Court of Appeal (WA)|2003-08-25|Before: Ms J, Hasluck J, Murray J, Wheeler J

Re Monger; Ex Parte Welsby [2003] WASCA 191 (25 August 2003)

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

CITATION : RE MONGER; EX PARTE WELSBY [2003] WASCA 191

MATTER : An application for Writs of Certiorari and Mandamus against Mr Ross Monger Director of the Conciliation and Review Directorate and against Nicholas C Anastas, Dr F Ng and Dr S Blackwell constituted under the Workers' Compensation and Rehabilitation Act 1981

Workers compensation - Certiorari - Effect of order absolute quashing determination of Medical Assessment Panel - Whether such an order quashes the procedural steps whereby the matter in issue was referred to the Panel - Approach to be followed by the Panel in making a further determination - Whether a further medical examination of the worker is necessary - Requirement that determination be made within 28 days of the medical examination - Quashing of further determination where no further medical examination - Turns on own facts

Workers' Compensation and Rehabilitation Act 1981, s 84ZA, s 84ZH, s 93D, s 93E, s 93C, s 93F, s 145D, s 145C, s 145E, s 145F, Pt III, Pt IIIA, Pt X, Pt IV Div 2

Workers' Compensation and Rehabilitation Regulations 1982, reg 19J

Ansett Australia Ltd v The Medical Assessment Panel (1998) 19 WAR 395

Calvin v Carr (1979) 22 ALR 417

King-Brooks v Roberts (1991) 5 WAR 500

Macksville & District Hospital v Mayze (1987) 10 NSWLR 708

Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 76 ALJR 598

Re McWilliam & Ors, Ex Parte Juras, unreported; FCt SCt of WA; Library No 960637; 7 November 1996

West Australian Field and Game Association Inc v Pearce (1992) 8 WAR 64

1 MURRAY J: In this matter I have had the advantage of reading in draft the reasons published by Hasluck J with which I am in respectful agreement. There is nothing that I wish to add. I too would make an order absolute for certiorari to quash the determination of the Medical Assessment Panel made on 9 May 2002.

2 WHEELER J: I have had the advantage of reading in draft the reasons for decision of Hasluck J. I agree with those reasons, and with the order his Honour proposes.

3 HASLUCK J: The applicant, John Welsby, has applied for writs of certiorari and mandamus directed to the Director of Workcover WA and the members of a Medical Assessment Panel for the purposes of quashing the Director's referral of the question of the applicant's degree of disability to the Panel on or about 1 May 2002 and the Panel's determination on 9 May 2002 that the worker's degree of disability was 15 per cent.

4 The applicant, John Welsby, made a claim pursuant to the Workers' Compensation and Rehabilitation Act 1981 in respect of personal injuries allegedly sustained by him on or about 30 July 1999 in the course of his employment.

5 A dispute arose between the applicant and the employer about the applicant's degree of disability. This question was referred to the Director of Conciliation and Review Work Cover for determination. The applicant described his disability in the form effecting the referral (Form 22) as "back injury and psychological illness". The applicant claimed that his level of disability was "not less than 30%" and provided medical evidence in support of that claim.

6 The dispute was referred to a review officer. That officer then referred the issue concerning the degree of disability to a Medical Assessment Panel.

7 The applicant was advised by letter dated 31 October 2000 that his matter had been referred to the Panel and all medical reports and other documents to be considered by the Panel were identified. The documents comprised 14 medical reports from a variety of doctors covering the period from 9 August 1999 to 3 October 2000.

8 Section 145D of the Act provides that the Panel is to act speedily and informally, without regard to technicalities or legal forms. It is not bound by rules of practice nor evidence. By s 145D(2), the Panel may require the worker to attend and submit to medical examination by the Panel. By s 145E(2), the Panel's determination is to be made as soon as is practicable, but in any event within 28 days after the date on which a medical examination of the worker concerned is carried out by the Panel.

