SHANE MELVILLE, ACTING DIRECTOR OF DISPUTE RESOLUTION DIRECTORATE

Administrative law - Application for order to show cause - Jurisdictional error - Whether there is an arguable case that jurisdictional errors arise from reasons given by the Medical Assessment Panel - Whether there is an arguable case that there was no evidence for part of the determination by the Panel - Whether there is an arguable case that the Panel acted beyond jurisdiction - Whether there is an arguable case that the Panel failed to satisfy a jurisdictional fact by giving inadequate reasons for decision

Constitutional law - Privative clause - Section 145E of the Workers' Compensation and Injury Management Act 1981 (WA) provides that a decision of a medical assessment panel 'is not amenable to judicial review' - Whether arguable case that s 145E has retrospective operation - Whether arguable case that s 145E does not exclude judicial review for jurisdictional error - Whether arguable case that s 145E is beyond the legislative competence of the Parliament of Western Australia

Interpretation Act 1984 (WA)

Workers' Compensation and Injury Management Act 1981 (WA)

Andreassen v Rural West Pty Ltd [2007] WASCA 265

Attorney-General (Vic) v Commonwealth [1945] HCA 30; (1945) 71 CLR 237

Barminco Investments Pty Ltd v O'Brien [2006] WASCA 88

Bloomfield v Liebherr Australia Pty Ltd [2007] WASCA 154

Cashman v Brown [2011] HCA 22

Cazaly Iron Pty Ltd v Bowler [2006] WASCA 282

Chu Kheng Lim v Minister for Immigration, Local Government & Ethnic Affairs (1992) 176 CLR 1

Colley v Futurebrand FHA Pty Ltd [2005] NSWCA 223; (2005) 63 NSWLR 291

Corporation of the City of Enfield v Development Assessment Commission [2000] HCA 5; (2000) 199 CLR 135

Craig v The State of South Australia [1995] HCA 58; (1995) 184 CLR 163

Donges v Ratcliffe [1975] 1 NSWLR 501

Dossett v TKJ Nominees Pty Ltd [2003] HCA 69; (2003) 218 CLR 1

Eclipse Resources Pty Ltd v Department of Environment and Conservation [2010] WASC 360

Fisher v Madden [2002] NSWCA 28; (2002) 54 NSWLR 179

Gedeon v Commissioner of the New South Wales Crime Commission [2008] HCA 43; (2008) 236 CLR 120

Hockey v Yelland [1984] HCA 72; (1984) 157 CLR 124

Kirk v Industrial Relations Commission of New South Wales [2010] HCA 1; (2010) 239 CLR 531

Mathieson v Burton [1971] HCA 4; (1971) 124 CLR 1

Plaintiff S157/2002 v Commonwealth of Australia [2003] HCA 2; (2003) 211 CLR 476

R v Hull University Visitor; Ex parte Page [1992] UKHL 12; [1993] AC 682

R v Nat Bell Liquors Ltd [1922] 2 AC 128

Re Her Honour Judge Schoombee; Ex parte Attorney General for Western Australia [2011] WASC 23

Re Minister for Immigration and Multicultural Affairs; Ex parte Miah [2001] HCA 22; (2001) 206 CLR 57

Re Refugee Review Tribunal; Ex parte Aala [2000] HCA 57; (2000) 204 CLR 82

Re The Medical Assessment Panel; Ex parte Ansett Australia Ltd v The Medical Assessment Panel (1998) 19 WAR 395

Re Warden P Roth; Ex Parte Cazaly Iron Pty Ltd [2011] WASC 226

Timbarra Protection Coalition Inc v Ross Mining NL [1999] NSWCA 8; (1999) 46 NSWLR 55

Victrawl Pty Ltd v Telstra Corporation Ltd [1995] HCA 51; (1995) 183 CLR 595

Woodley v Minister for Indigenous Affairs [2009] WASC 251

1 This is an application for an order nisi for a writ of certiorari and a writ of mandamus. In England and Wales, since the Woolf reforms, an order nisi is described in English as an 'unless' order. It is an application for an order that unless the first respondent, the Medical Assessment Panel, shows cause why its determinations made on 10 September 2010 and 13 December 2010 should not be quashed, then orders will be made quashing those determinations.

2 The question in this application is whether the 'unless' order sought by Mr Seddon should be made. Mr Seddon submits that the order should be made because the Medical Assessment Panel made three jurisdictional errors.

3 The first alleged jurisdictional error is a failure to take into account a fact or circumstance which was necessary for the determination of essential steps by the Medical Assessment Panel. The second is that the Medical Assessment Panel acted beyond jurisdiction. The third is that the Medical Assessment Panel failed to give adequate reasons.

4 I consider that there is an arguable case that each of these jurisdictional errors was made and that each has reasonable prospects of success. There is also a preliminary question concerning the effect of the privative clause in s 145E(9) of the Workers' Compensation and Injury Management Act 1981 (WA) (the Workers' Compensation Act). That clause provides that a decision of a medical assessment panel is not amenable to judicial review. There is an arguable case, with reasonable prospects of success, that this clause does not prevent this court from assessing the decision of the Medical Assessment Panel for jurisdictional error.

