in which a degree of disability of the worker is to be assessed.

21 Although a Court of five Judges has been convened for the hearing of this appeal, no party has submitted that the Court should reconsider the correctness of the decision in ex parte Dutch and we should therefore proceed on the basis that the decision represents the law. It was held in that case that an opinion as to the degree of disability which is expressed in terms of a percentage function of the whole body, or which does not say that the disability is permanent, is not evidence of a degree of disability in accordance with s 93D(2). It was also held that a referral from a worker which is accompanied by non-compliant medical evidence does not confer any "jurisdiction" on the Director and a decision by the Director, nevertheless, to refer the question of the degree of disability to a compensation review officer for resolution is "incapable of conferring jurisdiction on the review officer" (per Malcolm CJ at par 85).

22 There is no contest in this case that Dr Hewett's medical report submitted with the Form 22 failed to comply with the requirements of s 93D(6) as those requirements were defined in ex parte Dutch. The medical report of Dr Hewett is not materially different in form from the medical report held in ex parte Dutch to be non-compliant.

23 Applying ex parte Dutch, it follows that the Director obtained no power, on the lodgment of this Form 22, to proceed under the dispute resolution provisions to have the question of Mr Santos' degree of disability resolved. A prompt application by the employer for appropriate prerogative relief with respect to the Director's decision to accept the referral and notify the employer under s 93D(7) could not have been refused.

Time limit for prerogative relief - O 56 r 11

24 One difficulty facing the employer in this case is that the application for certiorari was not made promptly. The worker's referral was lodged at the Conciliation and Review Directorate on 13 December 1999 and endorsed by the Director on 24 December 1999. This endorsement is said to mark the Director's "acceptance" of the worker's referral. As I said at the beginning of this judgment, the application seeks to quash the Director's decision to accept the worker's referral and the three subsequent decisions, including the decision made on 24 December to notify the employer in accordance with s 93D(7). The application for judicial review was filed in this Court on 29 June 2000, which was six months and five days after the two impugned decisions of 24 December.

25 A question arises whether this aspect of the application for prerogative relief is caught by O 56 r 11(1) of the Rules of the Supreme Court which provides:

"An order nisi for a writ of Certiorari to remove a judgment, order, conviction or other proceeding of an inferior court or tribunal, or of a magistrate or justices, for the purpose of its being quashed, shall not be granted unless the application for the order is made within six months after the date of the judgment, order, conviction or other proceeding, or ... the delay is accounted for to the satisfaction of the Court to which the application is made."

If the decision of the Director to accept the referral and notify the employer of the referral are "... proceeding(s) of an inferior court or tribunal ..." within the meaning of that phrase in O 56 r 11(1), the time limit applies and an application for certiorari will not be entertained by the Court except by leave.

26 In Re Monger; ex parte WMC Resources Ltd [2002] WASCA 129, in a decision with which Scott J agreed but Murray J disagreed, I held that in performing the function of accepting a referral pursuant to s 93D(6) the Director was not a "tribunal" within the meaning of O 56 r 11(1) and the time limit prescribed in that rule of Court did not apply. My reasons for so concluding are set out in pars 76 and 77 of that judgment and there is not much I wish to add, save the following.

27 I cannot accept that O 56 r 11(1) is intended to apply wherever the writ of certiorari will run, that is, to every reviewable decision of a public official. So to hold involves the proposition that this Court intended to restrict its jurisdiction to supervise administrative action by severely restricting the time within which unlawful administrative action generally may be applied for as of right. I see no good reason for such a wide restriction.

28 On the other hand, there is good reason to place a time limit on the right to challenge a determination of an adjudicative body which has resolved a dispute. There are policy reasons why such a decision should be treated as final after a relatively short time. A decision of the Director to accept a worker's referral and forward notification of it to the employer does not resolve any dispute, any more than the acceptance in the Central Office of a writ for sealing resolves a dispute. The effect of the Director's decision is merely to allow the process to start, by which a dispute may be resolved. The Director's notification to the employer pursuant to s 93D(7) merely puts the employer to his election whether to contest the question of the level of the worker's disability. He may or may not wish to do so. If he does, the dispute resolution provisions in the Act are invoked and the dispute will be resolved by someone other than the Director on material not necessarily considered by the Director. I cannot for myself see therefore that a decision to accept the referral and notify the employer of it is an adjudicative function. Likewise, a decision of the Director to reject a referral on the ground that it is non-compliant does not have an adjudicative character. There is no discretion to reject a referral which meets the objective requirements of s 93D(6). Further, rejection on the ground of non-compliance does not determine rights. The worker remains at liberty to present another Form 22 or supply additional medical evidence. If he or she is unable to come up with the requisite medical evidence or to do so in time, it is the statute which defines the consequences in terms of rights, not any decision of the Director.