9 I digress briefly to note that in Re Croser; Ex Parte Rutherford & Anor [2003] WASCA 8 the Full Court held that the Panel has a discretion under s 145D(2) with the result that it is not strictly necessary for the Panel to examine the worker. However, if it does, it must abide by the provisions of s 145E(2) and make its determination within 28 days after the examination.

10 A Panel chaired by Mr N C Anastas and including Dr F Ng and Dr S Blackwell convened and determined the applicant's degree of disability as assessed in accordance with s 93D of the Act.

11 The determination by the Panel was expressed in this way. The applicant was said to have a permanent disability of 15 per cent. Five per cent of this disability was said to be in his thoraco-lumbar spine (excluding cervical spine) and 10 per cent of this disability was said to be contributed to by his mood disorder. This meant that the applicant was precluded from pursuing a claim for damages independently of the Act, for workers who have a disability of less than 16 per cent can only claim workers' compensation.

12 The reasons for the determination were described as follows:

"1. Correspondence read, history taken, examination performed, imaging viewed, referral to a manual on disability, discussion with panel members, unanimous agreement by panel.

2. He has complained of symptoms since the incident on the 30th. July 1999.

3. There is inconsistency on examination with forward flexion of his spine and straight leg raising.

4. There is no evidence of radiculopathy."

13 These reasons reveal that the applicant was examined by the Panel prior to the determination. It was not apparent from the evidentiary materials before the Full Court on the hearing of the present application as to when exactly examination was performed but the likelihood is that it occurred on 23 November 2000 when the Panel was convened. In any event, in the absence of any issue concerning this aspect of the matter, I must assume that the determination was made within 28 days of the applicant being examined as prescribed by the Act.

14 The reasons provided by the Panel on 23 November 2000 were thought to be insufficient. The applicant brought an application for relief before the Full Court (CIV 1684 of 2001) and obtained an order for a writ of certiorari quashing the Panel's determination: Re Anastas & Ors; Ex Parte Welsby [2002] WASCA 83.

15 The Full Court acknowledged that a Medical Assessment Panel cannot be expected to produce long or elaborate reasons. However, as the Act requires the Panel to give written reasons for its determination, the obligation is not fulfilled unless the reasoning process can be followed. The obligation had not been fulfilled in the instant case.

16 The judgment of the Full Court included this passage:

"The order nisi called upon the three members of a medical assessment panel constituted under s 145C of the Workers' Compensation and Rehabilitation Act 1981 to show cause before the Full Court why a writ of certiorari should not issue against the panel to quash its determination of 23 November 2000 that the applicant's degree of disability, as assessed in accordance with s 93D of the Act was 15 per cent.

The Court came unanimously to the view that the order nisi should be made absolute and that order was made on 21 March 2002, with reasons to be delivered later."

17 The formal order of the Full Court, being an order absolute granting a writ of certiorari dated 21 March 2002 reflects this ruling.

18 On the hearing of the present application a question arose as to what exactly had been quashed as a consequence of the ruling made by the Full Court. It is apparent from the passage I have just quoted, and the formal order, that a decision was made to quash the Panel's determination of 23 November 2000 that the applicant's degree of disability, as assessed in accordance with s 93D of the Act, was 15 per cent. I will come back to the question of whether an order in these terms can be said to have quashed or set aside any of the steps whereby the matter in issue was referred to the Panel for determination.

19 I note in passing that the ruling of the Full Court did not contain any order or direction that the matter be remitted to the same Panel for another determination or as to how the matter should be dealt with.

20 By letter dated 22 April 2002 the solicitors for the applicant wrote to the Director requesting that he relist the Form 22 application for a review hearing. Shortly afterwards, the solicitors served upon the Director a copy of the sealed order absolute whereby the Full Court granted a writ of certiorari.