(2) The determinations by the Medical Assessment Panel.

(3) The threshold test for an order nisi ('unless order').

(4) The privative clause in the Workers' Compensation Act.

(6) The first alleged jurisdictional error: 'no evidence'.

(7) The second alleged jurisdictional error: 'acting beyond jurisdiction'.

(8) The third alleged jurisdictional error: 'inadequate reasons'.

6 This background is based upon affidavit evidence, and accompanying documents, filed on behalf of Mr Seddon.

7 On 17 March 2001, Mr Seddon was injured after falling 6.2 m from a cherry picker to a concrete floor. He was treated in hospital for 10 days. His affidavit evidence describes his injuries. They include an injury to his cervical spine, an injury to his chest, a perforated right lung, a fracture to his right ribs, a fracture to his right elbow, a fracture to his L1 vertebrae, a fracture to his pelvis, a fracture to his right femur, and psychiatric injury. He has been receiving medical treatment since the accident. For the purposes of the Workers' Compensation Act, Mr Seddon's employer is Mirvac (WA) Pty Limited (Mirvac (WA)).

8 In 2007, Mr Seddon's solicitors wrote to the solicitors for Mirvac (WA). Mr Seddon's solicitors sought the agreement from Mirvac (WA) that Mr Seddon's injuries were not less than the 30% threshold for the purposes of a claim under the Workers' Compensation Act: s 93D of the Workers' Compensation Act. Mr Seddon's solicitors provided the solicitors for Mirvac (WA) with reports from Mr Seddon's medical specialists that assessed the total disability of Mr Seddon's whole body at 42.75%. Mirvac (WA) did not agree with this assessment. Nor did it agree that the injuries were less than the 30% threshold.

9 On 7 May 2007, Mr Seddon filed with the Dispute Resolution Directorate a 'Form 22' for the Referral of Question of Degree of Disability for not less than 30%. Subsequently, Mr Seddon's solicitors sent Mr Seddon's witness statement and a book of documents containing his medical reports and accident report to the Dispute Resolution Directorate. The solicitors for Mirvac (WA) subsequently sent to the Dispute Resolution Directorate a book of documents and a list of issues which were disputed.

10 In its submission to the Dispute Resolution Directorate, Mirvac (WA) assessed Mr Seddon's degree of disability at 23.8% of the whole body, which is less than the 30% threshold. Mirvac (WA) therefore submitted that the claim under the Workers' Compensation Act should be dismissed.

11 In the Form 22 which Mr Seddon filed with the Dispute Resolution Directorate, and in the reports of his medical practitioners, his description of disability had included an injury to his right arm (Item 13). Amongst the issues which Mirvac (WA) disputed were:

(1) the extent to which Mr Seddon has any impairment of his right upper limb;

(2) the extent to which such impairment (if any) is permanent; and

(3) causation in respect to the nominated right upper limb injury.

12 On 11 October 2007, Arbitrator Spivey from the Dispute Resolution Directorate referred to the Medical Assessment Panel the question of the degree of disability suffered by Mr Seddon. The Panel was constituted under s 145C of the Workers' Compensation Act. The Panel was comprised of Dr Alexeeff (Chairman), Dr Brown, and Dr La Bianca.

13 On 19 August 2010, the second respondent, Mr Melville, wrote to Mr Seddon. Mr Melville was the acting director of the Dispute Resolution Directorate. He explained that Dr Alexeeff had asked for Mr Seddon to produce any recent medical reports that Mr Seddon considered to be relevant.

14 On 10 September 2010, the Medical Assessment Panel met in Dr Alexeeff's rooms for a hearing of the questions referred to it by the Dispute Resolution Directorate. One question (question 4) which had been referred to the Panel was '[i]n percentage terms what, if any, is [Mr Seddon's] permanent degree of loss of use of his right arm pursuant to Schedule 2 of the [Workers' Compensation Act]?'. Item 13 of sch 2 of the Workers' Compensation Act refers to 'loss of arm at or above elbow'.

15 At the hearing, Mr Seddon informed Dr Alexeeff that he had brought all the medical reports which had been requested by Mr Melville. Dr Alexeeff replied that he had all the necessary reports and did not need to see any reports from Mr Seddon except the x-ray which Mr Seddon had brought with him.

16 Two of the reports which Mr Seddon had brought to the hearing were reports which the Medical Assessment Panel did not have and which concerned the injury to his right arm. These were reports from Dr Croser (15 April 2002), and Dr Goodheart (1 September 2009).

17 The 15 April 2002 report by Dr Croser is very short. It concludes that Mr Seddon had 5% loss of effective use of the right upper limb.

18 In his 1 September 2009 report, Dr Goodheart explains that Dr Goodheart's opinion has not changed since his earlier report of 27 March 2007.

19 The Medical Assessment Panel had a copy of Dr Goodheart's 27 March 2007 report. In the 27 March 2007 report, Dr Goodheart referred to Dr Croser's 15 April 2002 conclusion of 5% loss of use of the right upper limb (page 2). However, Dr Goodheart explained that he considered that Mr Seddon had suffered a permanent 15% loss of the full and efficient function of the right arm at or above the elbow in accordance with Item 13.