29 I remain of the opinion that O 56 r 11(1) does not apply to the decision of the Director to accept or, for that matter, to reject a referral made pursuant to s 93D(5).

30 Having said all of that, I must also say that I think the question whether or not the time limit in O 56 r 11(1) applies to decisions of the Director is of little practical importance in this case. In accordance with ex parte Dutch, we must proceed on the basis that the Director had no jurisdiction to accept the worker's referral. From this it must follow that the Director's subsequent decisions, which were made as if he had received proper medical evidence with the referral, are liable to be quashed. The question whether those decisions are an absolute nullity ("a mere nothing" and "waste paper"), or are decisions which are only voidable in the sense that they are effective for their intended purpose until quashed, is a question which need not be debated (but see the informative discussion in Aronson and Dwyer "Judicial Review of Administrative Action" (2nd ed pp 496 and following)). Because each decision of the Director is liable to be quashed, and because the application for prerogative relief in respect to the last of those decisions was made well within six months, there are no time problems. As Fitzgerald AJ has pointed out in his judgment, a draft of which I have read, if the last decision is quashed, there is no purpose in quashing the earlier decisions. I would add that, conversely, if prerogative relief were to be refused in respect to the last decision - the Director's decision to refer the question to the review officer - there would be no point in quashing his earlier decisions. There is, therefore, no point in considering whether leave should be given under O 56 r 11(1) to apply out of time to quash the two decisions made on 24 December 1999.

31 I turn now to the question of whether the Director's decision to refer the dispute to a review officer should be quashed. I think this depends on whether United Construction's appeal under s 84ZW succeeds. If it does, as Fitzgerald AJ once again has pointed out, there is no purpose in quashing the referral to the review officer. It is therefore convenient to turn to that question.

The appeal to and from the compensation magistrate's court

32 We do not have much information about the course of proceedings immediately following the Director's determination on about 11 January 2000 that a dispute had arisen. However, it is plain that the dispute was not resolved and the Director purported to exercise his power under s 93D(10) to refer the question for resolution. The question was referred to a review officer, Mr David St George, pursuant to s 84Z and a review hearing was conducted on 7 December 2000. On 12 December 2000 the review officer ordered that the worker "has a relevant level of disability of not less than 16 per cent ...". The employer appealed from that decision to the compensation magistrate's court pursuant to s 84ZN(2) which provides:

"A party to the proceedings who is dissatisfied with a decision or order of the review officer may, where a question of law is involved, appeal to a compensation magistrate's court against the decision or order."

33 There were seven grounds of appeal in the compensation magistrate's court, the first six of which challenged the review officer's approach to the medical evidence and to the way in which he went about assessing the degree of disability, and those grounds of appeal can be put to one side for the moment.

34 By ground 7 it was pleaded, in effect, that the review officer erred in law in assuming jurisdiction to embark upon the review. The employer argued that the review officer was without jurisdiction to conduct the review because the proceedings antecedent to the review (that is, the Director's decisions) were invalid. The single ground of invalidity was said to be that which has already been canvassed above, namely, that the worker's referral to the Director, that is, the referral under s 93D(5), was impermissible because Dr Hewett's report fell short of what was required by s 93D(6). As a result, the Director obtained no jurisdiction, his actions/decisions were of no effect and there was therefore no proper basis upon which the review officer could conduct a review.

35 This ground of appeal was dismissed by the compensation magistrate, Mr Packington, who held, consistently with previous decisions of the compensation magistrate's court, that a review officer to whom a question has been referred for review by the Director has no authority to inquire into the validity of the Director's decisions, but is obliged to conduct the review. The compensation magistrate said:

"Apart from the fact that it was never put to the review officer that he should decline to proceed for want of jurisdiction, this Court, in Thorpe v Wanneroo City Council, unreported CM-49/00, held that a review officer to whom a question has been referred by the Director under s 93D(10) has no power to consider the validity of the Director's acceptance of the question under s 93D(5)."