21 By letter dated 1 May 2002 the Director replied that as the Full Court's decision quashed the determination of the Medical Assessment Panel, "I have returned the matter to the Panel to be further dealt with by it in accordance with the Full Court's decision".

22 The applicant's solicitors then requested, by letter dated 6 May 2002, that instead of the Panel being reconvened, the matter be set down for a preliminary review before the review officer. In other words, the applicant contended by his legal advisers that the effect of the Full Court ruling was to quash the entire process whereby the matter had been referred to the Panel with the result that a fresh reference was required.

23 It seems that the Director viewed the matter in a different light. On or about 16 May 2002 the Director by his Deputy delivered to the applicant's solicitors a copy of the determination made by the Panel, that is to say the Panel constituted by Mr Anastas, Dr Ng and Dr Blackwell, on 9 May 2002 (the "second determination").

24 The second determination discloses that the Panel met on 9 May 2002 "to further discuss the determination re Mr. John Peter Welsby". The answer provided by the Panel was that he has a 5 per cent disability in his thoracic spine (excluding cervical spine) and has a 10 per cent disability due to his mood disorder.

25 On this occasion, the reasons underlying the determination were set out at greater length. Paragraph 3 of the reasons refers to "Examination performed" and to certain inconsistencies which were said to have been revealed on examination. It is said in par 4 that clinical examination by the Panel did not reveal any evidence of radiculopathy in that he did not have a neurological deficit. It is said in par 8 that "Mental status examination was conducted".

26 I pause to say that the second determination made 9 May 2002 suggests in its terms that it was preceded by further examination of the applicant. However, discussion at the hearing before the Full Court proceeded from the premise that a further examination had not taken place. Counsel for the applicant informed the Court that the applicant was not further examined before the new determination and that the references in the second determination were simply references to the examination performed on 25 November 2000 prior to the making of the first determination.

27 There was then an exchange of correspondence between the applicant's solicitors, the employer's solicitors and the Director concerning the correctness of the procedure that had been followed. The applicant's solicitors contended that the decision of the Director to refer the matter back to the Panel was incorrect. Further, by letter dated 5 June 2002, the applicant's solicitors submitted to the Director a copy of a medical report prepared by Dr K Chew dated 4 May 2002 which was said to contain new evidence bearing upon the condition of the applicant. The Chew report referred to an alleged loss of sexual function.

28 It was against this background that the matter came on before the review officer on 25 June 2002. On 16 July 2002 the review officer published reasons to the effect that, in her view, she did not have the power to determine the validity of the Director's action in referring the matter back to the Panel and that she considered herself bound by the Panel's second determination dated 9 May 2002 until it was set aside or changed. The review officer then made a determination in accordance with the second determination made by the Panel. This meant, again, that the applicant was precluded from pursuing a claim for damages independent of the Act.

Grounds advanced in support of the application

29 The applicant challenges the regularity of what has occurred and seeks relief by way of certiorari. I note in passing that the second determination of 9 May 2002 is described in the grounds of appeal as the "re-determination".

30 The grounds advanced in support of the application (as amended at the hearing) are as follows:

"1. The Director did not possess the jurisdiction or the power to refer the question of the Applicant's degree of disability to the Panel on or about 1 May 2002 ("the second referral"), as the previous determination by the Panel on 23 November 2001 ("the first determination") was quashed by order of the Full Court made on 21 March 2002.

2. The Director did not in any event possess statutory power or jurisdiction to make the second referral.

3. The Panel did not have the power or jurisdiction to make the re-determination as:

(a) the re-determination was a mere or purported reconsideration of the first determination;

(b) the Full Court had quashed the first determination by orders made on 21 March 2002;

(c) in any event the Director did not possess statutory power or jurisdiction to make the second referral, this being a necessary jurisdictional fact conditioning the Panel's jurisdiction or power to make a valid re-determination

(d) it was made more than 28 days after the medical examination of the worker.