20 The Medical Assessment Panel asked Mr Seddon a number of questions. Dr Alexeeff and Dr La Bianca then examined Mr Seddon. Mr Seddon was subsequently asked further questions by the Panel. Those questions included enquiries by Dr Alexeeff about Mr Seddon's right shoulder. Mr Seddon was asked by Dr Alexeeff if he had a family history of arthritis. Mr Seddon replied that his mother suffered from rheumatoid arthritis.

The determinations by the Medical Assessment Panel

21 On 10 September 2010, the Medical Assessment Panel provided its determination on the questions referred. The determination is contained in a four page report which is very detailed in parts. Counsel for Mr Seddon submits that the effect of the determination is that the Panel assessed Mr Seddon's total permanent disability at 27%.

22 In relation to question 4, concerning the permanent degree of loss of use of Mr Seddon's right arm, the Panel concluded as follows:

The panel is of the view that in percentage terms, [Mr Seddon] retains a zero degree permanent loss of use of his right arm pursuant to Schedule 2 of the [Workers' Compensation Act]. With reference to Schedule 2, this is applicable to Item 13 - loss of arm at or above elbow.

...

[Mr Seddon] did advise of right shoulder symptoms and demonstrated signs consistent with the presence of rotator cuff disease / subacromial bursitis. The panel was of the view that this was unrelated to the accident.

23 On 16 September 2010, Mr Seddon's solicitors wrote to the Director of the Dispute Resolution Directorate and said that the determination of the Medical Assessment Panel was based on the issue of causation and that the Panel had acted outside its jurisdiction.

24 The argument in the letter from Mr Seddon's solicitors was that it is not within the jurisdiction of the Medical Assessment Panel to determine questions of causation. They referred to Re The Medical Assessment Panel; Ex parte Ansett Australia Ltd v The Medical Assessment Panel (1998) 19 WAR 395.

25 It seems, although it is not explicit, that the point being made by Mr Seddon's solicitors was that the Medical Assessment Panel had acted beyond jurisdiction by considering whether symptoms shown by Mr Seddon in relation to his right shoulder were related to the accident. Those symptoms were right shoulder symptoms and signs consistent with the presence of rotator cuff disease / subacromial bursitis.

26 Mr Seddon's solicitors requested that the Director make a determination that the Medical Assessment Panel had acted outside its jurisdiction. They sought to have the answer to question 4 (Item 13) severed from the Panel's determination. Mr Seddon's solicitors also requested that this question of the Item 13 degree of permanent disability be referred back to the Medical Assessment Panel to be addressed on the papers.

27 On 10 November 2010, Arbitrator Spivey wrote to Dr Alexeeff raising two issues arising from the reasons for the Panel's 10 September 2010 determination. One of those issues was the complaint made by Mr Seddon's solicitors. The arbitrator referred to the comment by the Medical Assessment Panel that 'the presence of rotator cuff disease / subacromial bursitis was unrelated to the accident'. The arbitrator did not explain the allegation that the Panel had impermissibly relied upon the origin or cause of the injury. Instead, the arbitrator said the following:

[I]n the reasons the panel has commented about the presence of right shoulder symptoms and demonstrated signs consistent with the presence of rotator cuff disease / subacromial bursitis which was unrelated to the accident.

From the above it would seem [Mr Seddon] could have a percentage loss of use of the right shoulder...

28 On 13 December 2010 the Medical Assessment Panel replied to the arbitrator. The Panel said this:

In regard to the first matter, specifically, the response to Question 4, [Mr Seddon] was found to have evidence of low grade right shoulder rotator cuff disease / subacromial bursitis. No history of right shoulder injury was obtained. The panel did note a family history of Rheumatoid arthritis (mother). Whilst [Mr Seddon] did display some anterior soft tissue swelling and positive impingement signs, the panel was unanimously of the view that there was no evidence of a permanent loss of the use of the right arm pursuant to Schedule 2 of the Act. On this basis, a zero (0) degree permanent loss of use of the right arm assessment, referable to Item 13 of Schedule 2 was provided. Indeed, [Mr Seddon] was not particularly aware of any right shoulder pathology.

The threshold test for an order nisi ('unless' order)

29 There is considerable authority in Western Australia concerning the threshold test to be applied for an order nisi (unless order). Some authorities have suggested that the test is twofold: (1) does the applicant have an arguable case?; and (2) does the applicant have reasonable prospects of success?: see Woodley v Minister for Indigenous Affairs [2009] WASC 251 [37] (Martin CJ). Other authorities have suggested that the test is simply one of whether an arguable case exists: Cazaly Iron Pty Ltd v The Hon John Bowler MLA, Minister for Resources [2006] WASCA 282 [54] (Buss JA). Many of the authorities which raise these two approaches are considered and, with respect, clearly summarised in Re Her Honour Judge Schoombee; Ex parte Attorney General for Western Australia [2011] WASC 23 [11] - [18] (Corboy J).