36 As I understand his judgment, Mr Packington held that because it was not open to the review officer to review the decisions of the Director, it followed that even although the dispute might have been invalidly referred for review, the review officer had not made an error of law in proceeding with the review.

37 I regret to say that I am unable to agree with this conclusion.

38 The question whether it is open to the review officer to consider the validity of the Director's referral and hence determine the question of his own jurisdiction, even though the point was not raised before him, is a question of statutory construction, the question being whether parliament intended the review officer to have the authority to review the decisions of the Director, including the very first decision of the Director to accept the worker's referral under s 93D(5).

39 There is a respectable argument that parliament had no such intention, so that a failure or refusal of a review officer to go behind the Director's referral involves no error. Both the Director and the review officers are officers of the Workers' Compensation and Rehabilitation Commission: s 104A(2). Review officers will normally be public servants, acting from time to time as review officers: s 84Z, s 177. They will normally be of lesser rank in the public service than the Director and will normally be without legal qualifications. It may be thought unlikely that parliament intended therefore that the review officer is the appropriate forum in which to question the legality or validity of the decisions of the Director according to principles of administrative law, especially when regard is had to those sections of the Act which require the review officer to commence the review promptly (s 84ZA(1)), to act "fairly, economically, informally and quickly" in the conduct of the review (s 84ZA(2)) and to act "according to the substantial merits of the case without regard to legal technicalities or legal forms or precedent" (s 84ZA(3)).

40 Regard may also be had to the strongly-worded privative clause in s 84ZN(1) which provides:

"Subject to this section, a decision or order of a review officer is not open to question or review in any court, and proceedings by or before a review officer may not be restrained by injunction, prohibition, or other process or proceedings in any court or by removal by certiorari or otherwise in any court."

Standing alone, that section would suggest that parliament intended that decisions of review officers which were made without jurisdiction should be regarded as valid: Deputy Commissioner of Taxation v Richard Walter Pty Ltd [1995] HCA 23; (1994) 183 CLR 168 per Brennan J at 193 - 195.

41 Attractive as those arguments may be, I think they must give way to the clear recognition in the Act that although he may be less than fully qualified to do so, the review officer is required to confront all questions of law arising in the review. There are arrangements made in the Act to have such questions dealt with by tribunals competent to deal with them should the review officer so decide or the parties so elect. By s 84ZE, it is provided that a party is entitled to be represented by a legal practitioner in proceedings before a review officer if the review officer is of the opinion that a question of law is raised or is likely to be raised or argued at the proceedings. By s 84ZM, it is provided that where a question of law arises in the review hearing, or the review officer believes that it is appropriate to do so because of the complexity of issues, the officer may refer the matter to a compensation magistrate's court for determination. By s 84ZU, it is provided that when a question of law arises in any proceedings before a compensation magistrate's court, including proceedings referred under s 84ZM, the court may state a case for the decision of the Supreme Court on that question. Furthermore, there are the appeal provisions which allow for appeals on questions of law to this Court if necessary.

42 I think that all of these provisions reveal a legislative intention that all questions of law arising in the review are to be presented for the consideration of the review officer in the first instance and thereafter dealt with in the manner provided.

43 In my opinion, a question concerning the validity of the Director's referral of the dispute to the review officer is a question of law within the meaning of s 84ZE(b). Furthermore, although the matter may not have been raised in argument before the review officer, and the review officer did not positively state that he had jurisdiction, the review officer must be taken to have formed the opinion that the matter was properly referred to him and that he did have jurisdiction to proceed with a review hearing and determine the dispute and, in that sense, he must be taken to have decided that he had the power to do so: Clisdell v Commissioner of Police (1993) 31 NSWLR 555 per Sheller JA at 560. Therefore, the appeal challenging the review officer's decision to proceed with the review involves a question of law within the meaning of s 84ZN(2). The compensation magistrate's decision to uphold the review officer's decision was itself a decision on a question of law within the meaning of s 84ZW and, hence, appealable by leave to this Court.