4. In any event, the Panel's re-determination, if otherwise valid, be quashed for inadequate reasons.

Particulars

(a) there is no explanation of the relevance of its finding of 'inconsistencies on examination' and its impact upon the particular degree of disability;

(b) there is no explanation of the relevance of its finding that there was no evidence of radiculopathy and its impact upon the particular degree of disability.

5. In any event, the Panel's re-determination, if otherwise valid, be quashed for jurisdictional error or excess of jurisdiction.

Particulars

(a) contrary to the Panel's finding, 'mood disorder' is not an item assessable pursuant to Schedule 2. Accordingly, the Panel's determination of the Applicant's degree of disability was not performed in accordance with s 93D(2) and s 93D(6) of the Act;

(b) in any event, the was (and has been) no pre-requisite finding that the Applicant was totally unable to work due to his psychiatric condition, such as to attract the operation of item 8 of Schedule 2.

6. In any event, if the Director's re-referral of the question to the Panel on 1 May 2002 and the Panel's re-determination on 9 May 2002 were otherwise valid, there be an order for a Writ of Mandamus against the Director compelling him to perform his function under s 145F of the Act.

Particulars

(a) The Applicant forwarded to the Director, new evidence as to his loss of sexual function, which was assessable as part of the Applicant's degree of disability, with a request that the new evidence be forwarded to the Panel pursuant to s 145F of the Act;

(b) the new evidence was in the form of a medical report from Dr Chew dated 4 May 2002;

(c) the new evidence is likely to affect the Panel's re-determination;

(d) since 5 June 2002, the director has failed or refused, and continues to fail or refuse to consider exercising his power under s 145F of the Act;

(e) since 5 June 2002, the Director has failed or refused, and continues to fail or refuse to forward the new evidence to the Panel."

31 Before turning to the issues raised by these grounds, it will be useful to take a closer look at the structure of the Act and the statutory provisions bearing upon the matters in issue.

32 The liability of employers to pay compensation to workers for disabilities caused by accidents arising out of or in the course of the employment is addressed by Pt III of the Workers' Compensation and Rehabilitation Act. Part X contains provisions imposing upon employers an obligation to obtain insurance.

33 Part IV of the Act is concerned with civil proceedings in addition to or independent of the Act. The intention is that both compensation and damages shall not be recoverable. More importantly, for present purposes, Div 2 of Pt IV imposes constraints on awards of common law damages.

34 The issues in the present case arise in the context of the provisions introduced in 1999 which set out further restrictions on the ability of an injured worker to obtain damages at common law from the employer. By s 93C of the Act a court is not to award damages to a person contrary to the provisions of Div 2 of Pt IV.

35 Section 93E(3) provides that damages can only be awarded if it is agreed or determined that the degree of disability is not less than 30 per cent or that the worker has a significant disability and elects to retain the right to seek damages in accordance with the prescribed procedures. The worker is said to have a significant disability if it is agreed or determined that the degree of disability is not less than 16 per cent. An election to retain the right to seek damages for a significant disability is to be made within a strict time limit.

36 In Re Monger; Ex Parte Dutch [2001] WASCA 220; (2001) 25 WAR 96 Malcolm CJ said this at par 24:

"The effect of these provisions is to create three categories of injured workers. The first is that of workers who have a disability of less than 16%. They can only claim workers' compensation and have no right of action for common law damages. The second is that of workers who have a disability of between 16% or more but less than 30%. They are required to make an election whether to receive statutory benefits or to exercise their right of action at common law. Common law damages are capped at $250,000 inclusive of any sums paid as statutory benefits: s 93F(8). An election can only be made:

(i) within six months of the date of commencement of weekly payments; and

(ii) if it has been agreed or determined that the worker's degree of disability is not less than 16%.

The third category comprises workers whose disability has been determined to be 30% or more. They are entitled to exercise their right of action at common law without any limitation on the amount of damages and are entitled to receive statutory benefits in the meantime. No election is required."