30 The tendency in recent cases has been to apply both tests, at least where the judge is satisfied that both tests are met: Re Her Honour Judge Schoombee [18]; Eclipse Resources Pty Ltd v Department of Environment and Conservation [2010] WASC 360 [52] (Corboy J); Re Warden P Roth; Ex Parte Cazaly Iron Pty Ltd [2011] WASC 226 [26] (Beech J). I have also taken this approach.

31 The practical effect of applying both tests is, in effect, to apply the more rigorous two-fold approach. It does not make a difference where, as in this case, both tests are met. However, a difference would arise if a judge concluded that there was an arguable case but that the case did not have reasonable prospects of success. In those circumstances, I consider that an order nisi should not be granted. A respondent should not be required to make submissions before a court to prevent orders which have no reasonable prospect of success.

32 It may be that cases could arise where a judge has sufficient information to determine that a matter is arguable but insufficient information to determine whether or not there are reasonable prospects of success. This is not one of those cases. I have sufficient material to reach the conclusion that there is an arguable case in relation to each of the alleged jurisdictional errors, and that Mr Seddon has reasonable prospects of success in relation to obtaining an order absolute.

The privative clause in the Workers' Compensation Act

33 Section 145E(6) of the Workers' Compensation Act provides that a determination by the Medical Assessment Panel is final and binding on the worker. Section 145E(9) then provides that:

A decision of a medical assessment panel or anything done under this Act in the process of coming to a decision of a medical assessment panel is not amenable to judicial review.

34 This privative clause is the first hurdle for Mr Seddon in his submissions that the determinations of the Medical Assessment Panel should be quashed for jurisdictional error.

35 Counsel for Mr Seddon has three arguments why this privative clause in the Workers' Compensation Act does not bar judicial review of the determination of the Medical Assessment Panel for jurisdictional error.

36 First, counsel argues that the privative clause does not apply in this case. Section 145E(9) was introduced on 14 November 2005 by the Workers' Compensation Reform Act 2004 (WA), s 108. That section provides that the previous s 145E(5) be repealed and that new subsections (5) - (9) be inserted. The section which was 'repealed' had provided that determinations of the medical assessment panel were final and binding. That provision was repeated in the new s 145E(6).

37 The provisions of the Workers' Compensation Act which existed prior to 14 November 2005 would not prevent Mr Seddon from asserting his claim for judicial review for jurisdictional error. Although those provisions say that determinations of a medical assessment panel are 'final and binding', they do not exclude judicial review: Andreassen v Rural West Pty Ltd [2007] WASCA 265 [14] (Wheeler & Pullin JJA, Le Miere AJA); Hockey v Yelland [1984] HCA 72; (1984) 157 CLR 124, 130 (Gibbs CJ).

38 The first argument made by counsel in support of the proposition that s 145E(9) does not prevent Mr Seddon's claims for judicial review relies on the fact that Mr Seddon's accident occurred on 17 March 2001. It is submitted that the privative clause introduced in 2005 cannot affect his rights in relation to any determination by a Medical Assessment Panel. The submission was that s 108 of the Workers' Compensation Reform Act is (as it provides) a repealing provision. A repealing provision does not affect any 'right, interest, title, power or privilege created, acquired, accrued, established or exercisable or any status or capacity existing prior to the repeal': see s 37(1)(c) Interpretation Act 1984 (WA). So, it was submitted, Mr Seddon's right, or power, to obtain a determination from a medical assessment panel cannot be affected by the repealing provision.

39 Counsel argued that the same result would be reached even if s 108 were an amending provision. The reason why s 108 may be an amending provision is because prior to 14 November 2005 there was no provision of the Workers' Compensation Act which conferred powers of judicial review. Hence, there was nothing to 'repeal' by the enactment of s 145E(9).

40 It may be that s 108 was a partial repeal of the general source of power in s 16(1) of the Supreme Court Act 1935 (WA): Andreassen v Rural West [22] - [23] (Wheeler & Pullin JJA, Le Miere AJA). But, counsel submitted that it was not necessary to resolve this point because if s 108 is an amending provision, and not a repealing one, the common law rules of construction require s 108 to be read as having an operation which is prospective only. This would achieve the same result as s 37 of the Interpretation Act.

41 The common law approach in relation to amending provisions has similarities to the approach to repealing provisions in s 37 of the Interpretation Act: Mathieson v Burton [1971] HCA 4; (1971) 124 CLR 1, 22 (Gibbs J). At common law there is (loosely) said to be a 'presumption' that an amendment will not affect substantive rights, even if those substantive rights are, in the words of Sir Henry Maine, 'secreted in the interstices of procedure': Colley v Futurebrand FHA Pty Ltd [2005] NSWCA 223; (2005) 63 NSWLR 291, 295 [15] (Handley JA). See the discussion in Victrawl Pty Ltd v Telstra Corporation Ltd [1995] HCA 51; (1995) 183 CLR 595, 615 - 616 (Deane, Dawson, Toohey & Gaudron JJ).

42 If this submission were the only basis upon which Mr Seddon were able to resist the application of the privative clause then I would have had difficulty concluding that he had reasonable prospects of success. This is because it may be difficult for Mr Seddon to establish a right or power which he had that was accrued, or even inchoate, on 13 November 2004, prior to the reforming provision in s 108 of the Workers' Compensation Reform Act.