44 On the authority of ex parte Dutch, the decision of the Director to refer the dispute concerning the degree of Mr Santos' disability was beyond jurisdiction and incapable of conferring jurisdiction on the review officer. The appeal against the review officer's decision to resolve the dispute should have been allowed by the compensation magistrate and the decision of the magistrate not to allow the appeal was erroneous and the appeal to this court must be allowed.

45 As I said earlier, I regret having to come to this conclusion because it seems to me that considerations of fairness and convenience are strongly in favour of holding that the review officer's decision as to the level of Mr Santos' disability should be allowed to stand, save to the extent that it may be attacked on its merits. The review officer expressly held that his decision as to the degree of Mr Santos' disability depended on the evidence of the orthopaedic surgeon, Mr Wright, whose evidence the review officer preferred to the evidence of another orthopaedic specialist, Mr Brash. Dr Hewett's report, which was provided only to support Mr Santos' initial referral to the Director under s 93D(s), was not taken into account by the review officer. Although it was made available to him and he obviously read it, the review officer made it clear that he paid no regard to it in resolving the dispute, his main reasons being firstly that Dr Hewett was not a specialist and secondly Dr Hewett had seen Mr Santos only once.

46 I think that in the general run of cases, the initial medical report provided pursuant to s 93D(6) probably will play no significant role in the ultimate decision which is made as to the worker's degree of disability. Other evidence will usually be relied on. If I may say so, it seems inconvenient that the validity of the review proceedings should be made to depend on the quality and content of the report provided under s 93D(6).

47 I return now to the question whether United Construction should have prerogative relief. I agree with Fitzgerald AJ that prerogative relief should be refused because no purpose is to be served by granting it. If I am wrong in concluding that the time limit prescribed in O 56 r 11(1) does not apply to applications for certiorari to quash decisions of the

Director because the Director is not a "tribunal", then I would refuse an extension of time to bring the application.

48 There are other points which were argued on both sides, but there is no need for me to consider them in the view which I take of the matter. Fitzgerald AJ has dealt with some of these points. I am content to say that I entirely agree with what he has written.

49 TEMPLEMAN J: I have had the advantage of reading the draft reasons of Anderson J and Fitzgerald AJ. I agree with their Honours, for the reasons they give respectively, that the prerogative relief should be refused and that the appeal from the decision of the learned Compensation Magistrate should be allowed.

50 FITZGERALD AJ: On 1 February 1995, Victor Manual Santos accidentally injured his right foot and lower leg at work in the course of his employment by United Construction Pty Ltd. He has since been paid compensation under the Workers' Compensation and Rehabilitation Act 1981. The present dispute concerns his claim for common law damages. Mr Santos has commenced a District Court action in which he alleges that the accident in which he was injured "was caused by the negligence or other tort" of United Construction: s 93B(1)(a). Prior to his accident, his right hip was subject to a "disease" as defined in s 5 of the Act. His action includes a claim for damages for an alleged aggravation of the disease in his right hip from the injury that he sustained in the accident.

51 By subs 93E(3), (4) and (5), common law damages can only be awarded to Mr Santos in respect any disability caused by United Construction's alleged tort if it is agreed or determined that the degree of that disability is not less than a specified percentage (the "relevant level"). Section 93D contains detailed provisions for the determination of whether an injured worker's degree of disability is not less than the "relevant level".

(a) a personal injury by accident arising out of or in the course of the employment, or whilst the worker is acting under the employer's instructions;

(b) a disabling disease to which Part III Division 3 applies;

(c) a disease contracted by a worker in the course of his employment at or away from his place of employment and to which the employment was a contributing factor and contributed to a significant degree;

(d) the recurrence, aggravation, or acceleration of any pre-existing disease where the employment was a contributing factor to that recurrence, aggravation, or acceleration and contributed to a significant degree; or

(e) a disabling loss of function to which Part III Division 4 applies,

but does not include a disease caused by stress if the stress wholly or predominantly arises from a matter mentioned in subsection (4) unless the matter is mentioned in paragraph (a) or (b) of that subsection and is unreasonable and harsh on the part of the employer;"

"(5) If the worker and the employer cannot agree on whether the degree of disability is not less than the relevant level, 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, the 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).

(11) ..

(12) Unless notification is given by the employer under subsection (8), the employer is to be regarded as having agreed that the degree of disability is not less than the relevant level."