37 Section 93D(5) provides that if the worker and the employer cannot agree on whether the degree of disability is not less than the relevant level, the worker may refer the question to the Director subject to provision of a medical opinion that the degree of disability is not less than the relevant level.

38 By s 93D(10), if there is any dispute between the parties as to the relevant level, and if the dispute is not resolved by agreement, the Director is to refer the question for resolution under the provisions of Pt IIIA of the Act. I note in passing that by reg 19J of the Workers' Compensation and Rehabilitation Regulations 1982 a referral to the Director under s 93D(5) of the Act is to be made in Form 22 and the worker is required to nominate the relevant level of disability in respect of which the referral is made.

39 By s 84ZA (which lies within Pt IIIA of the Act concerning dispute resolution), review by a review officer is to be undertaken promptly and according to the substantial merits of the case without regard to technicalities or legal forms or precedent. By s 84ZH a review officer may refer a question as to the nature or extent of a disability for determination by a Medical Assessment Panel.

40 The procedures governing determinations by a Medical Assessment Panel are set out in s 145D of the Act. As I noted in earlier discussion, the effect of s 145D(2) is that the Panel may require the worker to attend and to submit to a medical examination by the Panel. By s 145E(2) the determination is to be made as soon as is practicable but in any event within 28 days after the date on which a medical examination of the worker concerned is carried out by the Panel. The determination must be supported by reasons. By s 145E(5), the determination is final and binding on the worker and his employer and on any court or tribunal hearing a matter in which any such determination is relevant.

41 Section 145F(1) provides that if at least 60 days after the determination is made a person who is affected by the determination satisfies the Director that there is any new evidence that could not have been submitted to the Panel, and would be likely to affect the determination of the question if it were to be reconsidered by the Panel, the Director may again refer the question to the Panel. In that event, the Panel may vary its previous determination or rescind it and make a new determination.

42 It emerges from a consideration of these provisions that otherwise than in the exercise of the special power allowed to him by s 145F concerning new evidence, the Director does not refer questions to a Medical Assessment Panel for determination. That is a function exercised by the review officer. However, related provisions indicate that the Director is expected to provide administrative support to Medical Assessment Panels. For example, by s 145C the Director is to select the medical practitioners to be the Panel. By s 145E(3) the Director approves the form used by Panels for the recording of their determinations and reasons. Further, by s 145E(4), the Director is required to give the determination and reasons to the person who referred the question to the Panel.

43 It is material to note that in Re Monger; Ex Parte Dutch (supra) the Full Court held that the requirement of the Director under s 93D to notify the employer that a worker has referred a question to the Director supported by a medical opinion only arises when the Director is satisfied that the medical evidence indicates that the degree of disability is not less than the requisite level. Thus, the Director's task is not purely an administrative one but involves a limited adjudicative function. Accordingly, if the director went beyond his jurisdiction, his decision could be quashed by certiorari.

44 This brings me to the circumstances in which it is open to a party to obtain relief by way of certiorari, being the principal form of relief sought by the applicant in the present case.

45 Wherever the legislature entrusts to any body of persons other than the superior courts the power of imposing an obligation upon individuals or affecting their legal rights, the courts are inclined to hold that such bodies are required to act judicially, that is to say, they must act within jurisdiction and they will be obliged to observe the rules of natural justice by acting impartially and by allowing to the party likely to be affected an opportunity to be heard. If such a body falls into error then relief can be obtained via the prerogative writs of certiorari and prohibition.

46 For example, in Hot Holdings Pty Ltd v Creasy (1996) 185 CLR 149 the High Court held that a preliminary decision or recommendation made by a mining warden, if it is one which constitutes a condition precedent to an exercise of power that will affect legal rights, will have the requisite legal effect upon rights to attract certiorari. In the circumstances of that case, since the Minister was required to take the warden's recommendation into account, the warden's decision had a discernable legal effect on the Minister's exercise of discretion. Hence, certiorari lay to challenge a decision by a warden to conduct a ballot for the purpose of determining the party entitled to priority in respect of competing applications for a mining tenement.