43 The operation of the Workers' Compensation Act is different from a common law right to damages. A common law right to damages, subject to legislation, accrues on the happening of the events which give rise to the defendant's obligation to pay damages: Dossett v TKJ Nominees Pty Ltd [2003] HCA 69; [2003] HCA 69; (2003) 218 CLR 1, 8 [21] (Gummow, Hayne & Heydon JJ). Even a right to apply for leave to commence an action for damages is an accrued right: Barminco Investments Pty Ltd v O'Brien [2006] WASCA 88 [78] (Pullin JA).

44 Under the Workers' Compensation Act the position is different. Although Mr Seddon's accident had occurred prior to 13 November 2004, at that date he had not yet filed his Form 22 with the Dispute Resolution Directorate for the Referral of Question of Degree of Disability for not less than 30%. Even if that form had been filed, it would only have given rise to the possibility that an arbitrator may refer to a medical assessment panel a question as to the nature and extent of Mr Seddon's injuries: s 210 Workers' Compensation Act. And even when that referral occurred, any right to seek judicial review for jurisdictional error of the panel's determination would require the panel to have made a jurisdictional error. At 13 November 2004 it is difficult to see the right, interest, power etc of Mr Seddon which was affected by s 108: compare Fisher v Madden [2002] NSWCA 28; (2001) 54 NSWLR 179, 183 - 184 [12] (Meagher JA)

45 Counsel for Mr Seddon had two other submissions for why the privative clause in s 145E(9) did not apply to his claim. The next submission was that the section should be construed as not excluding judicial review for jurisdictional error. Hence:

(1) the words 'a decision' should be read as meaning 'a decision within jurisdiction' and not a decision made without jurisdiction;

(2) the words 'anything done under this Act' should be read to mean anything validly done under this Act; and

(3) the words 'not amenable to judicial review' should be read as 'not amenable to judicial review for non-jurisdictional error'.

I am satisfied that this submission is arguable and has reasonable prospects of success.

46 As to (1), the term 'decision', and even the term 'purported decision', have been held by the High Court of Australia not to exclude judicial review for jurisdictional error: Kirk v Industrial Relations Commission of New South Wales [2010] HCA 1; (2010) 239 CLR 531, 582 - 583 [103] - [105] (French CJ, Gummow, Hayne Crennan, Kiefel & Bell JJ). See also Plaintiff S157/2002 v Commonwealth of Australia [2003] HCA 2; (2003) 211 CLR 476, 506 [76] (Gaudron, McHugh, Gummow, Kirby & Hayne JJ).

47 As to (2), in the context of common law causes of action, the High Court of Australia has recently held that these do not arise 'under' the Accident Compensation Act 1985 (Vic). They are external to that Act: Cashman v Brown [2011] HCA 22 [36] (French CJ, Hayne, Crennan, Kiefel & Bell JJ). There must, at least, be a strong argument that jurisdictional errors are not errors 'under' the Workers' Compensation Act: compare Plaintiff S157/2002 v Commonwealth of Australia (506) [76] (Gaudron, McHugh, Gummow, Kirby & Hayne JJ).

48 The construction of the words in (3) is more difficult. In Andreassen v Rural West [23], the Full Court appeared to consider that those words excluded all prerogative relief. However, that issue was not argued before the Full Court. Nor did the Full Court express a concluded view. Nor was a view necessary for the decision in that case.

49 There are two reasons why it is arguable that 'not amenable to judicial review' should be confined to judicial review for non-jurisdictional errors. The first is, as I explain below, that this construction may be necessary for the law to be constitutional. Other things remaining equal, a construction of legislation which produces the result that the legislation is constitutional should be preferred to one that would not: Chu Kheng Lim v Minister for Immigration, Local Government & Ethnic Affairs (1992) 176 CLR 1, 14 (Mason CJ); Attorney-General (Vic) v Commonwealth [1945] HCA 30; (1945) 71 CLR 237, 267 (Dixon J).

50 The second reason why 'not amenable to judicial review' might be confined to review for non-jurisdictional error is because that construction would be consistent with the well established approach which is taken to the words discussed above in (1) and (2). In R v Nat Bell Liquors Ltd [1922] 2 AC 128, 162, Lord Sumner, delivering the advice of the Privy Council, said that clauses limiting the power of a court to grant certiorari and quash a decision should be read in that way only if 'explicit language is used' so that if certiorari were to be taken away it is done 'explicitly and unmistakeably'.

51 I consider that it is also arguable that the construction discussed above would not render the provision meaningless. There is a clear conceptual distinction between judicial review of a decision for a non-jurisdictional error of law, and judicial review of a decision for jurisdictional error: Kirk v Industrial Relations Commission of New South Wales (576, 581) [80], [100]; Plaintiff S157/2002 v Commonwealth of Australia (506) [76] (Gaudron, McHugh, Gummow, Kirby & Hayne JJ). If 'judicial review' means 'judicial review for non-jurisdictional error' then the privative clause will still operate in relation to non-jurisdictional errors of law.