54 Section 84ZN restricts a party's right to challenge a decision by a Review Officer. Subsections 84ZN(1) and (2) provide:

"(1) Subject to this section, a decision or order of a review officer is not open to question or review in any court, and proceedings by or before a review officer may not be restrained by injunction, prohibition, or other process or proceedings in any court or by removal by certiorari or otherwise in any court.

(2) A party to the proceedings who is dissatisfied with a decision or order of the review officer may, where a question of law is involved, appeal to a compensation magistrate's court against the decision or order."

55 On or shortly after 13 December, 1999, Mr Santos referred the question of the degree of his disability as a result of his accident at work on 1 February 1995 to the Director with a "report" from a Dr Hewitt dated 1 December 1999. In this Court, Mr Santos accepted that Dr Hewitt's report was not "medical evidence from a medical practitioner indicating that, in the medical practitioner's opinion, the degree of [Mr Santos'] disability is not less than the relevant level" and so did not satisfy s 93D(6).

56 On or about 6 January, 2000, United Construction notified the Director that it considered that Mr Santos' degree of disability was less than the relevant level.

57 The parties' dispute concerning the degree of Mr Santos' disability as a result of his accident was not resolved by agreement, and, some time after 11 January 2000, the Director referred that question to a Review Officer under s 93D(10) for resolution under Part IIIA.

58 On 12 December 2000, a Review Officer decided that the degree of Mr Santos' disability as a result of his accident was not less than 16 per cent. That entitled him to claim damages provided that other requirements were satisfied: s 93E(6).

59 On 1 November, 2001, a Compensation Magistrate dismissed an appeal by United Construction against the Review Officer's decision.

60 United Construction has appealed to this Court by leave from the Compensation Magistrate's decision. It has also applied for prerogative writs to quash a number of decisions of the Director, concluding with the Director's referral of the question or dispute concerning the degree of Mr Santos' disability to the Review Officer.

61 United Construction's first ground of appeal from the decision of the Compensation Magistrate concerns the definition of "disability" in s 5.

62 The injury to Mr Santos' foot constituted a "disability" under par (a) of the definition. The "disease" to which his hip was subject prior to the injury to his foot did not constitute a disability under pars (c) or (d) unless his employment had contributed to his contracting the disease, or to the recurrence, aggravation or acceleration of the disease, "to a significant degree". United Construction submitted that, on the proper construction of the definition of "disability" in s 5, the Review Officer was bound, when determining the degree of Mr Santos' disability as a result of his accident, to disregard his hip problems, including any hip problems that resulted from his accident, unless his employment, including his accident, had contributed to his hip problems "to a significant degree". That argument erroneously treats both the definition of "disability" in s 5 and Mr Santos' hip problems compendiously.

63 While there might be cases in which a worker's total disability is to be determined by reference to more than one paragraph of the definition of "disability", Mr Santos' damages claim is based solely on his accident, which he alleges was caused by United Construction's tort, not on his accident combined with other circumstances of his employment that he does not allege were tortious. The disability for which Mr Santos claims damages is solely referable to par (a) of the definition of "disability", which is separate and self-contained. The Review Officer was required to determine what disability Mr Santos has as a result of his accident. Any hip problems that he has as a result of his accident form part of that disability and Mr Santos' employment was the cause of those hip problems. Any hip problems that he has that do not result from his accident are not part of his disability for the purpose of his damages claim irrespective of whether or not his employment contributed to those hip problems significantly or at all.

64 United Construction's argument based on the construction of the definition of "disability" in s 5 should be rejected.

65 United Construction's other ground of appeal against the Review Officer's decision also formed the basis of its application to quash decisions of the Director, including his referral of the degree of Mr Santos' disability to the Review Officer for decision. United Construction argued that, because of Mr Santos' non-compliance with s 93D(6), the Director had no power to make his decisions and the Review Officer had no power to decide the degree of Mr Santos' disability. Presumably because of s 84ZN(1), United Construction did not seek a prerogative writ to quash the Review Officer's decision. Probably for the same reason, it did not suggest that the Review Officer's decision is susceptible to collateral challenge in Mr Santos' District Court action: cf A-G (Commonwealth) v Breckler [1999] HCA 28; (1999) 163 ALR 576, pars 36 and 94.