47 These principles are also reflected in the decision of the High Court in Craig v South Australia [1995] HCA 58; (1995) 184 CLR 163 where it was said at 177 that a body obliged to act judicially falls into jurisdictional error if it mistakenly asserts or denies the existence of jurisdiction or if it misapprehends or disregards the nature or limits of its functions or powers in a case where it correctly recognises that jurisdiction does exist. Further, such a body will exceed its authority and fall into jurisdictional error if it misconstrues the relevant statutory provisions or other instrument and thereby misconceives the nature of the function it is performing or the extent of its powers in the circumstances of the particular case.

48 The function of certiorari was described in Ainsworth v Criminal Justice Commission [1992] HCA 10; (1992) 175 CLR 564. In that case, a report was prepared by the Criminal Justice Commission and tabled in Parliament which contained adverse recommendations about certain persons involved in the poker machine industry. Mason CJ, Dawson, Toohey and Gauldron JJ held that certiorari did not lie because no legal effect or consequence attached to the report. They said this at 580:

"The function of certiorari is to quash the legal effect or the legal consequences of the decision or order under review. The report made and delivered by the Commission has, of itself, no legal effect and carries no legal consequences, whether direct or indirect. It is different when a report or recommendation operates as a precondition or as a bar to a course of action, or as a step in a process capable of altering rights, interests or liabilities. A report or a recommendation of that kind may be quashed, that is to say its legal effect may be nullified by certiorari."

"Certiorari might go to quash a report if its production or furnishing were to affect directly a prosecutor's rights or were to subject them in some way to a new hazard but, as the Commission's Report has no legal effect, there is nothing to be quashed. Quashing annihilates the legal effect of an act or decision that has been reached in breach of a condition of its validity but, if an act or decision has no legal effect, there is nothing to quash. Nor is mandamus an appropriate remedy."

50 Put shortly, the reasoning in Hot Holdings (supra) and Ainsworth (supra) suggests that the decision or determination to be quashed is that which is capable of having an effect upon the rights of an interested party. This suggests that in the circumstances of the present case the decision made by the Full Court to quash the first determination brought about the annihilation of the decision made by the Panel at that time concerning the degree of disability but did not necessarily set aside or quash the preceding steps or process whereby the matter in issue was referred to the Panel for determination by the review officer. It is significant that the members of the Full Court responsible for the decision to quash did not make any observations suggesting that the quashing order went beyond the precise determination of the Panel.

51 I must now return to the respective contentions of the applicant and of counsel appearing as amicus curiae.

52 Grounds 1, 2 and 3 of the application in various ways raise the question of whether the Director had the jurisdiction or power to refer the question of the applicant's degree of disability to the Panel following the quashing of the Panel's first determination. Linked to this issue is the related question of whether the Panel had power or jurisdiction to make the second determination.

53 Counsel for the applicant submitted that upon a proper interpretation of s 84ZH, s 145E and s 145F, a Panel only has jurisdiction to make a determination if there has been a valid referral under s 84ZH of the Act. The Panel is a creature of statute and only has the authority given to it by the statute. Once it has made a determination it has then exhausted its authority. It has no power to review its determination, except in the limited circumstances set out in s 145F.

54 It followed from this view, counsel for the applicant contended, that once the Panel made its first determination on 23 November 2000 it had exhausted its jurisdiction based upon that referral. The first determination was quashed on 21 March 2002 by order of the Full Court and there was no order that the matter be remitted to the same Panel for re-determination. The Director had no power to refer the matter back to the Panel as the power to refer was vested in the review officer. It must follow that the Panel had no authority to make a further determination. The matter could only come before a Panel for another determination by way of a fresh referral under s 84ZH by a review officer. The worker would then have been free to submit further medical evidence for consideration.