52 Even if this conclusion on construction were not arguably correct, counsel for Mr Seddon had a third submission. When this application first came before me, I asked counsel if he was raising any constitutional issues. The matter was adjourned for unrelated reasons, but during the adjournment counsel issued notices under s 78B of the Judiciary Act 1903 (Cth) indicating that an alternative submission would be made in the proceedings concerning an issue arising under the Constitution. That issue is that if s 145E(9) were construed to exclude judicial review for jurisdictional error then the subsection would be beyond State legislative power. None of the Attorneys-General sought to intervene at this stage of the proceedings.

53 I consider that it is arguable that if s 145E(9) were construed to exclude judicial review for jurisdictional error then it would be beyond State legislative power. I consider that such an argument would have reasonable prospects of success. In a considered obiter dictum in Kirk v Industrial Relations Commission of New South Wales (581) [100], French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ said that the distinction between jurisdictional and non-jurisdictional error marks the relevant limit on State legislative power:

Legislation which would take from a State Supreme Court power to grant relief on account of jurisdictional error is beyond State legislative power.

54 For these reasons, I consider that there is an arguable case that the privative clause in s 145E(9) of the Workers' Compensation Act does not exclude relief sought on the basis of jurisdictional error. I consider that such a submission has reasonable prospects of success.

55 It is now commonly recognised that the line between a jurisdictional error and a non-jurisdictional error of law can sometimes be a difficult line to draw: Kirk v Industrial Relations Commission of New South Wales (574) [72]; Craig v The State of South Australia [1995] HCA 58; [1995] HCA 58; (1995) 184 CLR 163, 178 (Brennan CJ, Deane, Toohey, Gaudron & McHugh JJ). But the High Court of Australia has maintained that the difficulty of drawing a bright line should not lead to the conclusion that no line can be drawn at all: Re Refugee Review Tribunal; Ex parte Aala [2000] HCA 57; (2000) 204 CLR 82, 141 [163] (Hayne J). In England, following R v Hull University Visitor; Ex parte Page [1992] UKHL 12; [1993] AC 682, the courts have abandoned the task of trying to draw a line. But Australia has never followed this approach, despite the urgings in commentary by the late Lord Cooke and D M Gordon, and in the judgments of Kirby J: Re Minister for Immigration and Multicultural Affairs; Ex parte Miah [2001] HCA 22; (2001) 206 CLR 57, 123 [212].

56 A common difference between a jurisdictional error and a non-jurisdictional error of law is that the jurisdictional error generally involves a decision maker who mistakenly asserts or denies jurisdiction, or who misapprehends or disregards the nature or limits of its functions or powers within jurisdiction: Kirk v Industrial Relations Commission of New South Wales (573 - 574) [72]; Craig v The State of South Australia (177).

57 One obvious instance of jurisdictional error broadly involves entertaining a matter beyond the limits of a decision maker's powers. For instance, the failure by the Industrial Court in Kirk v Industrial Relations Commission of New South Wales to comply with required rules of evidence was a jurisdictional error which led to the conviction of Mr Kirk. Three examples of jurisdictional error within this broad category were cited in Craig v The State of South Australia (177 - 178), and quoted in Kirk v Industrial Relations Commission of New South Wales (574) [72]:

(2) disregard of a matter that a relevant statute requires to be considered as a condition of jurisdiction; and

(3) misconstruction of a relevant statute, thereby misconceiving the nature of the function being performed or the exercise of powers.

58 As to (1), a jurisdictional fact is a particular fact upon which the valid exercise of statutory power depends: Corporation of the City of Enfield v Development Assessment Commission [2000] HCA 5; (2000) 199 CLR 135, 148 [28] (Gleeson CJ, Gummow, Kirby & Hayne JJ); Gedeon v Commissioner of the New South Wales Crime Commission [2008] HCA 43; (2008) 236 CLR 120, 139 [43] (Gummow, Kirby, Hayne, Heydon, Crennan & Kiefel JJ). Whether the presence or absence of a fact is jurisdictional, so that the exercise of statutory power depends upon it, is a matter of statutory construction: Timbarra Protection Coalition Inc v Ross Mining NL [1999] NSWCA 8; (1999) 46 NSWLR 55, 64 [39] - [40] (Spigelman CJ).

59 As to (2) and (3) these also involve questions of statutory construction. But the third example, involving a misconstruction of a statute which causes misconception of the exercise of a function or power, may sometimes involve difficult distinctions between jurisdictional and non-jurisdictional error: Craig v The State of South Australia (178); Kirk v Industrial Relations Commission of New South Wales (574) [72].

60 These three instances of jurisdictional error which (broadly) involve the category of entertaining matters beyond the limits of a decision maker's powers are non-exhaustive. Further, in Kirk v Industrial Relations Commission of New South Wales (573) [71] the High Court of Australia also referred, with apparent approval, to eight categories of jurisdictional error described by Professor Aronson: Aronson 'Jurisdictional Error without the Tears' in Groves and Lee (eds) Australian Administrative Law: Fundamentals, Principles and Doctrines (Cambridge University Press, 2007) 330, 335 - 336. The categories described by Aronson included a breach of natural justice. They also included disregarding matters which were relevant considerations under the legislation, or having regard to irrelevant considerations, provided that these 'relevancy' considerations are preconditions to the validity of the decision: see Craig v The State of South Australia (179).