66 There is no discernible purpose for United Construction's proceedings for prerogative relief. Whether or not the Director's referral of the question or dispute concerning the degree of Mr Santos' disability to the Review Officer is quashed, there is no purpose in quashing earlier decisions of the Director. Further, even if all of the Director's decisions are quashed, the Review Officer's decision will stand unless and until it is set aside in United Construction's appeal under s 84ZN(2). Neither party seriously challenged the "orthodox judicial position" (Aronson & Dyer, Judicial review of Administrative Action, 2nd. Ed., p500) that neither the Director's referral of the degree of Mr Santos' disability to the Review Officer nor the Review Officer's decision on that referral was automatically a nullity because of Mr Santos' non-compliance with s 93D(6). While an administrative decision that is beyond power is correctly described as void and not merely voidable, invalidity is not an automatic consequence of the decision-maker's lack of power but results from, and is dependent on, a court's determination of invalidity, even if the impugned decision is then invalid from the time when it was made.

67 Notwithstanding that these proceedings were heard by a bench of five Judges, Mr Santos expressly declined to challenge the Court's decision in Re Monger; ex parte Dutch [2001] WASCA 220; (2001) 25 WAR 96. That decision establishes that the Director's referral to the Review Officer was beyond power and, subject to time limitations and discretionary considerations, could be quashed by certiorari because of Mr Santos' non-compliance with s 93D(6). Mr Santos also accepted that the review Officer's power to decide the degree of Mr Santos' disability required a valid referral from the Director: cp Corporation of the City of Enfield v Development Commission [2000] HCA 5; (2000) 199 CLR 135. However, Mr Santos argued that the Review Officer's decision cannot be set aside because his only function and power was to decide the question or dispute referred to him, namely, the degree of Mr Santos' disability, and he had no power to decide whether that question or dispute had been validly referred, and that, although "a question of law is involved", the Compensation Magistrate had no jurisdiction to allow United Construction's appeal under s 84ZN(2) against the decision of the Review Officer on the basis that it was beyond power.

68 The Compensation Magistrate's Court, which is established pursuant to Part VI, is given jurisdiction to hear and determine proceedings, including appeals under s 84ZN, "according to equity, good conscience and the substantial merits of the case without regard to technicalities..": (s 116(1)(b)). Read literally, s 84ZN(2) permits an appeal to the Compensation Magistrate's Court against a decision of a Review Officer by a party to a proceeding before a Review Officer who is dissatisfied with the Review Officer's decision provided that a question of law is involved. A conclusion that the Review Officer did not have power to decide whether the Director's referral was beyond power does not lead to the further conclusion that the Compensation Magistrate did not have jurisdiction in United Construction's appeal from the Review Officer's decision to decide whether the Review Officer had power to determine the degree of Mr Santos' disability. Statutory appeals against decisions involving error of law commonly extend to erroneous exercises of power: see, for example, Clisdell v Commissioner of Police (1993) 31 NSWLR 555; Chief Adjudication Officer v Foster (1993) AC 754.

69 Since Parliament intends conditions on which statutory powers are granted to be observed and s 84ZN effectively excludes any curial supervision of decisions by Review Officers other than in appeals under s 84ZN(2), even decisions made by a Review Officer without any referral from the Director and without procedural fairness, s 84ZN(2) should be given its full literal effect in accordance with established principles of statutory construction.

70 United Construction's appeal should be allowed on the basis that the Review Officer lacked power to decide the degree of Mr Santos' disability. The Review Officer's decision should be set aside.

71 United Construction did not dispute Mr Santos' submission that the Court has a discretion to refuse prerogative relief to quash the Director's decisions. It is seven and a half years since Mr Santos was injured and more than three and a half years since he referred the degree of his disability as a result of his accident to the Director. Although it has been held that Mr Santos had the relevant level of disability to entitle him to sue for damages and that United Construction's argument that that conclusion was based on a misconstruction of the Act is incorrect, the stay of his District Court action for damages will now continue but United Construction has participated without disadvantage in the process that led to the Director's referral of the degree of Mr Santos' disability to the Review Officer without any challenge to his referral until after he had done so and in the proceedings in which the degree of Mr Santos' disability was decided. The course adopted by United Construction has unnecessarily added considerably to the cost and complexity of the dispute. As noted, there is no purpose in quashing the Director's decisions.

72 United Construction's application for prerogative relief should be refused with costs but its appeal should be allowed with costs and the Review Officer's decision set aside.