55 To my mind, it is clear from the evidence that the only referral of the question of the applicant's degree of disability was that made by the review officer pursuant to s 84ZH of the Act, prior to the first determination. No further referral was made by the review officer prior to the second determination.

56 It is true that the Director by letter dated 1 May 2002 to the applicant's solicitors spoke of having returned the matter to the Panel to be further dealt with by it in accordance with the Full Court's decision. However, I do not consider that this step can be characterised as a referral or purported referral of the matter to the Panel. As a party obliged to provide administrative support to the Panel, the Director seems to have been acting simply as a conduit in conveying information to the Panel that the first determination had been quashed with the result that they were now obliged to make a valid and effective determination in response to the original referral by the review officer.

57 In my view, as I observed in earlier discussion, the Full Court's decision to quash the first determination impacted only upon the decision or answer given with respect to the degree of disability issue. It did not have the effect of setting aside or annihilating the steps preceding the making of the invalid determination, that is to say, the original referral of the matter to the Panel by the review officer. Such a view is consistent with the reasoning in Ainsworth (supra).

58 Thus, to the extent that a referral which complies with s 84ZH and s 145A of the Act can properly be characterised as a "jurisdictional fact", in the sense that its existence conditions the jurisdiction of the Panel, the original referral in the present case continued to operate as a jurisdictional fact, founding the jurisdiction of the Panel to make the second determination.

59 Put shortly, the first three grounds of the present application are founded on a misconception, namely, that the Director himself referred to the Panel a question as to the applicant's degree of disability. The true position was that the Director simply passed on information to the Panel about the Full Court's ruling. The original referral by the review officer to the Panel remained extant and unanswered because no valid and effective answer had been provided (according to the ruling of the Full Court) in response to the referral.

60 It follows from this view of the matter that it was incumbent upon the Panel, in making the second determination, to make a fresh determination. That did not necessarily mean that the Panel had to reach a different conclusion or that it was obliged to reach the same conclusion for different reasons. The fact that in the second determination the Panel reached the same conclusion, and appears to have relied on similar considerations, does not necessarily mean that the Panel failed to consider afresh the question before it. The Panel's role was to determine the applicant's degree of disability based on medical information. It should not be thought surprising that the same medical information which informed the first determination should continue to be pertinent to the second determination. I am not persuaded that a reference in the relevant document to the Panel meeting on 9 May 2000 "to further discuss" the determination concerning Mr Welsby should be taken as an indication that the Panel did not approach the matter afresh.

61 However, as mentioned earlier, it does not appear that the Panel re-examined the applicant for the purpose of reaching its second determination. This was certainly the basis upon which the matter was argued on the hearing of the present application, namely, that the applicant was not re-examined on the second occasion. Indeed, it was with this thought in mind that an application was made at the hearing to amend the grounds of appeal to introduce the further ground in par 3(d) to the effect that the Panel did not have the power or jurisdiction to make the re-determination as it was made more than 28 days after the medical examination of the worker.

62 It is this aspect of the matter which causes me the greatest concern and ultimately leads me to believe that the Panel misconceived the nature of the function it was to perform in the course of making the second determination.

63 I accept, having regard to s 145D(2) of the Act, that the Panel has a discretionary power to require the worker to attend the Panel and to submit to medical examination by the Panel. It follows from this that the Panel is not necessarily obliged to examine the worker. Drawing upon its expertise, it would be open to the Panel to arrive at a conclusion having regard to the written medical reports only. However, it seems to me, having regard to Re Croser (supra) that if they are to follow that course that they ought to provide reasons for deciding it is not necessary to re-examine. On that point I note in particular the observations of Rolf AJ at par 11 and par 12:

"11. As has appeared in this case, the panel had examined Mr Stafford on 11 May 2001. The panel, in its determination, apparently relied on that examination. Mr Stafford's medical conditions were, at least prima facie, ones which could change, and perhaps change quite dramatically, over a period of 12 months. Therefore, prima facie, one would have anticipated that the panel would have required to re-examine him. However, it did not, nor did it give any reasons for not doing so.