61 It is possible that there may be some instances of jurisdictional error which are so insignificant that a court will decline to grant relief: Kirk v Industrial Relations Commission of New South Wales (565 - 566) [53] (French CJ, Gummow, Hayne, Crennan, Kiefel & Bell JJ), (585) [114] (Heydon J).

The first alleged jurisdictional error: 'no evidence'

62 The first jurisdictional error which was asserted by counsel for Mr Seddon was that the Medical Assessment Panel reached its conclusion without any evidence. It should be clear from the discussion above that this will not necessarily be a jurisdictional error. In exchange with the bench in oral submissions counsel submitted that the jurisdictional error which was asserted was that an inference could be drawn from the failure of the Panel to reach its conclusion by reference to the evidence before it. That inference was that the Panel had disregarded relevant considerations (ts 32). But even this is not sufficient. As explained above at [60], and as counsel accepted, it is necessary that the relevant considerations which were disregarded were preconditions to the validity of the decision.

63 This submission focused heavily upon the reasons in the 13 December 2010 determination of the Medical Assessment Panel. The sentence in those reasons upon which counsel fastened was where the Panel explained that '[w]hilst [Mr Seddon] did display some anterior soft tissue swelling and positive impingement signs, the panel was unanimously of the view that there was no evidence of a permanent loss of the use of the right arm' (emphasis added).

64 Counsel submitted that there was evidence of permanent loss of use of the right arm. For instance, the Panel had the report of Dr Goodheart, dated 27 March 2007. In that report Dr Goodheart had assessed Mr Seddon's permanent loss of function of his right arm above the elbow as a 15% loss. The Panel also had a report from Dr Home submitted by Mirvac (WA), dated 27 May 2002, which assessed this residual disability at 2%. Finally, although the Panel concluded that this was unrelated to the accident, the Panel had also apparently accepted evidence from Mr Seddon that he had 'right shoulder symptoms and demonstrated signs consistent with the presence of rotator cuff disease / subacromial bursitis'.

65 Counsel for Mr Seddon also relied upon the failure of the Medical Assessment Panel to consider the reports of Dr Goodheart and Dr Croser which were proffered to it by Mr Seddon and which also referred to degrees of permanent loss of use of the right arm: see above at [16] - [19]. This matter was relied upon only in support of this 'no evidence' ground. No submission was made that this conduct of the Chairman of the Medical Assessment Panel had denied natural justice to Mr Seddon.

66 I consider that it is arguable, and that there are reasonable prospects for successfully arguing, that (1) a precondition to the exercise of the Medical Assessment Panel's jurisdiction was that the Panel must form a view based on the evidence before it; and (2) that an inference could be drawn from reasons given on 13 December 2010 by the Panel that in reaching its conclusions the Panel did not have regard to the evidence before it.

67 An issue which is related to this first allegation of jurisdictional error is the status of the 13 December 2010 determination. During oral argument I raised this matter with counsel for Mr Seddon. At least three questions arise:

(1) If the 10 September 2010 determination was not infected by jurisdictional error, was there any power for the arbitrator to refer question 4 back to the Medical Assessment Panel, and for the Panel to provide further reasons in its 13 December 2010? (The source of any relevant power would seem only to be in s 210 of the Workers' Compensation Act, read with s 145A.)

(2) In any event, could the reasons given on 13 December 2010 be evidence of the considerations taken into account by the Panel in its 10 September 2010 determination?

(3) If the 10 September 2010 determination were infected by jurisdictional error (which I consider below), then could that jurisdictional error have been 'cured' by the reasons given on 13 December 2010? In other words, could the 13 December 2010 reasons stand alone, supporting a determination of the Medical Assessment Panel, even though those reasons draw from the 10 September 2010 reasons?

68 These matters will need to be considered in the context of argument for any absolute order quashing the determinations of the Medical Assessment Panel.

The second alleged jurisdictional error: 'acting beyond jurisdiction'

69 The second allegation of jurisdictional error was described by counsel as a submission that the Medical Assessment Panel acted beyond jurisdiction. In its 10 September 2010 determination the Panel set out its conclusion that there was a zero degree permanent loss of use of Mr Seddon's right arm. As set out above at [22], the Panel then explained that Mr Seddon had advised of right shoulder symptoms which were consistent with the presence of rotator cuff disease / subacromial bursitis. However, counsel submitted that the Panel apparently disregarded this advice from Mr Seddon, expressing the view that this was unrelated to the accident. The submission was that if the Panel had not discounted the symptoms because of its view that they were unrelated to the accident then it would have found a percentage loss of use of Mr Seddon's right arm.

70 The arbitrator seems to have taken a similar view. When the arbitrator wrote to the Panel on 10 November 2010, the arbitrator suggested that if these symptoms were taken into account 'it would seem [Mr Seddon] could have a percentage loss of use of the right shoulder'. In his letter the arbitrator did not inform the Panel of the concern that the Panel had based its determination concerning loss of use of the right arm by impermissibly excluding non-work related causes of the injury.