12. One can imagine cases in which the panel, called upon to review its previous determination, may not find it necessary to re-examine the worker. For example, if the worker has had a limb amputated, and there is nothing more in the case than that that had happened, and the panel had examined the worker previously and ascertained that the limb had been amputated, there would seem no necessity to carry out a further examination unless, of course, the complaint related to the consequences or sequelae of the amputation. In cases where the panel decides it is not necessary to re-examine, there is no reason why it should not state briefly, its reasons for so deciding.

64 Further, if an examination does take place, I am of the view that, having regard to s 145E(2), the determination must be made within 28 days after the date on which the relevant medical examination of the worker concerned is carried out by the Panel: Re Croser (supra). The provision is couched in mandatory terms and one can readily imagine why it should be expressed in that manner. If an examination is performed, the members of the Panel are likely to be strongly influenced by the examination in the formation of their views, notwithstanding the presence of written reports and other evidentiary materials. Accordingly, the relevant provisions require that the determination must be formulated promptly, within 28 days, so that the answer given concerning the degree of disability can be taken to represent an up to date assessment of the applicant's condition.

65 To my mind, the mandatory nature of the requirement is underpinned by the following provisions of s 145E concerning determinations whereby a determination made by a Panel is to be final and binding not only on the worker and his employer but also upon any court or tribunal hearing a matter in which any such determination is relevant.

66 In the present case, on the assumption that the applicant was not examined on the second occasion, (and therefore had not been examined by the Panel since 23 November 2000) there was obviously a real risk that the reasons expressed by the Panel in the second determination were based on reports that had been overtaken by events and did not accurately reflect the applicant's current condition. Indeed, the applicant, by reliance upon a further medical opinion, namely, the report of Dr Chew, seeks to advance such a case.

67 Accordingly, I consider that the application for certiorari should be allowed upon the basis reflected in ground 3(d) of the application. Put shortly, the Full Court's decision to quash the first determination nullified the Panel's finding that the applicant had a disability of 15 per cent but it did not nullify the review officer's referral of the question to the Panel or the Panel's examination of the applicant on or about 23 November 2000. Thus, having resolved to examine the applicant, the proper exercise of the Panel's jurisdiction required that it make its determination within 28 days of any medical examination on which it intended to rely. In the circumstances of the present case it was therefore obliged to undertake a fresh medical examination of the applicant so that it would be in a position to make its second determination within 28 days of the examination. This it failed to do, with the result that certiorari lies to quash the second determination.

68 This view of the matter makes it unnecessary for me to express detailed views upon the matters in issue raised by the remaining grounds of appeal, save to say, as to ground 4, that on this occasion the reasons for decision provided by the Panel appear to be adequate.

69 I note in passing that an application for a writ of mandamus did not appear to be pressed at the hearing before the Full Court and I do not therefore feel obliged to express any lengthy views concerning that aspect of the matter. It follows from earlier discussion, that I am not persuaded that prerogative relief against the Director is appropriate. I consider that the application for a writ of Mandamus should be refused as it does not appear to be necessary and, in any event, it is questionable whether a demand for the exercise of a public duty has been identified, followed by a refusal to perform that duty.

70 Having concluded that the second determination involved a jurisdictional error by the Panel, it appears to me that the appropriate remedy is to grant certiorari to quash the second determination and thus to make absolute the order nisi to that extent only.

Compensation and Rehabilitation Act 1981

Compensation and Rehabilitation Regulations 1982

Re Monger; Ex Parte Welsby [2003] WASCA 191 (25 August 2003)

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Re Monger; Ex Parte Welsby [2003] WASCA 191 (25 August 2003)

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