71 Counsel submitted, and I accept, that it is arguable with reasonable prospects of success, that the reasons given by the Medical Assessment Panel on 13 December 2010 can be construed as having taken the same approach as their reasons given on 10 September 2010. In its 13 December 2010 reasons, the Panel said that no history of right shoulder injury was obtained and, in the next sentence, said that it 'did note a family history of Rheumatoid arthritis (mother)'. It is arguable that an inference can be drawn that the reason why no history of right shoulder pathology was obtained was because the Panel considered that any symptoms were attributable to a family history of Rheumatoid arthritis. The Panel also recognised that Mr Seddon displayed some anterior soft tissue swelling and positive impingement signs. The examination at which this observation was made by the Panel was more than 10 years after the accident.

72 Counsel also submitted, in effect, that the inference of this impermissible process of reasoning might be strengthened by the reference in the 10 September 2010 report to symptoms being unrelated to the accident. The submission was essentially that nothing in the 13 December 2010 reasons expressly dispels the impression, created by the 10 September 2010 reasons, that in reaching its determination the Panel had rejected matters which were not related to the accident.

73 Counsel submitted that questions of causation cannot be considered by the Medical Assessment Panel. There is a literal statement to that effect at (399) of Re The Medical Assessment Panel; Ex parte Ansett Australia Ltd v The Medical Assessment Panel. The Full Court said in that case that issues of 'causation' were beyond power (399). However, that statement was made in the context of a determination by the Medical Assessment Panel that a depressive condition had been caused by Mr Bellart's work environment. The Full Court held that such a determination was not relevant to the statutory functions of the panel.

74 It is not correct that questions of causation are irrelevant to the exercise by the Medical Assessment Panel of its statutory powers. In Andreassen v Rural West [12], the Court of Appeal explained that questions of causation of the injury may need to be determined in order to ascertain whether the disability exists or whether it is permanent. The Court of Appeal gave Bloomfield v Liebherr Australia Pty Ltd [2007] WASCA 154 as an example. In that case it was necessary to determine whether the cause of the applicant's cognitive problems and skin disorder was poisoning or chemical injury because if they were then the condition would not be permanent. However, the Court of Appeal in Andreassen v Rural West emphasised that 'it is no part of the Panel's task to determine questions of causation, when it is asked to assess the degree of a worker's disability' [12] (original emphasis).

75 By s 210 of the Workers' Compensation Act, the statutory duty of the Medical Assessment Panel in this case was to determine 'the nature or extent of an injury'. It is arguable that the Panel was required by the Workers' Compensation Act to confine its reasoning to this duty, and it is arguable that the Panel misconceived the extent of its powers by considering the issue of how Mr Seddon's injury arose. I am satisfied that these matters have reasonable prospects of success.

The third alleged jurisdictional error: 'inadequate reasons'

76 The final alleged jurisdictional error is that the Medical Assessment Panel failed to give adequate reasons.

77 Section 145E(3) of the Workers' Compensation Act provides that '[t]he determination and the reasons for making it are to be given in writing signed by the Chairman'. It is submitted that, by implication from s 145E(3), the reasons given must be sufficient to explain the basis upon which the determination has been reached.

78 If such an implication can be made then the failure to provide sufficient reasons could fall within one of the conventional instances of jurisdictional error such as the disregard of a matter that a relevant statute requires to be considered as a condition of jurisdiction. In Kirk v Industrial Relations Commission of New South Wales (577) [83], the majority joint judgment said that 'in at least some cases the failure to give reasons may constitute a failure to exercise jurisdiction'.

79 One of the cases referred to by the majority in the footnote to that statement was Donges v Ratcliffe [1975] 1 NSWLR 501. In that case, Rath J considered whether a statutory requirement in s 34(1) of the Liquor Act 1912 (NSW) had been met. The statutory requirement was that the licensing court was required to state the reasons for its refusal of an application for a license. Rath J considered that the court had failed to do so, characterising the obligation as one 'to state, in an adequate and proper manner, reasons for refusal' (510). His Honour considered that one reason why the court had failed to do this was because there was no 'sufficient statement of the considerations that should be taken into account' (510 - 511).

80 Counsel for Mr Seddon submitted that the Medical Assessment Panel had failed to state adequately its reasons for conclusion. In particular counsel argued that the Panel had failed to state adequately the reasons why it considered that there was 'no evidence' that Mr Seddon had permanently lost the use of the right arm pursuant to sch 2 of the Act.

81 This third alleged jurisdictional error might appear, at first blush, to be a submission that the Panel was mistaken in fact (ie there was evidence that Mr Seddon had permanently lost the use of his right arm). However, I am satisfied that it is arguable, with reasonable prospects of success, that this fact was a jurisdictional fact and that the alleged error would be a jurisdictional error.

82 Although I have formulated the three grounds of alleged jurisdictional error slightly differently from the way that they were raised in written submissions, I consider that an arguable case has been established, with reasonable prospects of success, that the Medical Assessment Panel committed jurisdictional errors in relation to each ground.

83 I will hear from counsel as to the form of order which should be made.